Delhi District Court
Ganesh vs State on 19 March, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS:
NEW DELHI
CA No. 492 of 2017
Ganesh
S/o Sh. Kedar Nath
R/o H. No. B321, Dakshin Puri
New Delhi .......... Appellant
Vs.
State
(Govt. of NCT of Delhi) .......... Respondent
Instituted on : 21.02.2017
Argued on : 07.03.2018
Decided on : 19.03.2018
JUDGMENT:
1 The appellant has impugned the judgment dated 15.11.2017 vide which he is convicted u/s 392/411 IPC and order on sentence dated 21.11.2017 vide which he is sentenced to undergo SI for 3 years u/s 392 IPC and SI for 6 months for Ganesh vs. State - CA No. 492 of 2017 1 of 21 offence u/s 411 IPC.
2 The appeal is filed on the grounds that Ld. Trial Court has failed to appreciate the evidence on record. No money or ATM Card was recovered from his possession. The other recovered items are easily available in the Market. He has been convicted on the ground that he has refused to participate in TIP and case property has been identified by the complainant in the Test Identification of case property. There are improvements and contradictions in the testimony of witnesses which are material in nature. He is entitled for acquittal.
3 Notice of the appeal is given to the prosecution. 4 The facts of the case are like this: On 07.10.2015 MP Karunakaran Nair has given a written complaint to the Police, PS OIA New Delhi with the allegations that he is a Shipping Officer with M/s. Bader Exports India Pvt. Ltd., 24, DSIDC SchemeII, OIA, PhaseII, New Delhi. They are dealing with the export of Ganesh vs. State - CA No. 492 of 2017 2 of 21 garments. He withdraws money in the last week of every month from various banks for payment to the employees. On 07.10.2015 he has withdrawn Rs. 50,000/ from PNB, Connaught Place, New Delhi, Rs. 24,500/ from Punjab & Sindh Bank, Nehru Palace, New Delhi and Rs.10,000/ from Standard Chattered Bank, New Delhi. He has kept Rs.84,500/, ATM Card of Bank of Baroda and few other documents in his black colour hand bag. The bag was snatched by one person by showing a pistol. One motorcycle was already standing in the by lanes of the factory. The snatcher sat on the pillion seat of motorcycle and both of them fled from the spot. The person who snatched his bag was wearing half sleeves grey shirt and pant. His face was round face, strongly built, short stature and clean shaving. FIR was registered on the basis of the complaint. Site plan was prepared at the instance of the complainant.
5 On 16.11.2005, HC Krishan Chand informed SI Ganesh vs. State - CA No. 492 of 2017 3 of 21
Manish Joshi that accused has been arrested in FIR No. 977/05 u/s 25 Arms Act, PS OIA, New Delhi, wherein he has disclosed about the commission of offence in question. The accused was interrogated and arrested. His disclosure statement was recorded. The accused took the police party to his residential house and got recovered one black bag bearing the words Adidas alongwith other documents which was sealed in a pullanda with seal 'MJ' and taken into possession vide separate recovery memo. Co accused Monty was searched but in vain. The accused has refused to participate in TIP. The case property was identified by the complainant during the Test Identification of Case Property. Statements u/s 161 Cr.PC were recorded. Charge sheet was prepared and filed in the Court for trial.
6 Copy of the charge sheet and documents were supplied to him. Charge u/s 392/34 r/w Section 411 IPC was framed against the appellant to which he pleaded not guilty and Ganesh vs. State - CA No. 492 of 2017 4 of 21 claimed trial.
7 Prosecution examined 8 witnesses. The appellant has admitted TIP Proceedings dated 28.11.2005 Ex. P1 u/s 294 Cr.PC. Prosecution evidence was closed. Appellant was examined u/s 313 CrPC. His defence is denial simplicator. 8 Ld. Trial Court after hearing Ld. APP, Ld. Defence Counsel and perusing evidence on record convicted and sentenced the appellant u/s 392/411 IPC by placing reliance on the evidence on record.
