Delhi District Court
State vs Sanjeev Kumar And Rahul on 29 March, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-01,
SOUTH-WEST, DWARKA COURTS, NEW DELHI
- PRESIDED BY:
PARAS DALAL, D.J.S.
FIR No. 118/2011
PS Dabri
U/S : 392/34 Indian Penal Code, 1860
State V/s Sanjeev Kumar and Rahul
Cr.C No. 858/2/2014 & 427115/2016
Date of Institution 03.10.2012
Complainant Manpreet Kaur
W/o Kirpal Singh
R/o RZ-A/24. Jeewan Park,
New Delhi
Accused No.1 Sanjeev Kumar
S/o Ishwar Singh
R/o
Accused No.2 Rahul Kapri
S/o Praveen Kapri
(Proclaimed Person)
Offence complained off 392/34 IPC
Plea of Accused Not Guilty
Final Order Acquitted
Date of Judgment 29.03.2023
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Argued by: Sh. Manish Sidhawat, Ld. APP for the State
Sh. R.K. Doohan, Ld. LAC for accused Sanjeev
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JUDGMENT
1. The SHO, Police Station Dabri has presented this charge-sheet against above named accused persons for initiation of trial under Sections 411/392/34 Indian Penal Code, 1860 (for short "IPC").
FIR No 118 of 2011; P.S. Dabri Pages 1 of 13 State v. Sanjeev and Another
2. Briefly stated, the facts of the case as per prosecution are that on 30.03.2011 one DD No. 9A was registered about snatching wherein two assailants had fled the spot after leaving their motorcycle at the spot. The said information was acted upon and when SI Krishan Kumar and PSI Sunil Kumar reached the spot they met complainant Manpreet Kuar who deposed that on 30.03.2011 on Gram Bazaar road near Electricity Office Jeewan Park, Delhi she was going to hospital with her daughter aged 11 and at about 8 AM, one motorcycle bearing no. DL 4SBC 9106 stopped in front of her and two boys aged about 20-25 years stopped her. The pillion rider tried to snatch her bag and when she resisted, he pushed her as a result she fell down, he managed to grab the purse and both tried to flee. She further stated that she raised cries and at the same time one police officer on his motorcycle was coming from the front and he alongwith public persons surrounded the two assailants, one managed to escape however the assailant who snatched complainant's purse was apprehended whose name was revealed as Sanjeev Kumar. The said complaint was recorded as tehrir which resulted in the present FIR. Co-accused person was found to be one Rahul Kapri who had already approached the Ld. ASJ Court and he was granted interim bail, but was directed to join investigation. Co-accused Rahul Kapri joined investigation and he was formally arrested and released. Upon completion of investigation, challan was prepared u/s. 411/392/34 IPC and filed in Court for trial.
3. The copy of chargesheet and documents were supplied to the accused in compliance of Section 207 Cr.P.C. Prima facie case was made out, charge for offence u/s. 392/34 IPC was framed against the accused Sanjeev and Rahul on 07.07.2014 to which they pleaded not guilty and claimed trial.
Prosecution Evidence FIR No 118 of 2011; P.S. Dabri Pages 2 of 13 State v. Sanjeev and Another
4. In order to prove its case, prosecution has examined seven witnesses (hereinafter referred to as 'PW'). PW-1 Complainant Manpreet Kaur deposed that on 30.03.2011 at about 8 AM she alongwith her daughter was going to hospital when at Som Bazar near Bijli Ghar two persons on motorcycle bearing no. DL 4SBC9106 came from the back and stopped motorcycle in front of her. The pillion rider snatched her purse, during which he pushed her and she identified accused Sanjeev as the driver of the motorcycle and accused Rahul as the one who snatched her purse. PW1 identified her statement Ex.PW1/A given to the police, seizure memo of bag as Ex.PW1/B, arrest memo of accused Sanjeev Ex.PW1/C and also the case property i.e. the bag as Ex.P1. PW1 was cross examined by the defence wherein she confirmed the accused Sanjeev was driving the motorcycle and accused Rahul snatched her purse, both of which were not wearing helmets. She further stated that she did not know accused Sanjeev from before and she denied the suggestion that she was identifying accused Sanjeev at the behest of police. Further, she could not tell the color of the clothes that the accused persons were wearing at the time of incident.
