Delhi District Court
State vs . Devender @ Chintoo & Anr on 27 February, 2015
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State Vs. Devender @ Chintoo & Anr
FIR No: 229/12
PS: Saket
U/s: 356/379 r/w 34 IPC & U/s 103 of DP Act.
JUDGMENT
1. Sl. No. / ID No. of the Case : 02406R0119222013
2. Date of Commission of Offence : 27.07.2012
3. Date of institution of the case : 04.05.2013
4. Name of the complainant : Mrs. Mridula Prakash
W/o late Arun Prakash
R/o H. No. E94, Ekta Apartments,
DDA Flats, Saket, New Delhi
5. Name of accused, parentage : 1. Devender @ Chintoo
S/o Sh. Jag Mohan
R/o H.No. C258, Chinnor Basti,
Paharganj, New Delhi.
2. Lokesh
S/o Sh. Panna Lal
R/o H.No. C400, Gali No. 13,
Multani Dhandha, Paharganj, New
Delhi
FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 1 of 13
6. Offence complained or proved : U/s 356/379 r/w 34 & U/s 103 of DP
Act.
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Convicted U/s 103 of DP Act.
9. Date of Final Order : 27.02.2015
BRIEF REASONS FOR SUCH DECISION :
01. Accused Devender @ Chintoo S/o Sh. Jagmohan and Lokesh S/o Sh. Panna Lal have been charged U/s 356/379 r/w 34 IPC upon allegation of having used criminal force for committing theft of goldchain of complainant Smt. Mridula Prakash, in front of gate of ABlock, Golfview Apartment, PVR Saket Road, New Delhi on 27.07.2012 at about 06:40 AM. Additionally, they have been also tried for offence U/s 103 of Delhi Police Act for having got recovered two pieces of goldchain from their respective houses on 29.08.2012, possession of which they could not satisfactorily account.
02. Chargesheet filed in court reveals that information about snatching of chain was received at 06:55 AM (morning) which was entered in roznamcha register vide DD no. 8A dated 27.07.2012, PS Saket and marked to SI Arvind Kumar. He alongwith Ct. Sajjan Singh reached ABlock, Golfview Apartment, FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 2 of 13 PVR Saket Road and met Smt. Mridula Prakash W/o late Arun Prakash. Her statement (complaint) was recorded wherein complainant alleged that two boys riding one black colour motorcycle had snatched her goldchain and fled towards Lado Sarai and she could identify those snatchers. SI Arvind Kumar made his endorsement upon her complaint and prepared tehrir for offence U/s 356/379 r/w 34 IPC which was sent to PS Saket through Ct. Sajjan Singh for registration of FIR.
03. During investigation, SI Arvind Kumar (IO) prepared siteplan at the instance of complainant and recorded statements U/s 161 Cr.P.C, but neither accused could be apprehended nor stolen goldchain could be recovered. Thereafter, on 29.08.2012, one secretinformer met him at picket, near petrol pump, Mandir Marg, Saket and informed that alleged snatchers would be coming on motorcycle who could be apprehended. Other policepersonnels present near picket were briefed and at around 05:15 PM both accused were seen coming from Press Enclave road riding motorcycle bearing no. DL4SBM7873. They were apprehended at the instance of secretinformer and disclosed their names as Devender @ Chintoo and Lokesh. Upon interrogation, both accused confessed their crime and were arrested. Their disclosure statements were recorded and motorcycle was seized by IO. Pointingout memo was prepared at FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 3 of 13 their instance and both accused got recovered one piece of goldencolour chain each from their respective houses, claiming to have divided the chain between themselves besides stating that its locket had fallen down while fleeing. Pieces of chain recovered from accused were kept in separate pullandas, sealed with seal of 'AK' and seized by police. Accused were produced in court in muffledface and remanded to judicial custody. Application for their 'test identification proceeding' was marked to Sh. Rajender Singh, Ld. MM, Saket, but they refused to participate in TIP proceeding, nonetheless, accused were identified by complainant outside courtroom and her 'supplementarystatement' was recorded. Complainant Smt. Mridula Prakash however failed to identify pieces of goldchain recovered from accused during testidentification of case property and accordingly offence U/s 103 of Delhi Police Act was added. After obtaining testidentification report, SI Arvind Kumar (IO) finalized investigation and prepared chargesheet which was filed in court on 04.05.2013.
04. Cognizance of offence was taken by court and after compliance of section 207 Cr.P.C., accused Devender @ Chintoo and Lokesh were charged for offence U/s 356/379 r/w 34 IPC & U/s 103 of Delhi Police Act on 11.02.2014 to which they pleaded not guilty and claimed trial.