9 PW1 M. P. Karunakaran Nair stated that on 07.10.2015 he is a Shipping Officer with M/s. Bader Exports India Pvt. Ltd., 24, DSIDC SchemeII, OIA, PhaseII, New Delhi. They are dealing with the export of garments. Sh. S. K. Khanna is Director of the Company. On 07.10.2015 he has withdrawn Rs. 50,000/ from PNB, Connaught Place, New Delhi and Rs.24,500/ from Punjab & Sind Bank, Nehru Palace, New Delhi Ganesh vs. State - CA No. 492 of 2017 5 of 21 and Rs.10,000/ from Standard Chattered Bank, New Delhi. He has withdrawn Rs.84,500/ and kept the same alongwith ATM Card of Bank of Baroda and few other documents in his black colour bag. At 01:30 - 01:40 PM, he reached at DSIDC Shed compound, OIA PhaseII, where a person came and shown him something like pistol and the bag was snatched by that person. One motorcyclist was already standing in the by lanes of the factory and the snatcher fled on that motorcycle by sitting on the pillion seat. The person who snatched the bag was wearing half sleeves shirt of bluish colour. He was of average built. He informed Mr. Khanna as well as to the police by dialing number
100. He gave a written complaint Ex.PW1/A to the police. The sealed pullanda with illegible initials of seal was produced in the Court and opened. He has identified ATM Card of ICICI Bank, visiting card in the name of company, three envelopes with two letter heads of the company, two airways bills in the name of Ganesh vs. State - CA No. 492 of 2017 6 of 21 company i.e. Ex.P1 & P2. He has identified the accused as the person who has snatched the bag from him. During cross examination, he stated that he did not raise an alarm as he got puzzled. He was at a walking distance from premises no. 17 at the time of incident. The suggestion is denied that place of incident is a public road which is frequented by public persons. He admitted that some employees were coming out from the premises of the companies towards main road for taking lunch. He cannot tell whether any guard remains outside the entrance of the office. He does not recollect whether he has identified the appellant at the time when he was accompanying the other Constable at Tihar Jail. He does not recollect whether photographs of the appellant were shown to him by the IO. He could not note down the registration number of the motorcycle. Both the motorcyclists were in unmuffled face. He admitted that bag in his possession is easily available in the market. He was summoned after 1 - 2 days Ganesh vs. State - CA No. 492 of 2017 7 of 21 of the incident by the IO. 78 bags were mixed with his bag at the time of Test Identification. The suggestion is denied that recovery is planted on the appellant or bag was shown to him at the PS prior to the Test Identification proceedings. 10 PW2 Ct. Brij Mohan stated that on 07.10.2015, he alongwith HC Desh Raj reached on the spot on the receipt of DD No. 15 where complainant and other senior officers met them. Statement of M. P. Karunakaran was recorded on which rukka was prepared. He was sent to PS with rukka for registration of FIR and came back to the spot with copy of FIR and original rukka and handed over to the same to SI Manish Joshi. 11 PW4 HC Mange Ram has proved FIR Ex.PW4/A and endorsement Ex.PW4/B on the rukka.
12 PW7 HC Bhikambar has recorded DD No. 15 Ex.PW7/A on the basis of information received through wireless set that one person has snatched a bag containing Rs.89,500/ at Ganesh vs. State - CA No. 492 of 2017 8 of 21 gun point from M. P. Karunakaran. The roznamacha has been destroyed vide order dated 27.01.2011 Ex.PW7/B of ACP. 13 PW8 Sh. Sanjeev Jain, Ld. ASJ, Spl. Judge, CBI, South stated that on 17.11.2015 he was posted as MM, PHC, New Delhi on which dated an application to conduct TIP of case property was moved by SI Manish Joshi which was conducted by him as Sh. S. K. Aggarwal, Ld. Link MM was on leave. His order is on the application Ex.PW8/A. On 05.12.2015, he conducted the TIP of case property. Ex.PW8/B is the TIP proceedings which bears his signatures at pointsW, X, Y & Z. The complainant M. P. Karunakaran Nair has rightly identified a blank colour bag out of the 8 similar kind of bags. IO moved an application to supply the copy of proceedings and accordingly the copy was given vide his order Ex.PW8/C. The copy of proceedings was supplied to IO. The proceedings in a sealed cover were sent to concerned court through Ld. ACMM.