5. PW2 HC Dharamvir deposed that on 30.03.2011 he was on patrolling duty and when he was going from Bindapur J.J. Colony towards Som Bazar Road, Jeevan Park, he heard one lady shouting 'pakro-pakro' (catch- catch) and public had apprehended accused Sanjeev. PW2 further deposed that motorcycle DL 4SBC 9106 was lying on the road and one lady's purse was recovered from the possession of accused Sanjeev whereas accused Rahul flew away from the spot. PW2 stated that one public person called the police and SI Krishan Kumar with PSI Sunil reached the spot. PW2 deposed to have handed over the apprehended accused, recovered purse and motorcycle to IO SI Sanjeev Kumar whereinafter complainant Manpreet gave her statement, IO prepared rukka and PSI Sunil took the FIR No 118 of 2011; P.S. Dabri Pages 3 of 13 State v. Sanjeev and Another same to the police station for registration of FIR. PW2 deposed that IO prepared site plan and seized the purse vide memo Ex.PW1/B and motorcycle was seized vide Ex.PW2/A. PW2 stated that PSI Sunil returned with copy of FIR and IO then arrested accused Sanjeev vide memo Ex.PW2/B, his personal search memo is Ex.PW2/C and his disclosure statement is Ex.PW2/D. PW2 also identified the case property Ex.P1. PW2 in his cross examined answered that when he heard the noise of 'pakro- pakro', about 15-20 people had gathered there. PW2 could not tell the name of the public person who called at 100 number and stated that motorcycle was make Pulsar black color bearing no. DL 4SBC9106. PW2 after refreshing his memory stated that accused Rahul was driver and accused Sanjeev was pillion rider. PW2 further answered that SI Krishan and PSI Sunil came about 15-20 minutes and he was present at the spot till 12 noon. PW2 further answered that he went to police station from the spot and PSI Sunil took the motorcycle to police station. PW2 also stated that accused Sanjeev was taken to police station with his face covered using handkerchief. PW2 stated that the case property was seized and sealed with the seal of 'RK' in his presence, however he could not tell to whom the seal was handed over and stated that his statement was recorded by the IO in the police station.
6. PW3 W/ASI Pushpa stated that on 30.03.2011 PSI Sunil brought one rukka and she registered FIR Ex.PW3/A and she even made endorsement on the rukka Ex.PW3/B.
7. PW4 Retd. SI Krishan Kumar deposed that on 30.03.2011 on receipt of DD No. 9A he alongwith PSI Sunil reached the spot near Jeevan Park and HC Dharambir handed over one person Sanjeev who was apprehended by public persons and he also recovered stolen property i.e. the purse. PW4 FIR No 118 of 2011; P.S. Dabri Pages 4 of 13 State v. Sanjeev and Another stated to have checked the bag which contained some documents and Rs.200/- and one motorcycle bearing no. DL4SBC9106 was also lying at the spot wherein he recorded statement of complainant Ex.PW1/A and sent the same through PSI Sunil for registration of FIR. PW4 stated to have prepared site plan at the instance of complainant Ex.PW4/A and also seized the purse/bag and motorcycle vide memo Ex.PW1/B and Ex.PW2/A. He also stated to have arrested accused vide memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW2/C whereas he suffered disclosure statement Ex.PW2/D. PW4 further stated to have recorded statement during investigation and as per disclosure of accused Sanjeev, co- accused Rahul was searched however he was not found. PW4 further stated that accused Rahul moved anticipatory bail application, wherein interim relief was granted to him and he joined investigation wherein he was formally arrested on 03.05.2011 vide Ex.PW4/B, who made disclosure statement Ex.PW4/C and his refusal to join TIP proceedings is Ex.PW4/D. PW4 identified the case property i.e. bag/ purse through photographs Ex.P2. PW4 in his cross examination was first shown the content of DD No. 9A which read that 'ruffians had fled after snatching the purse and left the motorcycle make Pulsar at the spot'. PW4 answered that he did not contact the caller of DD No. 9A and stated that he reached the spot with PSI Sunil within 5-7 minutes. PW4 stated that he examined