05. Prosecution has adduced its evidence by examining eight witnesses FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 4 of 13 on judicial record. Complainant Smt. Mridula Prakash and her brother Sh. Praveen Gupta have deposed as PW01 & PW02. Sh. Ajay Kumar, registered owner of Glamour motorcycle, Ct. Sajjan Singh and Sh. Rajender Singh, Ld. MM Saket have entered the witnessbox as PW03, PW05 & PW07 whereas recoverywitnesses Ct. Pradeep, Ct. Pramod and SI Arvind Kumar (IO) have testified as PW04, PW06 and PW08 respectively. Copy of FIR No. 229/12 & DD No. 8A, PS Saket dated 27.07.2012 and 'test identification proceeding' of chain were entered in a list which was put to accused U/s 294 Cr.P.C. by prosecution and the documents being exhibited as Ex. A1 to A3, witnesses for their formal proof were dropped.
06. After closure of prosecution evidence, both accused were examined U/s 313 Cr.P.C. and denied the allegations and depositions of witnesses examined on judicial record. Defence evidence was closed on 18.12.2014 as both accused failed to examine any witness despite several adjournments since 29.09.2014.
07. Final submissions have been addressed by either side.
08. Ld. APP for the State has alluded to testimonies of recovery witnesses for seeking conviction of accused Devender @ Chintu and Lokesh for offence U/s 103 of Delhi Police Act.
FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 5 of 13
09. Sh. Tej Narain, ld. LAC per contra has raised plea of false implication for seeking acquittal of accused by pointing that no independent publicwitness was joined by police during alleged recovery of pieces of gold chain. He has also referred to his applications for conducting metallurgy test of alleged chain and for calling crimerecord of Ms. Asha in support of his plea of false implication.
10. Before adverting to testimonies of witnesses examined by prosecution, it would therefore be apt to refer to the applications filed by defence. Crimerecord of Ms. Asha has been sought in one application for asserting of her being a policeinformer, involved in smuggling of drugs. Metallurgytest of pieces of chain allegedly recovered from accused has been requested in the other application for contending false implication of accused by planting artificial chains.
11. Submissions upon both applications were addressed by ld. LAC. He nonetheless failed to convince the court about relevancy (as per section 5 of The Indian Evidence Act, 1872) of crimerecord of alleged Ms. Asha who is neither complainant nor witness in the present case. Similarly, metallurgytest of pieces of chain for contending false implication of accused is not essential as recovery witnesses have been subjected to crossexamination by defence for impeaching FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 6 of 13 their veracity and penal provision U/s 103 of DP Act does not distinguish between goldchain and artificial chain. Both applications being without merit are accordingly dismissed.
12. As regards offence U/s 356/379 r/w 34 IPC, complainant Smt. Mridula Prakash (PW01) and her brother Sh. Praveen Gupta (PW02) have deposed about snatching of complainant's chain in front of gate of A Block, Golf View Apartment, PVR Saket Road by two persons riding one black colour motorcycle on 27.02.2012 at around 06:30 06:45 AM, but they did not identify accused Devender @ Chintoo and Lokesh as alleged snatchers during their examinationinchief. Upon her crossexamination by ld. APP for State with court's permission, complainant Smt. Mridula Prakash testified that she could not identify accused due to lapse of time and reiterated of being not sure about identity of accused during her crossexamination by defence. Her brother Sh. Praveen Gupta similarly deposed that he could not identify accused as he had not seen their face.
13. Therefore, in the absence of their identification by complainant and her brother, charge for offence U/s 356/379 r/w 34 IPC could not be proved so as to bring home guilt of alleged theft / snatching of goldchain. Accused Devender @ Chintoo and Lokesh accordingly stand acquitted for offence U/s FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 7 of 13 356/379 r/w 34 IPC.
14. With respect to offence U/s 103 of Delhi Police Act, recovery witnesses Ct. Pradeep (PW04), Ct. Pramod (PW06) and SI Arvind Kumar (PW08) have deposed about apprehension of accused Devender @ Chintoo and Lokesh at the instance of secret informer on 29.08.2012. They have consistently deposed about accused being apprehended at around 05:15 PM on 29.08.2012 while they were coming from the side of Press Enclave Road and going towards Mandir Marg and proved arrest memo & personal search memo of accused as Ex. PW 4/A1, Ex. PW 4/A2, Ex. PW 4/B1 & Ex. PW 4/B2. Seizure memo of Glamour motorcycle has been proved as Ex. PW 4/C and depositions of recoverywitnesses stand corroborated by testimony of registered owner Sh. Ajay Kumar (PW03) who has deposed of having given his motorcycle to accused Lokesh on several occasions. He has proved superdarinama furnished in court as Ex. PW 3/A and upon being subjected to crossexamination by Ld. LAC has testified to have given his motorcycle to accused Lokesh on 29.08.2012 at around 11:00 to 12:00 AM.
