Delhi District Court
State vs . Karan Shokeen Etc. on 21 January, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
PRESIDING OFFICER : SH. VISHAL PAHUJA.
STATE VS. KARAN SHOKEEN ETC.
FIR NO. 47/13
PS: MIANWALI NAGAR
U/S: 356/379/411/34 IPC
JUDGMENT
Case No. : 64542/16
Date of commission of offence : 27.02.2013
Date of institution of the case : 04.09.2013
Name of the complainant : Sh. Hardeep Singh
Name of accused and address : A-1 Karan Shokeen s/o
Sh. Jagdish Shokeen, r/o
487/64, Village Peeragarhi,
Delhi.
A-2 Gaurav Shokeen s/o
Sh. Devender Shokeen, r/o
487/11, Peeragarhi Village,
Delhi.
Offence complained of or proved : U/s 356/379/411/34 IPC
Plea of the accused persons : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 21.01.2019
Date of judgment : 21.01.2019
************************************************************************************* BRIEF STATEMENT OF THE FACTS FOR DECISION:
FIR No. 47/13, PS Mianwali Nagar Page 1/121. This is the prosecution of accused persons Karan Shokeen and Gaurav Shokeen pursuant to charge sheet filed by PS Mianwali Nagar U/s 356/379/411/34 IPC subsequent to the investigation carried out by them in FIR No.47/13.
2. As per the prosecution, on 27.02.2013 at about 03.30 PM in front of Muthoot Finance Company Service Road, Outer Ring Road, Sunder Apartment, Paschim Vihar, Delhi, two assailants i.e. accused Karan Shokeen and Gaurav Shokeen assaulted, used criminal force in attempt to snatch a gold chain worn by Smt. Poonam Kaur and actually committed theft of the said gold chain. Thereafter, on the aforesaid date, time and place both the accused persons were found in possession of aforesaid gold chain which belonged to Smt. Poonam Kaur. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offence punishable u/s 356/379/411/34 IPC.
3. Complete set of charge sheet and other documents were supplied to both the accused persons. After hearing arguments, charge for offence punishable under section 356/379/411/34 IPC was framed against the accused persons namely Karan Shokeen and Gaurav Shokeen to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 10 witnesses in total.
5. PW1 Sh. Hardeep Singh is the complainant in the present case. It is stated that on 27.02.2013, he alongwith his wife Ms. Poonam Kaur were going towards Radison Hotel via red light Meera Bagh on foot. It is further FIR No. 47/13, PS Mianwali Nagar Page 2/12 stated that at about 3:30 PM, when they reached near Muthoot Finance office, two persons came on a motorcycle from behind and the pillion rider of the bike grabbed the neck of wife of PW1 and snatched her gold chain.
PW-1 further stated that PW1 raised alarm and accused Karan Shokeen turned his face towards PW1. It is further stated that he chased the accused persons. In the meanwhile, one police official on a bike also came there and assured him that the offenders will be caught. PW-1 made PCR call. PW-1 further stated that the accused persons correctly identified in the court were apprehended by the said police official near the round about of red light. It is stated that accused Gaurav Shokeen was driving the motorcycle and accused Karan Shokeen was the pillion rider. PW-1 further stated that the gold chain of his wife was recovered from the possession of accused Karan Shokeen. Complaint given by PW-1 is Ex. PW-1/A. The seizure memo of the gold chain is Ex.PW-1/B. Both the accused persons were arrested vide arrest memos Ex.PW-1/C and Ex.PW-1/D respectively. Personal search memos are Ex. PW-1/E and Ex. PW-1/F respectively. Case property has been duly identified by PW-1, which is Ex. P-1. This witness was cross-examined on behalf of the accused persons.
6. PW-2 Ms. Poonam Kaur deposed on the same lines as that of PW-1 and relied upon the documents already exhibited by PW-1 in his testimony. This witness was cross-examined on behalf of the accused persons.