Ganesh vs. State - CA No. 492 of 2017 9 of 21 14 PW3 HC Krishan is the second IO of case FIR
bearing No. 977/05 PS OIA. He has recorded disclosure statement Ex.PW3/A of the appellant. He has handed over the relevant documents of the case to the IO of this case. 15 PW5 Ct. Sanjeev stated that on 15.11.2005 at 06;30 PM he alongwith ASI Omprakash was on patrolling duty at Pahari, OIA, PhaseII where appellant was apprehended on the basis of suspicion who was found in possession of one country made pistol. 45 passersby were asked to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. Rukka was prepared and sent to PS through him for registration of case. He got the FIR registered. The appellant was brought to PS. 16 On the next day, he alongwith SI Manish Joshi went to lock up of PS where appellant was interrogated. Disclosure statement Ex.PW3/A was recorded. The appellant took them to Ganesh vs. State - CA No. 492 of 2017 10 of 21 his house at B321, Ground Floor, Dakshin Puri, New Delhi where appellant got recovered one bag containing 6 - 7 visiting cards, two envelopes and five - six other documents of the factory. The bag bears the words Adidas. The documents were kept in the bag and sealed in a pupllanda with seal MJ and taken into possession vide fard Ex.PW5/A. He has identified bag Ex.P 1 and documents Ex.P2 produced in the Court. During cross examination, he stated that disclosure statement was recorded on the next day. The complainant came to the PS before appellant took them to the house of Monty. He cannot recollect whether complainant accompanied them to the house of Monty. They went to the house of appellant from the house of Monty but he cannot recollect whether complainant accompanied them or not. The relatives of the appellant were present in the house. The door of the house was lying open when they reached there. He cannot tell the number of floors of the house. The bag was kept on a 'tant' Ganesh vs. State - CA No. 492 of 2017 11 of 21 in the second room. The site plan regarding place of recovery was prepared. He cannot recollect whether bag was sealed on the spot or not. He cannot recollect whether IO has requested the occupants of the adjoining house to join the investigation. They came back to PS from the house of appellant. The complainant has accompanied them to the house of appellant. 17 PW6 Inspector Manish Joshi is IO of the case. He stated that on 07.10.2005 DD No. 15A was handed over to him upon which he went to the place of occurrence where PW1 M. P. Karunankaran met him who gave his complaint Ex.PW1/A in writing on which endorsement Ex.PW6/A was made by him and sent to PS through Ct. Brij Mohan for registration of case. Site plan Ex.PW6/B was prepared at the instance of complainant. Bank statements Ex.PW1/CX1 regarding withdrawal of money from the banks were collected by him. The disclosure statement Ex.PW3/A of appellant recorded in FIR No. 977/05, PS OIA, was Ganesh vs. State - CA No. 492 of 2017 12 of 21 handed over to him by HC Krishan. He has formally arrested the appellant vide memo Ex.PW6/C. The bag containing documents of Bader Exports India Pvt. Ltd. was taken into possession vide Fard Ex.PW5/A. The appellant has refused to participate in Test Identification proceedings. The complainant has correctly identified the case property in the Test Identification of case property. Statements of witnesses u/s 161 Cr.PC were recorded. The charge sheet was prepared and filed in the Court for trial. During cross examination, he stated that the statements of the cashiers of the banks were not recorded. He does not exactly remember about the number of floors of the house of appellant or direction of the house of appellant or who met him in the house or whether male or female member met him at the recovery spot. He does not know who is the signatory of Ex.PW6/DA. The suggestion is denied that case property is planted upon the accused. He admitted that ATM Card is not a part of case Ganesh vs. State - CA No. 492 of 2017 13 of 21 property.
18 Ld. Counsel for the appellant submitted that the complainant has not given description of the appellant in his statement to the police and his identification in the Court after a lapse of 8 years from the date of incident is at the instance of the police. He further submitted that case property is planted upon him which is evident from the fact that ATM Card of ICICI Bank does not belong to complainant and complainant nowhere told to the police that bag bears the word "Adidas". He further submitted that Ld. Trial Court has not properly appreciated the evidence as there is no evidence on record to connect him with the commission of offence.
19 Ld. Addl. PP for the State submitted that description of the appellant was given by the complainant in his statement given to the police. He further submitted that appellant has refused to join TIP which calls for an adverse inference against Ganesh vs. State - CA No. 492 of 2017 14 of 21 him. He further submitted that there is recovery of bag and documents of the company at the instance of appellantfrom his house which connects him with the case in hand. He further submitted that the bag and documents were duly identified by the complainant.
20 Heard and perused the record.
21 PW1 is the complainant. PW3 has arrested the appellant in FIR No. 977/05, PS OIA, New Delhi. PW5 & 6 have carried out the investigation of this case. PW8 has conducted the Test Identification of the case property. 22 The testimony of PW1 shows that one person wearing half sleeves shirt of bluish colour has snatched the bag containing Rs.84,500/, ATM Card of Bank of Baroda and some documents from his possession and thereafter fled from the spot by sitting on the motorcycle which was already stationed there with rider.