15. In comparison to the consistent version of prosecution's case, plea of defence seems floundering as accused have been dithering in their response regarding apprehension by police, during their examination U/s 313 Cr.P.C. FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 8 of 13 Accused Lokesh, in response to question no. 4, claims of being lifted from his house by Special Staff, but again claims of being called by Ms. Asha to her house and got apprehended by Special Staff as she felt that he had got her arrested by officials of Narcotics Branch. Coaccused Devender @ Chintoo on other hand claims to have gone to the house of Ms. Asha for purchasing smack where he was asked to wait outside the house and apprehended by two police personnels while he was waiting.
16. Testimonies of recoverywitnesses read alongwith deposition of Sh. Ajay Kumar, registered owner of motorcycle and seizurememo of motorcycle No. DL4SBM7873 therefore creates impression in favour of their trustworthiness and nothing could be elicited during their crossexamination which would discredit their credibility regarding apprehension of accused at around 05:15 PM on 29.08.2012. Hence, plea of defence about accused being lifted from their house or from the house of Ms. Asha where they had gone for purchasing smack does not inspire the confidence of court.
17. Recoverywitnesses Ct. Pradeep (PW04), Ct. Pramod (PW06) and SI Arvind Kumar (PW08) have consistently deposed about apprehension of accused Devender and Lokesh at 05:15 PM on 29.08.2012, their disclosure statements, medical examination and recovery of pieces of goldchain effected FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 9 of 13 from their respective houses consequent to their disclosure statements. Other than their arrest memos and personal search memos (Ex. PW 4/A1 & A2 to Ex. PW 4/ B1 & B2), disclosure statements of accused have been proved as Ex. PW 8/C and Ex. PW 8/D and seizurememos of pieces of goldchains have been proved as Ex. PW 4/E and Ex. PW 4/F which bear signatures of all three recoverywitnesses.
18. Upon being subjected to crossexamination by Ld. LAC, recovery witnesses have deposed about departure entry recorded vide DD No. 20A at about 03:45 PM before leaving PS Saket on picket duty and consistently deposed to have reached house of accused Lokesh and thereafter house of co accused Devender @ Chintoo, for effecting recovery of pieces of goldenchain. PW SI Arvind has deposed about house of accused Devender being situated in a doublestorey building and PW Ct. Pradeep has testified about accused Devender having asked someone to open his house, though he could not remember said person.
19. Though, ld. LAC has assailed testimony of recoverywitnesses on the ground of nonjoining of independent publicwitness besides drawing court's attention to the reply of SI Arvind Kumar (PW08) wherein IO deposed of having kept the casediary at PS Saket and not carried the same at the spot, but his FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 10 of 13 contentions seem unfounded. Ld. LAC was apprised about section 172 Cr.P.C which requires entering of proceedings of investigation in a diary and asked to point out the provision requiring the IO to carry casediary to the spot during course of investigation, but he could not mention any such provision either in the Code of Criminal Procedure, 1973 or in Punjab Police Rules.
20. As regards absence of independent publicwitness during recovery of pieces of goldchain from the house of accused, the general apathy of public persons to join investigation is not unknown. Public persons are reluctant to join investigation in order to avoid harassment at the hands of accused as also from taking rounds of court. Therefore, fact of nonjoining of independent public witnesses by itself is not sufficient enough to discard testimonies of recovery witnesses.
21. There is no rule of evidence that testimony of policewitnesses cannot be treated as credible. It is well settled that evidence of officialwitnesses alone can be foundation for conviction if found to be realistic & coherent and prosecution case cannot be discarded merely on the ground of chief plank of its evidence being that of official witnesses, though it may put court on guard and testimonies of such official witnesses is liable to be scrutinized with extra caution.
22. Testimonies of recoverywitnesses has remained consistent FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 11 of 13 throughout and no ground is made out for discrediting their veracity on the ground of nonjoining of independent publicwitnesses. In contrast, plea of false implication raised by defence seems floundering and dithering. Hon'ble Supreme Court of India in case titled Tahir v. State AIR 1996 SC 3079 has held : "In our opinion no infirmity attaches to the testimony of 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 credit worthiness of the prosecution case."
23. Therefore, considering recovery of pieces of goldchain, kept under bed (mattress) from the house of accused Devender @ Chintoo and Lokesh, FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 12 of 13 possession of which they could not satisfactorily account, prosecution has successfully brought home the guilt of both accused and they accordingly stand convicted for offence U/s 103 of Delhi Police Act.
24. Matter be now listed for submissions and order on question of sentence on 09.03.2015 at 02:00 PM.
ANNOUNCED IN THE OPEN COURT DATED: 27th February, 2015 (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No. 229/12 PS Saket State Vs. Devender @ Chintoo & Anr 13 of 13