7. PW-3 HC Ravi Dutt stated that on 27.02.2013, he alongwtih Ct. Satya Prakash was on patrolling duty at Beat No. 12, Sunder Vihar. At about 3:30 PM, when he reached at service road, Sunder Vihar, he saw that two boys came on a motorcycle with a fast speed. One lady and one Sardarji were on foot, who were raising alarm. PW-3 further stated that on suspicion, he and Ct. Satya Prakash stopped the motorcycle bearing no. DL-8SAY-549 driven by accused Karan and accused Gaurav was pillion FIR No. 47/13, PS Mianwali Nagar Page 3/12 rider. Both the accused persons were correctly identified by PW-3. PW-3 further stated that the lady namely Poonam and Sardarji namely Hardeep also reached there and told that accused persons have snatched the chain from the neck of Poonam and on the formal search of accused Gaurav Shokeen, gold chain was recovered from right pocket of the pant of accused Gaurav Shokeen. The gold chain was identified by Ms. Poonam. PW-3 further stated that he handed over the gold chain and motorcycle alongwith the accused persons to IO ASI Shyam Lal. PW-3 exhibited on record the seizure memo of the motorcycle as Ex. PW-3/A. He also relied upon the documents already exhibited on record in the testimony of PW-1. PW-8 HC Satya Prakash Singh deposed on the same lines as that of PW-3 HC Ravi Dutt. Both the witnesses were cross examined on behalf of both the accused persons.
8. PW4 Ct. Sandeep deposed that on 27.02.2013 on receipt of DD no. 31A he along with IO reached at Muthoot Finance, Outer Ring Road, Sunder Apartment, Paschim Vihar. It is stated that on reaching there they met Ct. Satyaprakash and HC Ravi Dutt and at that time they handed over to the IO one gold chain and the same was sealed with the seal of SL. It is stated that the same was seized by the IO vide seizure memo Ex. PW1/B. It is stated that IO also seized one motorcycle bearing registration no. DL- 8SAY-0549. The same is Ex. PW3/A. IO recorded the statement of complainant Hardeep. This witness accepted that on the statement of the complainant IO prepared the rukka and the same was handed over to Ct. Charanjeet for the registration of FIR and on the basis of which present FIR was got registered. This witness was cross examined on behalf of both the accused persons.
9. PW-6 Ct. Manoj Kumar exhibited on record entry no. 495 in register no. 19 as Ex. PW6/A (OSR). This witness was cross examined on behalf of accused persons.
FIR No. 47/13, PS Mianwali Nagar Page 4/1210. PW-7 ASI Shyam Lal stated that on 27.02.2013, he received DD entry no. 31A, which is Ex. PW-7/A, and thereafter, he alongwith Ct. Sandeep reached at the place of incident. PW-7 stated that at the spot, HC Ravi Dutt, Ct. Satya Prakash and Ct. Charanjit met to him alongwith the complainant namely, Hardeep Singh. It is stated that the police officials handed over to him one motorcycle make Pulsar and one broken gold chain alongwith accused persons namely Karan Shokeen and one another accused person. PW-7 prepared rukka/tehrir Ex. PW-7/B, on the basis of which FIR was registered. This witness exhibited on record the site plan Ex. PW-7/C and also relied upon the documents already exhibited on record by PW-1, PW-3 and PW-5. This witness was cross examined on behalf of both the accused persons.
11. PW-5 Ct. Charanjeet Singh deposed on the same lines as that of PW-7 ASI Shyam Lal. This witness exhibited on record the disclosure statements of both the accused persons as Ex. PW-5/A and Ex. PW-5/B. This witness was cross examined on behalf of both the accused persons.
12. PW-9 HC Manoj Kumar stated that on 02.04.2013, the present filed was entrusted to him for further investigation. After completion of investigation, this witness filed the charge-sheet against both the accused persons before the court. This witness was cross examined on behalf of both the accused persons.
13. PW-10 ASI Rajender was the duty officer, who exhibited on record computer generated copy of FIR as Ex.PW10/A (OSR) and the endorsement on the rukka as Ex.PW10/B. This witness was cross examined on behalf of both the accused persons.
FIR No. 47/13, PS Mianwali Nagar Page 5/1214. No other PW was left to be examined, hence PE was closed on 11.09.2018.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
15. Statement of accused persons recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them. It is stated by accused Gaurav Shokeen that he was arrested by the police when he was returning from the bank after withdrawal of Rs. 30,000/- from bank. Accused Karan Shokeen stated that he was arrested from his home. Accused persons opted not to lead defence evidence.
ARGUMENTS:
16. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimony has remained unrebutted.
That on a combined reading of testimony of prosecution witnesses, offence U/s 356/379/411/34 IPC is proved beyond doubt.
