Delhi District Court
State vs . Harnek Singh Fir No. 245/2011 on 22 February, 2020
State vs. Harnek Singh FIR No. 245/2011
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
State vs. Harnek Singh
FIR No. 245/2011
U/sec. 382/411/34 IPC
PS: Hari Nagar
Date of institution of the case: 25.01.2012
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 22.02.2020
Unique I. D. No. 68069/2016
J U D G M E N To
a) Date of commission of the offence : 02.06.2011
b) Name of the complainant : Smt. Raminder Kaur
c) Name of the accused and his parentage : Harnek Singh
S/o Sardar Darshan Singh
R/o H.No.E-5A, Shiv Vihar, Nilothi
Extension, Nangloi, Delhi.
d) Offence complained of : Sec. 382/411/34 IPC
e) Offence charged of : Sec. 382/411/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 22.02.2020
i) Brief reasons for the just decision of the case:
Succinctly stated facts of the prosecution case are that on 2 June 2011 at about
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State vs. Harnek Singh FIR No. 245/2011
08:15 p.m., at Traffic Signal, Hari Nagar Depot, two motorcyclists snatched the
bag of the complainant Smt. Raminder Kaur. She tried to save her handbag but they
pushed her and ran away from there. She reported the matter to police and on the
basis of her statement/Ex.PW1/A, present FIR under section 382/34 IPC was
registered against unknown persons at police station Hari Nagar.
On 27 November 2011, accused Harnek Singh was arrested by the police of police
station Tilak Nagar wherein he allegedly suffered disclosure statement regarding
his involvement in the present case. A mobile phone was recovered from his
possession. Consequently, he was arrested in the present case and an application
was moved for holding his Test Identification Parade (TIP) but he declined to
participate in the TIP proceedings on the ground that his photographs had been
clicked by the police.
After completion of the investigation, charge-sheet under sections 382/411/34 IPC
was filed before the court. Consequently, accused Harnek Singh was summoned to
face the trial. On his appearance, in the Court, the copies of documents, relied upon
by the prosecution, were supplied to him as per norms.
Vide order dated 15 May 2012, charge under sections 382/411/34 IPC was framed
against the accused to which he pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined
as many as seven witnesses.
Pw1/Head Constable Praveen Kumar was the Duty Officer, who had registered the
FIR Ex.PW1/A.
PW1-A/Smt. Raminder Kaur was the complainant as well as the victim. She
testified that on 02.06.2011 at about 8:15 p.m., she was coming by a TSR from her
office and was carrying a handbag containing valuables. When her TSR stopped at
Red Light Signal, two boys came on a motorcycle and the pillion rider snatched
her bag. When she tried to save her bag, he pushed her due to which her head
struck against the auto. Thereafter, they fled away from there. She reported the
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State vs. Harnek Singh FIR No. 245/2011
matter to police. Police recorded her statement Ex.PW1/A. However, she stated that
she cannot identify those persons as it was night time and due to panic, she could
not see his face.
Since the witness resiled from her previous statement, she was cross-examined by
the learned APP for the State with the leave of court.
She during her cross-examination by the learned APP for the State denied the
suggestion that she was deliberately not identifying the accused due to fear.
However, she admitted having told the police that she can identify the accused
Sikh boy. She offered an explanation for the contradiction stating that the statement
was made one year back and at that time she might have tried to identify the
snatcher. She showed her inability to identify the snatcher due to lapse of time and
that it was dark at the time of incident. When her attention was drawn towards the
accused present in the court, she stated that she cannot say if the accused was the
same person who had snatched her bag.
She further stated that she can try to identify her phone. However, when the phone
was shown to her, she stated that she cannot say whether it was the same mobile
phone which she used to use. She stated that it can be checked by IMEI number.
Therefore, the phone was opened and its IMEI number was checked. On
comparison with the bill of mobile phone/Mark PW1/A, IMEI was found the same.
Thereafter, further examination was deferred for want of original bill. On the next
date, complainant appeared and stated that she cannot produce the original bill as
the same was not found.
