Delhi District Court
State vs . Parkash @ Chuha on 9 February, 2022
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE06,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
STATE VS. Parkash @ Chuha
FIR NO: 000523/2020
P. S Kalkaji
U/s 379/411 IPC
Crc No./5050/2020
JUDGMENT
Sl. No. of the case : 186/2
Date of its institution : 22/10/2020
Name of the complainant : Sh. Dilip Kumar,
S/o Sh. Natthu Ram,
R/o H. NO. S82/274,
Jagdamba Camp, Malviya
Nagar, New Delhi.
Date of Commission of offence : 09.06.2020
Name of the accused : Prakash @ Chuha,
S/o Sh. Jhabbar Lal,
R/o H. No. 20/213, Block20,
Kalyanpuri, Delhi.
Offence complained of : 379/411 IPC
Plea of accused : Not Guilty
Case reserved for orders : 28.01.2022
Final Order : Acquitted
Date of orders : 09.02.2022
ANIMESH Digitally signed by ANIMESH
KUMAR
KUMAR Date: 2022.02.09 14:14:53 +0530
1
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Prakash @ Chuha for having committed the offence punishable u/s 379/411 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, as per the case of prosecution that on 09.06.2020 at about 11:07 AM near Nehru Place Bus terminal bus stand, New Delhi, accused had stolen one mobile phone of the complainant. The said mobile phone was recovered on 22.08.2020 from the possession of accused when he was apprehended by the police officials of PS Kalkaji in another case FIR NO. 371/2020, u/s 25/54/59 Arms Act.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused. Thereafter, charge u/s 379/411 IPC was framed against the accused vide order dated 04.10.2021, to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused persons, the prosecution examined following three witnesses:
Sh. Dilip Kumar who is the complainant in the present case deposed as PW1; HC Rajender deposed as PW2 and ASI Yogender Singh deposed as PW3.
5. PW1, is the complainant and the eye witness in this case. During the examination in chief, he deposed that some time in the year 2020, he was traveling in bus from Nehru Place to Khirki Extension. During travel, his mobile phone make MI A1 with mobile number 9716478570 got stolen. On the same day, he made complaint through electronic portal of Delhi Police. During investigation, he got released his mobile phone on superdarinama. During release of phone in superdarinama the photographs were taken vide Ex. PW1/P1 and PW1/2.
Digitally
2 signed by ANIMESH KUMAR
ANIMESH KUMAR Date: 2022.02.09 14:15:03 +0530
6. PW2, deposed that on 09.06.2020, the present EFIR was marked to him regarding theft of mobile phone. He recorded the statement of the complainant. Complainant had produced the mobile bill and his ID which Ex. PW1/A. He also recorded the statement of the complainant Ex. PW1/B. He prepared the site plan of the spot at the instance of the complainant Ex. PW1/C. Thereafter, on 23.08.2020, he was informed by ASI Yogender regarding recovery of the stolen mobile phone in the present case from the accused. Thereafter, he obtained documents and arrested the accused vide memo Ex. PW1/D. He also conducted the personal search of accused vide memo Ex. PW1/E. He also recorded disclosure statement of the accused Ex. PW1/F. Further, accused produced before the court and sent to JC.
7. PW3 deposed that on 22.08.2020 the accused was arrested in case FIR NO. 371/2020 U/s 25/54/59 Arms Act. Two mobile phones make MI Note 8 Pro and MI A1 were recovered from the accused. Out of the aforesaid two phones, MI A1 was the case property of the present case. He informed the same to IO HC Rajender. Thereafter, IO arrested the accused in the present FIR. IO took the copy of the documents pertaining to the FIR no. 371/2020. He deposited the mobile phones in Malkhana vide seizure memo Mark A.
8. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 01.11.2021. Thereafter, statement of the accused was recorded on 15.11.2021 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein he denied the allegations and claimed to have been falsely implicated.
9. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
10. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove Digitally signed by ANIMESH KUMAR ANIMESH KUMAR 3 Date: 2022.02.09 14:15:13 +0530 the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
11. For the sake of convenience, I shall be discussion the culpability of accused u/s 379/411 IPC.
CULPABILITY OF ACCUSED U/S 379 IPC
12. As discussed in the preceding paragraphs of this judgment, the accused Prakash @ Chuha has been charged for the offence of theft punishable u/s 379 IPC. Perusal of testimonies available on record clearly suggests that there is absolutely no incriminating evidence against accused Prakash @ Chuha which shows that the he has snatched the mobile phone of the complainant and thereby committed an offence punishable u/s 379 IPC.
13. PW1, the complainant and eyewitness of the present case, failed to support the case of prosecution qua the fact that accused Prakash @ Chuha had stolen his mobile phone. During his testimony, he did not identify the accused present in the court. Identity of the accused in a criminal trial is of utmost importance and the prosecution is required to establish the same beyond reasonable doubt.