17. On the other hand, Ld. Counsel for accused persons have stated that there is no legally sustainable evidence against the accused persons. It is further argued that case property has been planted upon the accused persons and no recovery has been effected from their possession. It is further argued that accused persons have been falsely implicated in this case and their identity is highly doubtful. It is further argued that there are material discrepancies in the testimony of star witnesses which entitled the accused persons to a benefit of doubt. It is further argued that prosecution FIR No. 47/13, PS Mianwali Nagar Page 6/12 has failed to build the case against accused persons, hence they are entitled to be acquitted of the offence charged against them.
FINDINGS:
18. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
19. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused persons are indicted for the offences U/s 356/379/411/34 IPC. Section 356 IPC provides punishment for assault and using criminal force to any person in attempting to commit theft on any property which that person is then wearing or carrying. Section 379 IPC provides punishment for theft by taking any movable property dishonestly out of the possession of person. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowing or having reason to believe the same to be stolen property.
20. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused persons not guilty for any offence charged herein and they deserve acquittal for the following reasons:-
21. The testimony of complainant/PW-1 is full of material discrepancies and contradictions that renders his testimony highly unreliable. PW1 in his examination in chief stated that two police officials came from behind when he raised alarm whereas his wife PW2 stated that the police officials came from front side. PW1 also claim the presence of third police official which is FIR No. 47/13, PS Mianwali Nagar Page 7/12 not mentioned by PW2 in her testimony nor the said fact has been found mentioned by PW1 in his statement Ex.PW1/A when confronted during his cross examination. Further PW1 stated in his examination in chief that accused Gaurav was driving the motorcycle whereas PW3 on the contrary stated that accused Gaurav Shokeen was pillion rider and accused Karan was driving the motorcycle. PW1 in his examination in chief stated that the driver of the bike apprehended the neck of his wife and snatched her Gold Chain whereas when he was confronted with his statement PW1/A during his cross examination, the said fact was not found to be stated therein. PW1 during his cross examination stated that he has signed some paper at the instance of police officials but he could not tell number of documents and nature of those documents. He also admits during his cross examination that he could not see the face of any of the snatchers. He could not even tell whether the snatchers were having helmets or not at the time of incident. He also admits to have identified the chain at the instance of his wife. During his cross examination PW1 stated that he and his wife were made to board the PCR Van which took them to police station whereas on the contrary, PW2 stated during her cross examination that they went to PS Mianwali on bike. She also failed to state as to whose bike was used as admittedly PW1 and PW2 were on foot when the incident took place. Another contradictory statement of PW1 is that he claimed to have made PCR call whereas PW2 claimed to have made a call to the police on 100 number. Nowhere in the testimony of PW1, it is stated that the accused persons were apprehended in their presence or the recovery was effected from any one of them rather, PW1 during his cross examination stated that when they reached the PS, the accused persons were already present there sitting in un-muffled face and the information about their apprehension was given to him after 15-20 minutes of the incident. The afore mentioned material infirmities and discrepancies appearing the testimony of PW1 does not establish the identity of either of the accused as perperater of the crime nor it proves the recovery of the stolen articles from their possession beyond reasonable doubt.
FIR No. 47/13, PS Mianwali Nagar Page 8/1222. Now, coming to the second star witness of the prosecution i.e PW2 Poonam Kaur. In the testimony of PW2 also several material discrepancies and contradictions appeared vis a vis testimony of police witnesses and PW1. PW1 during his cross examination stated that he alongwith his wife PW2 were going to his office for submitting his resignation at Bhartiya Walmart Easy Day when the incident took place whereas PW2 during her cross examination stated that she was going with her husband to Raddisson Hotel for shopping. PW2 stated that spot of incident was at walking distance of about one hour from her house and they left the house at about 03.30-04.00p.m whereas as per the statement of PW1, the incident took place at 03.30 p.m which is otherwise not possible if the statement of PW2 is considered. Further, PW2 claimed to have her mother alongwith her who also raised alarm upon snatching whereas neither her mother has been cited as witness nor PW1 has mentioned her presence on the spot in his testimony. PW2 in her examination in chief stated that two police officials came from the front side whereas during her cross examination, she stated that police officials came from back side and there was no third police official claimed to be present at the spot contrary to the claim of PW1. PW2 admitted during her cross examination that accused persons were not arrested in her presence nor the snatched chain was recovered from them in her presence. In fact, PW2 during her cross examination stated that chain was shown to her at PS Mianwali Nagar and accused persons were already present at PS in unmuffled face. The afore mentioned material infirmities and contradictions appearing in the testimony of PW2 does not establish the identity of either of the accused as perpetrator of the crime nor it proves the recovery of the stolen articles from their possession beyond reasonable doubt.