PW2/Head Constable Vijender Singh, PW3/Head Constable Ved Pal Singh and
PW4/Head Constable Jai Bhagwan, PS Tilak Nagar had apprehended the accused
on the basis of secret information. They stated that accused got recovered stolen
mobile phone from his house.
PW5/Head Constable Ishwar Singh was the MHC (M), PS Tilak Nagar.
PS6/SI Ramavatar was the Duty Officer. He proved the DD Entry No. 3-
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State vs. Harnek Singh FIR No. 245/2011
A/Ex.PW6/A regarding apprehension of accused.
PW7/SI Surender Singh was the IO of the case.
After prosecution evidence, statement of accused was recorded under section 313
of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) and
opportunity was given to him to lead DE, however, he did not examine any witness
in his defence. Consequently, DE was closed at the request of the accused.
I have heard the learned counsel for the accused and the learned APP for the State
and have perused the records very carefully.
Issues
1. Whether the accused had committed theft of the handbag belonging to the
complainant after preparation made for causing death, hurt or restraint in order to
the committing of theft?
2. Whether the accused received and retained the stolen property i.e. the mobile
phone "knowing or having reason to believe the some to be stolen property"?
Decision and brief reasons for the same
The rule that every accused person is presumed innocent until he is proved guilty
and that it is the duty of the prosecution to prove the guilt of the accused beyond
reasonable doubt is fundamental to the system of justice practiced in this country
and in several other countries. Indeed it is entrenched in the Constitution that every
person charged with a criminal offence shall be presumed to be innocent until he is
proved or has pleaded guilty.
Issue No.1
In every criminal trial, the identity of the malefactor must be established by proof
beyond reasonable doubt. Indeed, the first duty of the Prosecution is not to prove
the crime but to prove the identity of the offender, for even if the commission of
the crime can be established, there can be no conviction without proof of identity
of the offender beyond reasonable doubt.
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State vs. Harnek Singh FIR No. 245/2011
Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person
facing the trial is, in fact, the same person who committed the offence.
The Hon'ble High Court of Delhi while dealing with the identity of the accused in
the case of Ashraf vs State held as under:-
"....However, in case a witness is completely hostile with
regard to identity of the accused even in his examination-in-
chief and nothing could be elicited from him to show the
involvement of the accused in the offence in the cross-
examination by the APP, such a testimony cannot be
accepted and made the basis of the conviction....."
The present FIR was lodged on 2 June 2011 against un-known persons. Accused
Harnek Singh was implicated on the basis of his alleged disclosure statement given
to the Investigating Officer during the course of investigation, consequent recovery
of stolen mobile phone and on his refusal to participate in the Test Identification
Parade.
Since accused Harnek Singh was not apprehended at the spot, his identity in issue.
Now let us see if the prosecution has been able to prove the identity of the accused
beyond reasonable doubt?
To bring home the guilt of the accused, prosecution has cited as many as twelve
(12) witnesses in the list of witnesses annexed with the charge-sheet. Out of these
twelve witnesses, PW1-A was the complainant as well as the victim while rest
witnesses are formal in nature and the identity of the accused and his guilt cannot
be established from their testimonies, inasmuch as, the alleged incident was neither
committed in their presence nor it is the case of the prosecution.
The complainant Smt. Raminder Kaur stepped into the witness box as PW1-A and
exhibited her statement as Ex. PW1/A. She during her examination-in-chief stated
that he cannot identify the persons who had snatched her handbag due to darkness.
Therefore, she was cross-examined by the learned APP for the State with the leave
of the court but she failed to identify or recognize the accused in the dock as the
snatcher. She was cross-examined at length by the learned APP for the State but
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State vs. Harnek Singh FIR No. 245/2011
nothing could be elicited from her which could indicate complicity of the accused
Harnek Singh in the crime. Thus, in my considered opinion, identity of the accused
Harnek Singh could not be established and in absence thereof, there is no other
material on record to connect the accused with the crime of offence as defined
under section 382 IPC.