complainant at the spot and no other public witness was examined as none accepted his oral request to join investigation. PW4 also stated that he served no written notice on any public persons and accepted that the spot is a busy area. PW4 stated that motorcycle recovered at the spot was owned by sister in-law of accused Sanjeev. PW4 stated that purse/ bag contained Rs.200/- and some documents and when he deposed in cross examination he remembered no distinct mark of identity of the bag/ purse. PW4 stated that purse was sealed at the spot and seal was handed over to PSI Sunil, however he FIR No 118 of 2011; P.S. Dabri Pages 5 of 13 State v. Sanjeev and Another admitted that no seal handing over memo was prepared. PW4 further stated that complainant did not accompany him at the police station and he examined HC Dharambir at the spot. PW4 further stated that site plan Ex.PW4/A was prepared as per sequence of events narrated by the complainant, however accepted that same does not bear signatures of the complainant. PW4 then answered the reason for producing accused in muffled face, and he accepted that in the present case accused Sanjeev was produced in un-muffled face before the then Ld. MM, however he was successfully confronted with police custody remand application Ex.PW4/DX wherein accused was mentioned to have been produced in muffled face at point A1 and A2. PW4 further stated that the motorcycle involved in the offence was taken by one Constable to the police station, however he did not remember his name and he also did not examine the said Constable. PW4 denied moving any application for conduct of TIP of the accused Sanjeev.
8. PW5 Ct. Sushil Kumar produced register no.19 wherein vide entry no.
5624 motorcycle bearing no. DL4SBC9106 was deposited and was released on superdari on 15.04.2011 to Pushpa Rani. Also vide said entry one ladies purse and Rs.200/- were released on superdari to complainant Manpreet Kaur. The said entry is Ex.P1(OSR).
9. PW6 ASI Jagdish deposed that on 30.03.2011 DD no. 9A was received at around 8:23 from the wireless operator regarding the snatching of purse in front of a house on Som Bazar Road by some miscreants who had ran away after leaving their motorcycle bearing no. DL4SBC9106 Pulsar black color. Said DD No. 9A is Ex.PW6/A (OSR). PW6 in his cross examination answered that he cannot tell who made the PCR call and further that mobile number of the called was 9868271083.
FIR No 118 of 2011; P.S. Dabri Pages 6 of 13 State v. Sanjeev and Another
10. PW7SI Sunil deposed that on receipt of DD No.9A he accompanied with SI Krishan Kumar to the spot and in his examination in chief he supported the prosecution story deposing in line with PW2 and PW4. PW7 in his cross examination however answered that in DD No. 9A he remember that it was mentioned that snatching had taken at Som Bazar and IO told him that snatcher had been apprehended at the spot. PW7 was unable to tell who made the call and stated that at the spot HC Dharambir was present with complainant and her daughter alongwith 4-5 persons. PW7 admitted that the spot was residential area and IO made inquiries from the local public persons whereafter he recorded rukka, which he took to police station at 9:30 AM and returned at 9:45-10 AM. PW7 stated that accused was taken to the police station on the motorcycle and he did not remember who took him to the police station. PW7 stated that purse Ex.P1 was brown in color, however he could not tell any distinct identification mark of the purse. PW7 further expressed inability to tell denomination of currency recovered, documents found from the purse/bag and also could not tell if complainant came to the police station from the spot. PW7 further could not remember as to whom the seal was handed over by the IO after preparation of pullanda and also if HC Dharambir was examined by the IO at the spot. PW7 stated that accused was not in muffled face when he was taken to police station and he could not tell if he went to the house of the accused on the date of incident or thereafter. PW7 stated that one of the accused fled the spot and only one motorcycle was found at the spot.