Ganesh vs. State - CA No. 492 of 2017 15 of 21 23 The identity of the appellant does not stand
established from the evidence on record. PW1 has not given the complete description of the appellant while appearing as PW1. The person wearing the half sleeve shirt is no description. The appellant should have given the description of the appellant while appearing as PW1 in order to identify him. He has omitted to identify the appellant when his examination in chief was recorded on 07.11.2007 and 08.10.2008. On 05.03.2011, he was called for cross examination. The appellant has not been identified till this date by the PW1. The appellant has been identified when application u/s 311 Cr.PC of the prosecution was allowed. On 21.08.2013 PW1 was recalled. He has identified the appellant. He has not given any reason on the basis of which he has identified the appellant.
24 The identification of the appellant by PW1 is no identification. It is clear from the record that appellant has refused Ganesh vs. State - CA No. 492 of 2017 16 of 21 to participate in TIP. The appellant has refused to participate in the TIP on the grounds that he has been shown to the witnesses at PS where his photographs were also taken. He was kept in unmuffled face.
25 PW3 and 5, who have arrested the accused in FIR No. 977/2005, PS, OIA, have no where deposed that appellant was kept in muffled face. Pw5 was also associated in the investigation of this case. His crossexamination clearly shows that PW1 was called to PS before appellant took them to the house of Monty as well as to his house. It shows that appellant was shown to PW1 in the PS before he was produced for TIP on 28.11.2015. This corroborates the version of the appellant that he was shown to the witnesses at the PS. The TIP proceedings looses its relevance when appellant was shown to PW1 at PS. The refusal to join the TIP on the part of the appellant is justified.
Ganesh vs. State - CA No. 492 of 2017 17 of 21 26 The bag Ex.P1 and documents Ex. P2 were recovered
at the instance of the appellant from his house on the basis of his disclosure statement. The recovery is no recovery in the eyes of law. Pw1` has nowhere deposed that his bag bears the words "Adidas" and one ATM card of ICICI Bank was in the bag. The testimony of PW5 shows that complainant has accompanied them when they went in search of accused Monty and also went to the house of appellant in order to effect the recovery. The bag was allegedly recovered at the instance of appellant from his house which was sealed on the spot. The sealing looses its relevant when it was recovered in the presence of PW1. Further, the recovered bag bears the word "Adidas" whereas this fact was not disclosed or deposed by PW1.The TIP of case property was conducted by PW8. The TIP proceedings clearly show that other bags produced by the IO do not contain the identification mark like Adidas or something else. The recovered bag and the bags Ganesh vs. State - CA No. 492 of 2017 18 of 21 produced by the IO during the TIP proceedings are not the similar bags. PW1 could have easily identified the bag when it was recovered in his presence and moreover the bags produced by the IO do not bear the word Adidas. This identification is no identification and prosecution cannot place reliance on this fact to connect the appellant with the case in hand.
27 One ATM Card of ICICI Bank was also allegedly recovered from the house of the appellant. It is not the case of the prosecution that bag also contained the ATM Crd of ICICI Bank belonging to PW1. The prosecution has failed to explain why ATM card of ICICI Bank was seized when it does not pertain to the case in hand.
28 The appellant cannot be connected with the case in hand on the basis of some documents of the firm in which PW1 is working.
29 The house from which recovery of bag is effected Ganesh vs. State - CA No. 492 of 2017 19 of 21
does not exclusively belong to the appellant. The other family members of the appellant are also residing in the said house who were also present at the time of recovery of bag. It cannot be said that the appellant was in exclusive possession of the bag and got it recovered.
30 In these circumstances, the prosecution cannot rely upon the recovery of bag to connect the appellant with the case in hand. The recovery is no recovery in the eyes of law. 31 There is no other evidence on record to connect the appellant with the commission of crime.
32 Ld. Trial Court has not properly appreciated the evidence on record. I find an infirmity in the judgment dated 15.11.2017 passed by the Ld. Trial Court and accordingly judgment is set aside.
33 The appeal is allowed. The appellant is acquitted of the offence charged. Keeping in view section 437A CrPC the Ganesh vs. State - CA No. 492 of 2017 20 of 21 appellant is directed to furnish personal bond and surety bond in the amount of Rs.10,000/ each. Bonds furnished and accepted. 34 TCR alongwith copy of judgment copy of the judgment be sent to the Ld. Trial Court.
35 Appeal file be consigned to record room.
announced in the open court on 19th March, 2018 (SURESH KUMAR GUPTA) Addl. Sessions Judge04 & Spl. Judge (NDPS) South East, Saket Courts,New Delhi Ganesh vs. State - CA No. 492 of 2017 21 of 21