Issue no.2
It was argued one behalf of State that the prosecution has been able to prove the
guilt of the accused Harnesk Singh beyond reasonable doubt. He further contended
that in so far as the recovery of the "mobile phone" from the possession of the
accused is concerned, unless he explains as to how he acquired possession over the
property a presumption under Illustration (a) to Section 114 of the Indian Evidence
Act, 1872 (herein after referred to as the Act) can be drawn and it can be held that
either he is a thief or receiver of the stolen property. Explaining his argument
further, learned APP for the State submitted that in a case where there is no
evidence against the accused of his participation in theft, and the prosecution case
depends entirely on his production of property, the accused can be convicted of the
offence of receiving stolen property under section 411 IPC.
Per contra, it is vehemently contended by the leaned defence counsel that it is the
duty of the prosecution in order to bring home the guilt of a person under section
411 IPC to prove that the stolen property was recovered from the possession of the
accused.
Before adverting to the rival submissions, it would be expedient to refer to section
411 of the Code. It reads as under:
411. Dishonestly receiving stolen property-Whoever
dishonestly receives or retains any stolen property, knowing
or having reason to believe the same to be stolen property,
shall be punished with imprisonment of either description for
a term which may extend to three years, or with fine, or with
both.
The term "stolen property" is defined in section 410 IPC. It reads as under:-
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State vs. Harnek Singh FIR No. 245/2011
Sec.410. Stolen property--Property, the possession whereof
has been transferred by theft, or by extortion, or by robbery,
and property which has been criminally misappropriated or
in respect of which 1[***] criminal breach of trust has been
committed, is designated as "stolen property", [whether the
transfer has been made, or the misappropriation or breach of
trust has been committed, within or without 3[India]]. But, if
such property subsequently comes into the possession of a
person legally entitled to the possession thereof, it then
ceases to be stolen property.
Thus, in every case under section 411 IPC two facts viz. that a theft was committed
and certain articles were stolen, and that the stolen articles were recovered from the
possession of the accused have to be established by direct evidence. If it is proved
that a theft was committed and that soon after it was committed, the stolen property
was recovered from the possession of the accused, Court can presume that the
accused is either the thief or the receiver of the property knowing it to be stolen.
Therefore, first issue before the court is as to whether prosecution has been able to
prove beyond reasonable doubt that the "mobile phone" allegedly recovered from
the accused Harnek Singh was a stolen property?
To prove this fact the prosecution has examined the complainant.
PW1-A/Raminder Kaur was the complainant, who set the criminal law into
motion. She testified that on 2 June 2011 at about 08:15 p.m., while she was
returning in a TSR from her office, two boys came on a motorcycle and snatched
her purse containing her valuables including a mobile phone. However, when the
mobile phone was shown to her, she stated that "I cannot say whether it is the
same mobile phone which was used by me. It may be clarified by seeing the IMEI
number."
Consequently, the mobile phone was opened and its IMEI number was found to be
354329047753285. The IMEI number matched with the number mentioned in the
copy of bill allegedly provided by the complainant/Mark PW1/A. Since the original
bill of the alleged stolen property was not part of challan, complainant was
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State vs. Harnek Singh FIR No. 245/2011
directed to produce the original bill of the mobile phone. However, she could not
produce the same.
It was argued on behalf of the learned APP for the State that copy of the bill is
admissible in evidence as secondary evidence because the original bill could not be
found.
Per contra, it was submitted on behalf of the accused that the complainant in her
complaint Ex.PW1/A has neither mentioned the IMEI number of the mobile phone
nor she stated that she can produce the bill of the mobile phone. When and where
this copy was provided to the IO is a mystery which was not solved during
evidence by the prosecution. He submitted that if the original of a document is not
available, then secondary evidence must be led by laying down foundation for
leading secondary evidence in terms of section 65 of the Indian Evidence Act
which the State has not done in this case.
Admittedly, the prosecution could not produce the original bill of the mobile phone
allegedly recovered from the house of accused Harnek Singh. On 31 October 2012,
further examination of the complainant was deferred for want of original bill of the
mobile phone. On the next date of hearing, complainant appeared and stated as
under:
"I could not find the original bill and cannot produce the same..".