11. Accused Rahul was earlier appearing before this Court during trial, however he subsequently defaulted and he was declared absconder/ proclaimed person on 21.12.2018 whereafter all prosecution evidence was recorded against him under Section 299 CrPC.
FIR No 118 of 2011; P.S. Dabri Pages 7 of 13 State v. Sanjeev and Another Statement of Accused
12. Prosecution evidence was closed. The statement of accused Sanjeev under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 02.02.2023 and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He defended that he was never arrested from the spot, he was picked up by the police from his house and IO took signatures on some blank papers. He stated that on 30.03.2011 at about 7 AM, his friend Rahul alongwith one unknown boy came to his house, requested to borrow his motorcycle for some urgent work. He stated that after 1-2 hours, 1-2 police officials came to his house and inquired about person who was driving the said motorcycle and he told police officers about Rahul. Accused Sanjeev then stated that he was asked to come to police station where he was arrested and he was made to sign some blank documents and formats. Accused then stated that his face was covered and he was produced before Court in muffled face where he was sent to judicial custody. Accused did not chose to lead any defence evidence and matter was fixed for final arguments.
Arguments
13. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining all the material witnesses who have supported the prosecution version in material aspects. Accordingly, conviction of accused was prayed.
14. On the other hand, learned counsel for the accused argued that there are material discrepancies in the prosecution case which supports the defense of the accused. It is argued that complainant identified accused Sanjeev as driver of the motorcycle and Rahul as one who snatched the phone, FIR No 118 of 2011; P.S. Dabri Pages 8 of 13 State v. Sanjeev and Another however after arrest and even before Court she identified Sanjeev as the one apprehended by the police and public persons at the spot who snatched the phone. Further it is argued that PW2 stated that he saw accused Sanjeev driving the vehicle and he was apprehended by public persons. Further, reliance is made on DD no.9A which records that miscreants had left their motorcycle and fled the spot, and it is argued that even though caller made mention of color as well as number of motorcycle, he never mentioned that any assailant was apprehended by public person. Further, it is argued that nevertheless PW4 never examined the said caller. Defense further argued that PW2, PW4 and PW7 deposed contrary to each other with regard to taking motorcycle to the police station, there is no seal handing memo and even the site plan bears no signature of the complainant even though it is stated to have been prepared at the instance of the complainant. Defense also argued that there is discrepancies in the investigation, wherein PW7 did not support the investigation carried by PW4 on the day of the incident after registration of FIR as he made no statement that accused was taken to his house or to the house of co-accused Rahul. It is also argued that PW7 stated that he was told by IO that one accused was apprehended at the spot, however DD No.9A made no such mention and when PW4 and PW7 did not reach the spot, there was no occasion for IO to have known that one accused had been apprehended at the spot, nevertheless is argued that same statement of PW7 is not supported by the testimony of IO/PW4. Defense finally argued that IO stated he produced accused in un-muffled face, which is directly opposed to case records and the same supports the defense that since motorcycle was traced to present accused Sanjeev and actual culprits were not arrested, present case was planted to accused Sanjeev.
FIR No 118 of 2011; P.S. Dabri Pages 9 of 13 State v. Sanjeev and Another Findings
15. At the onset, it is pertinent to note that complainant has before this Court deposed contrary to record particularly identity of the accused Sanjeev. As per her complaint accused Sanjeev was driving the motorcycle and co- accused Rahul snatched her mobile phone. However, she identified accused Sanjeev in Court as one who snatched her mobile phone and co-accused Rahul as one who was driving the vehicle. Further, PW2 who was best officer on patrolling also identified accused Sanjeev as driver of the motorcycle. DD no.9A however clearly mentions that both assailants had fled after leaving their motorcycle. The same supports the defense that there is genuine dispute as to identity of accused Sanjeev. There is also substance in the defense that when DD no.9A mentions the minute details of color and number of motorcycle, then caller would not have missed mentioning that one assailant was apprehended by police. Therefore, there is every likelihood that accused Sanjeev was arrested later after motorcycle ownership was investigated and since the caller who even mentioned his mobile number was never examined by the IO, the fact that Sanjeev was caught at the spot is not established.