14. In the instant case, there is no eye witness apart from complainant. Complainant did not identify the accused in the court during his testimony. Rest of the witnesses examined by prosecution were police witnesses who were not present at the spot at the time of incident. Their testimonies are entirely based upon the disclosure statement of the accused which is not admissible in evidence. Hence, their testimonies would not be sufficient enough to properly establish the identity of the accused in the present case as the person who has snatched the mobile phone of complainant.
Digitally signed by ANIMESHANIMESH KUMAR KUMAR Date: 2022.02.09 14:15:21 +0530 4
15. Therefore, in view of the above, I am of the considered view that the prosecution has failed to prove the guilt of accused Prakash @ Chuha beyond reasonable doubt for the offence of theft.
CULPABILITY OF ACCUSED U/S 411 IPC
16. As discussed in the preceding paragraphs of this judgment, as per the case of prosecution, accused had allegedly snatched mobile of the complainant and the same was recovered from the possession of the accused, and, therefore, an alternate charge was framed against him for the offence u/s 411 IPC.
17. Section 411 IPC deals with the offence of dishonestly receiving stolen properties. 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."
18. In the case of Rajender Kumar Vs. State (Delhi Administration), (1983) 23 Del LT 42, it was held that in order to bring home the guilt of the person under this provision, it is the duty of the prosecution to prove the following;
(i)That the stolen property was in the possession of the accused;
(ii)That some person, other than the accused had the possession of the property before the accused got possession of it, and
(iii)That the accused had knowledge that the property was the stolen property.
19. Therefore, the crucial fact which needs to be established by the prosecution in order to bring home the culpability of accused is the existence of knowledge about the phone Digitally signed by ANIMESH KUMAR ANIMESH KUMAR Date: 2022.02.09 14:15:29 +0530 5 being a stolen property. In order to prove this, the prosecution has primarily relied upon the testimony of PW3.
20. PW3 was the police official who had arrested the accused in the present case and recovered stolen mobile phone from his possession. In his testimony, PW3 had completely supported the case of the prosecution that the stolen mobile phone belonging to the complainant was recovered from the possession of the accused.
21. It should be noted that the alleged recovery of the stolen mobile phone from the accused could not be conclusively established by the prosecution in as much as no public witness or independent witnesses were examined by the prosecution during the trial. In fact, non of them were joined in the investigation. PW03 in his crossexamination had deposed that he had tried to join the public persons in the investigation. However, they refused and left the place with their own reason.
22. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
23. The failure on the part of PW3 to give notice to the public persons would go on to suggest that he was not interested in joining them in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded 6 ANIMESH Digitally signed by ANIMESH KUMAR KUMAR Date: 2022.02.09 14:15:38 +0530 to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
24. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies should be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."Digitally signed by ANIMESH KUMAR
ANIMESH KUMAR 7 2022.02.09 14:16:15 +0530 Date:
25. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
26. Similar observation was made by the Hon'ble Punjab & Haryana High Court in the case of Roop Chand vs. State of Haryana 1999 (1) CLR 69, wherein the Hon'ble Court while discussing the role of public witnesses in criminal investigation, had interalia held the following:
"4. It is well settled principle of the law that the investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigation officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the investigating officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from public is an afterthought and is not worth credence. All these facts taken together make the prosecution case highly doubtful."Digitally signed by ANIMESH KUMAR
ANIMESH KUMAR Date: 2022.02.09 14:16:25 +0530 8
27. Further, the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar v. State of Maharashtra (1995) 4 SCC 255 dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
28. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
29. In the instant case, as discussed above, no effort was made by PW3 in order to join the public witnesses during the investigation. No other witness has been examined by the prosecution in order to prove the factum of recovery of stolen phone from the possession of accused.
30. Be that as it may, even if I consider testimony of PW3 as relevant in evidence, it should be noted that his testimony would only prove the fact that the stolen mobile phone was recovered from the possession of accused. However, it would not prove the fact the said phone was retained / purchased by him with the knowledge that the same was a stolen property. In fact, this was precisely the duty of prosecution to impute the existence of knowledge on the part accused. Mere disclosure of this fact in his disclosure statement would not be of any help to the prosecution.
ANIMESH Digitally signed by
ANIMESH
9
KUMAR
KUMAR Date: 2022.02.09 14:16:33
+0530
31. Therefore, in view of the above discussion and finding, I am of the considered view that the while there are grave suspicions against the accused Prakash @ Chuha, however, the prosecution has failed to prove his guilt for offence u/s 411 IPC beyond reasonable doubt.
32. Hence, the accused Prakash @ Chuha stands acquitted for the offence punishable u/s 379/411 IPC.
ANIMESH Digitally signed by
ANIMESH KUMAR
Announced in the open court on 09.02.2022
KUMAR Date: 2022.02.09 14:16:42
+0530
(Animesh Kumar)
MM06, South East, New Delhi
It is certified that this judgment contains 10 pages and each page bears my signatures. Digitally signed by ANIMESH KUMAR ANIMESH KUMAR Date: 2022.02.09 14:16:51 +0530 (Animesh Kumar) MM06, South East, New Delhi/09.02.2022 10