Normally, the original document is the best evidence and if the primary evidence is
not available, secondary evidence can be led. Section 65 of the Indian Evidence
Act deals with the cases in which secondary evidence can be given. It reads as
under:-
65. Cases in which secondary evidence relating to documents
may be given.--Secondary evidence may be given of the exis-
tence, condition, or contents of a document in the following
cases:--
(a) When the original is shown or appears to be in the pos-
session or power-- of the person against whom the document
is sought to be proved, or of any person out of reach of, or
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State vs. Harnek Singh FIR No. 245/2011
not subject to, the process of the Court, or of any person
legally bound to produce it, and when, after the notice men-
tioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original
have been proved to be admitted in writing by the person
against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when
the party offering evidence of its contents cannot, for any
other reason not arising from his own default or neglect,
produce it in reasonable time;
(d) when the original is of such a nature as not to be easily
movable;
(e) when the original is a public document within the mean-
ing of section 74;
(f) when the original is a document of which a certified copy
is permitted by this Act, or by any other law in force in 1[In-
dia] to be given in evidence2; 1[India] to be given in evi-
dence2;"
(g) when the originals consists of numerous accounts or other
documents which cannot conveniently be examined in Court,
and the fact to be proved is the general result of the whole
collection.
In cases (a), (c) and (d), any secondary evidence of the con-
tents of the document is admissible. In case (b), the written
admission is admissible. In case (e) or (f), a certified copy of
the document, but no other kind of secondary evidence, is ad-
missible. In case (g), evidence may be given as to the general
result of the documents by any person who has examined
them, and who is skilled in the examination of such docu-
ments.
Thus, if the document is lost or destroyed then there is provision in law to lead secondary
evidence. However, in order to admit the secondary evidence, it is not sufficient to
show merely that the original document is not traceable as stated by the com-
plainant in the case in hand.
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State vs. Harnek Singh FIR No. 245/2011
While dealing with a similar situation, a Division Bench of the Hon'ble High Court
of Delhi in the case of J. Joshi vs Bank of Baroda decided on 3 August 2004 held as
under:-
"4. Section 65(c) contemplates that the secondary evidence
can be led when the party offering evidence of its contents
cannot produce it on account of acts not arising from his own
default or neglect. Merely stating that the document is not
traceable will not absolve the defendant nor will show that
the document has been lost and destroyed and may not enti-
tle him to lead secondary evidence under Section 65(c) of
the evidence Act.
5. Though, the question regarding secondary evidence will
not ordinarily be interfered by the Appellate Court, however,
it would certainly interfere, if it finds that the Trial Court has
accepted the loss as a fact without taking into consideration
the pre-requisite condition that are required by the Evidence
Act. In the present case it is not the case of the respondent
that the documents is lost or destroyed as the plea raised by the respondent is that it is not traceable.
6..... For leading secondary evidence it must be established that the party has exhausted sources and means in search of the document which was available to him. The plea of the re- spondent that the alleged personal guarantee alleged to have been executed by defendant no.3, appellant herein being not traceable will not lead to inference that it had been destroyed or lost........"
Even otherwise, the prosecution has not explained as to what were the circumstances under which the photo state copy of the bill was prepared and who was in possession of the original bill at the time its photograph was taken. It was held by the Hon'ble Punjab & Haryana High Court in the case of Harjinder Singh vs Ranjit Kaur & Others decided on 15 November, 2013 that in such a situation, doubt is created on authenticity of the Photostat copy. Relevant part of the judgment reads as under:-
Page No.10 of 14State vs. Harnek Singh FIR No. 245/2011 "A doubt was, thus, created on authenticity of the Photostat copy. It was therefore observed:
Photostat copies of documents can be prepared by manipu- lation and presented as original. Therefore, it would nor- mally be unsafe on the mere asking to allow production of Photostat copies as secondary evidence. These are admit- tedly not certified copies of the original and it is not clear as to whether these are copies of the original"
It would also be adventurous to refer a judgment passed by the Hon'ble High Court of Delhi in the case of Shakuntala vs State decided on 25 March 2011 wherein it was held that genuineness of the photocopies cannot be guaranteed and unless there is evidence that someone had compared the photocopies with the original or had obtained the photocopies from the original, photocopies would be inadmissible in evidence in absence of the original.