16. Apart from failure of complainant to support the case of the prosecution in regard to the above aspect. There is material contradiction in the series of events. PW7 denied taking motorcycle to the police station even though PW2 deposed the same specifically and PW4 IO stated that he sent the motorcycle through one Constable, who he admitted was never examined. Thus the investigating officer have admitted he did not examine the caller who made DD no.9A and he also did not examine officer who took one of the case property to the police station. Further, the complainant deposed that PW2 while on duty apprehended accused Sanjeev with the help of public persons and thereafter someone made complaint on 100 number.
FIR No 118 of 2011; P.S. Dabri Pages 10 of 13 State v. Sanjeev and Another PW2 on the other hand stated that public persons had already apprehended the assailant when he reached the spot. The said sequences could have been collaborated by caller who made DD no.9A or any other public person present at the spot. PW1, PW2, PW4 and PW7 all deposed that there are shops and residential complex at the place of incident and therefore some chance witness would have been available for the IO to record statement. PW4 IO admitted he never served any notice to public person to join investigation. There is some lacunae in the chain of events of the prosecution story and the same is sufficient to cast doubt in the prosecution case especially when accused Sanjeev has defended that he was never arrested from the spot.
17. Apart from the above contradictions and inconsistencies, the prosecution case suffers from serious defects. Nothing prevented the investigating officer to examine caller of DD no.9A, any public person from the spot, pick chance prints from the case property- purse/bag or motorcycle, or seize any CCTV footage available at any residential house or shop at or around the spot. In absence of the above, the defense holds some credence that accused Sanjeev was not positively identified by the complainant in Court, as earlier she said he was the driver of the motorcycle and later in Court identified him as one who snatched her purse. Complainant categorically stated that she saw both accused persons who never wore any helmet. Further, accused Sanjeev was produced in muffled face, PW4 IO knew about the object and reason for producing accused in muffled face before Court and he further stated that accused Sanjeev since was caught at the spot was produced in un-muffled face. However, the case records is opposed to the said deposition and accused Sanjeev was produced in muffled face and no test identification parade proceedings was conducted.
FIR No 118 of 2011; P.S. Dabri Pages 11 of 13 State v. Sanjeev and Another
18. PW7 who accompanied the IO also failed to support the prosecution story about investigation carried subsequently. PW7 stated that he knew that one accused was apprehended at the spot as was told to him by the IO, which is neither supported by DD No.9A nor by the IO/PW4 himself. PW7 also did not support the prosecution about taking of case property to the police station and alleged seal handed over by the IO to him.
Conclusions
19. From the discussion above, apart from identifying the case property, there is no credible evidence to support the prosecution story. PW1, PW2, PW4 and PW7 have deposed contradictory to each other, PW7 has not supported the prosecution case at material places and pleaded that he could not remember the sequence of events. Also there is no independent witness to alleged incident. None of public person or the caller of DD no.9A were examined during investigation. There are serious lapses in the prosecution case. All the above discrepancies are detrimental to the case of the prosecution and casts a serious doubt in the present case, sufficient to afford benefit of the doubt to the accused.
20. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable evidence so as to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of the accused. It is a long-settled principle famously expressed by the FIR No 118 of 2011; P.S. Dabri Pages 12 of 13 State v. Sanjeev and Another celebrated English jurist William Blackstone - "better that ten guilty persons escape than that one innocent suffer."
ORDER: ACQUITTED
21. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused, who is entitled to be exonerated of the charge against him in the present case. Accordingly, accused Sanjeev Kumar is hereby acquitted of the offence punishable under Section 392 IPC.
Digitally signed by PARAS PARAS Date:
DALAL DALAL 2023.03.29 16:41:03 +0530 Pronounced in Open Court (Paras Dalal) on this March 29, 2023 MM -01, South West Dwarka Court, New Delhi FIR No 118 of 2011; P.S. Dabri Pages 13 of 13 State v. Sanjeev and Another