FIR No. 47/13, PS Mianwali Nagar Page 9/1223. PW3 HC Ravi Dutt in his examination in chief stated that the Gold chain was recovered from possession of accused Gaurav on the spot that was identified by PW2 Poonam which is contradictory statement to the claim of PW1 and PW2 as they categorically stated that chain was shown to them in the PS and not recovered in their presence. This witness failed to prove the departure entry made in the PS vide which he was on patrolling duty. As per PW3, no public person was present at the spot whereas as per PW2 during her cross examination, several public persons came at the spot when she made a noise. No public person has been examined by the police official in this regard. Further, PW3 in his cross examination stated that it took 10 minutes to accused to run about 8-10 sq yards from the place of incident whereas the case of prosecution is that snatchers were on the motorcycle and not on foot. The testimony of PW3 also does not inspire confidence and his presence at the spot can not be believed upon.
24. Similarly, PW-8 HC Satya Parkash Singh who was stated to be present at the spot alongwith PW3 HC Ravi Dutt also failed to prove on record any DD entry /departure entry vide which he was on patrolling duty at the time of incident. As per PW-8, the accused persons were nabbed at a distance of 60-70 meters away from place of incident/complainant whereas as per PW3 the accused persons were apprehended at a distance of 8-10 sq yards which is again a contradictory stand taken by both the police witnesses. PW-8 during his cross examination stated that Gold chain was recovered in presence of complainant which is completely a contradictory statement to the claim of PW1 and PW2.Hence, the testimony of PW8 HC Satya Parkash is highly doubtful to be relied upon.
25. Now coming to the testimony of IO ASI Shyam Lal/PW-7. Again there are material contradictions that cropped up in his testimony when compared to the testimony of PW1 and PW2 alongwith the other police FIR No. 47/13, PS Mianwali Nagar Page 10/12 witnesses. As per PW7, all the proceedings have been conducted at the spot including recording of statement of witnesses. As per PW7, complainant and his wife remained at the spot till 9.30 p.m and they did not accompany him to the PS. On the contrary, PW2 during her cross examination stated that she along with her husband left PS Mianwali at about 06.30-07.00 p.m and as per her testimony and the testimony of PW1, they left the spot for PS after 15-20 minutes of the incident. As per PW1, no proceedings were conducted by any of police official till time he remained at the place of occurrence and as per him and his wife PW2, their statements were recorded at PS. PW7 stated that when he reached the spot, Ct Charanjeet was already present there whereas PW5 Ct Charanjeet Singh stated to have accompanied IO ASI Shyam Lal to the spot which is a contradictory status. PW7 also failed to prove on record the departure entry vide which he reached the spot. The arrest of the accused persons as per arrest memo Ex.PW1/C and Ex.PW1/D bears the signature of complainant as a witness which is again doubtful in view of statement of PW1 and PW2 who claimed to have left the PS by 06.30 or 07.00 p.m whereas time of arrest is shown as 09.00 p.m and 09.10 p.m respectively. The possibility of plantation of case property with the accused persons and their false implication by the police cannot be ruled out in view of the aforementioned material discrepancies.
26. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
FIR No. 47/13, PS Mianwali Nagar Page 11/1227. The testimony of prosecution witnesses does not inspire confidence due to several inconsistencies in their version. The identity of the accused persons itself comes under doubt. Thus, in the considered view of this Court, the prosecution failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused persons for the benefit of doubt. Therefore, the accused persons are hereby acquitted of the charges levelled against them in the present case.
28. Requirements of Section 437-A Cr.P.C have already been complied with. File be consigned to Record Room after due compliance.
Digitally signed VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2019.01.21
15:19:21 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 21.01.2019 MM-04 (WEST)/DELHI
Containing 12 pages all signed by the presiding officer.
Digitally signed by VISHALVISHAL PAHUJA Date: PAHUJA 2019.01.21 15:19:27 +0530 (VISHAL PAHUJA) MM-04 (WEST)/DELHI FIR No. 47/13, PS Mianwali Nagar Page 12/12