Thus, photocopy of the bill/Mark PW1/A is not admissible in evidence. Further, as per Ex.PW1/A, the mobile phone was of "red color", whereas the phone which was allegedly recovered from the house of accused was of "red & black colour".
Even if it is presumed the mobile phone which was produced during trial was the stolen property, still prosecution has to establish that the recovery was genuine. Because, if this court finds that the recovery was doubtful then the prosecution case would fall on the ground like pack of cards.
Let us start with the recovery allegedly made at the instance of accused. It is alleged that on 26.11.2011, PW2 to PW4 apprehended the accused on the basis of secrete information. Whilst in police custody, accused allegedly suffered a disclosure statement and got recovered a mobile phone from his house. It is pertinent to note that the said mobile phone has not been identified by the complainant during trial.
It was the defence of the accused that he was lifted from a petrol pump and later on the mobile phone was planted upon him.
Page No.11 of 14State vs. Harnek Singh FIR No. 245/2011 At the outset, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules, as applicable to NCT of Delhi, which reads as under:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
From the reading of the above mentioned rule, it is evident that all the police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office.
The Hon'ble Delhi High Court while dealing with a similar situation in the case of Rattan Lal vs. State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
In the present case, though PW2/Head Constable Vijender Singh, PW3/Head Constable Ved Pal Singh and PW4/Head Constable Jai Bhagwan have testified that on 26.11.2011 they were on special picket checking duty when they apprehended the accused. However, no such DD entry is proved by the prosecution to establish that PW2 to PW4 were actually present in the area at the relevant time in connection with picket checking duty.
In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of the police official for picket duty casts a shadow of doubt on the genuineness of prosecution version regarding apprehension of the accused at the alleged date, time and place.
Page No.12 of 14State vs. Harnek Singh FIR No. 245/2011 Furthermore, the room from where the alleged recovery was effected was not in exclusive possession of the accused.
PW3/Head Constable Jai Bhagwan during his cross-examination by the learned defence counsel stated that parents of accused were present in the house at the time of recovery.
The house, thus, was in joint occupation of the aforesaid persons and in case the prosecution wanted to nail the accused with the exclusive possession of the said article found in the said room something more was required to be done to prove that the accused was in exclusive and conscious possession of the mobile phone in the said room. However, the prosecution has failed to prove beyond reasonable doubt that the alleged mobile phone found in the said room was in exclusive and conscious possession of the accused and on that count the accused certainly deserves to be given benefit of doubt.
For the above stated reasons, I am not inclined to place any reliance on the alleged recovery of the said mobile phone at the instance of accused Harnek Singh. If the recovery is disbelieved, the whole case of the prosecution falls flat on the ground and the contention of the leaned APP for the State that presumption could be drawn from the alleged recovery does not hold water.
In Babudas vs. State of M.P (2003) 9 SCC 86, the Hon'ble Supreme Court of India while dealing with the presumption under section 114, Illustration (a) of the Act observed as under:-
".......throws great suspicion in the alleged recoveries which is the foundation of the prosecution case against the appellant. The argument of Ld. Counsel for the respondent in regard to the presumption that could be drawn from the allege recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption u/s 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which is in this case we have held is not done because Page No.13 of 14 State vs. Harnek Singh FIR No. 245/2011 the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn".
Result In the sum, I am of the view that the prosecution has failed to prove beyond reasonable doubt that the person, who snatched the handbag of the complainant on that fateful day of 2 June 2011, was Harnek Singh. Prosecution has also failed to prove beyond reasonable doubt that the mobile phone which was the produced during the course of trial was the one which was allegedly stolen from the complainant. I, therefore, accordingly acquit accused HARNEK SINGH of the crime charged.
Bail bond under section 437-A of the Code furnished. Perused and accepted.
File be consigned to record room after due compliance.
Announced in open Court on 22nd day of February, 2020 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/22.02.2020 This judgment contains 14 pages and each page bears my signature. Digitally signed by BABITA BABITA PUNIYA PUNIYA Date:
2020.03.07 18:04:50 (Babita Puniya) +0530 MM-06, West District, Tis Hazari Courts/ Delhi/22.02.2020 Page No.14 of 14