Delhi District Court
Ca No.10/2015 Amit vs . State (Nct Of Delhi) on 6 June, 2015
CA No.10/2015 Amit Vs. State (NCT of Delhi)
IN THE COURT OF BHUPESH KUMAR,
SPL. JUDGE, (PC ACT) CBI01, (SOUTH)
SAKET COURTS : NEW DELHI
CA No. 10/2015
Unique Case ID No. : 02406R0094922015
Amit
S/o Sh. Netrapal,
R/o. House No. A465, Ambedkar Basti,
Sector1, R.K. Puram,
New Delhi. ....... Appellant
VERSUS
State (NCT of Delhi) ....... Respondent
And
CA No. 09/2015
Unique Case ID No. :02406R0094892015
Deenu
S/o. Late Sh. Balbir Singh
R/o. House No. A478, Ambedkar Basti,
Sector1, R.K. Puram,
New Delhi. ...... Appellants
VERSUS
State (NCT of Delhi) ....... Respondent
Dated: 06.06.2015 Page 1 of 13
CA No.10/2015 Amit Vs. State (NCT of Delhi)
Criminal Appeal u/S. 374 Cr.P.C.
against the judgment dated 23.02.2015 and
impugned order on sentence dated 25.02.2015
of Ld. ACMM
Date of Institution : 24.03.2015
Arguments Heard on: 21.05.2015
Date of Decision: 06.06.2015
O R D E R
1. Vide this common order, the separate appeals filed by appellants Amit bearing CA No.10/15 and Deenu bearing CA No. 09/15 shall be disposed of together as arising out from the same impugned order dated 25.02.2015 of Ld. Trial court, vide which appellant Amit was sentenced to undergo rigorous imprisonment for a period of one year alongwith fine of Rs.2,000/ and in case of default of payment of fine, further imprisonment for a period of three months for offence punishable under Section 356/379 IPC whereas appellant Deenu was sentenced to undergo rigorous imprisonment for a period of one year alongwith fine of Rs.2,000/ and in case of default of payment of fine, further imprisonment for a period of three months for offence punishable under Section 411 IPC. Notice of the appeal was issued to the state. Trial court record was called. In compliance of provisions of Section 437 A Cr.P.C., both the appellants Dated: 06.06.2015 Page 2 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) were directed to furnish bail bonds and surety bonds in the tune of Rs. 10,000/. Same were furnished and accepted.
2. Arguments of Sh. Udai Raj Singh, Ld. Counsel for appellants and Sh. Pravin Rahul, Ld. Addl. PP for State/respondent heard.
3. Before proceeding ahead, here it is necessary to reproduce the case of the prosecution in nutshell. On 14.09.2010, on receipt of DD no.6 A dated 14.09.10 PS Saket in respect to chain snatching, ASI Virender Singh alongwith Const. Harkesh went to spot at Main Road, near Sector1, Pushp Vihar Nursery, New Delhi where complainant Smt. Sunita met him. He recorded the statement of Smt. Sunita wherein she has stated to the effect that on the same day, at about 11.00 a.m., she was going to her home at House No. 294 BII, Chirag Delhi alongwith her daughter Bhawna and when she crossed the nursery of Sector1, Pushp Vihar, two boys came from behind on motorcycle and the pillion rider of the motorcycle has snatched the gold chain from her neck and fled away from the spot. She has further stated that she can identify the boys if shown to her. On the basis of the statement of the complainant, FIR bearing no. 260/10 dated 14.09.2010 U/s. 356/379/411/34 IPC was registered at PS Saket. Investigation of the case was marked to ASI Virender Singh. On 10.11.2010, IO has received information vide DD no.12 A dated 10.11.2010 PS Saket that SI Jeet Singh Dated: 06.06.2015 Page 3 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) of Special staff has arrested the appellants Deenu and Amit u/s. 41(1) Cr.P.C. who had made disclosure statement about the commission of offence in the instant case and the gold chain snatched in this matter has been recovered. On the basis of this information, on 11.11.2010, both the appellants were formally arrested in this matter and gold chain which was recovered from the possession of the appellant Deenu was seized. Both appellants had refused to join TIP proceedings. The TIP of the gold chain was conducted and the same was rightly identified by the complainant. The investigation of the matter was ultimately culminated into the charge sheet under Section 356/379/411/34 IPC which was filed against appellants Amit and Deenu.
4. On 07.02.2011, both the appellants were charged for the offence punishable under Section 356/379 IPC with the help of Sec. 34 IPC and appellant Deenu was separately charged for the offence punishable under Section 411 IPC. Thereafter, prosecution has examined seven witnesses in support of their case i.e. PW1 complainant Smt. Sunita, PW2 HC Manoj, PW3 ASI Ram Kishan and PW6 SI Jeet Singh, all members of Special staff team, South District who had arrested both the appellants, PW5 is HC Harkesh who joined the initial investigation alongwith the IO, PW7 Sh. Ashok Kumar Prabhakar, Ahlmad in the court of Sh. Vivek Kumar Gulia, Ld. CMM, South District, Saket who had produced the Dated: 06.06.2015 Page 4 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) summoned record of FIR no. 346/10 of PS R.K. Puram and IO SI Virender Singh as PW4. After evidence of the prosecution was concluded, both appellants were examined under Section 313 Cr.P.C. wherein they had denied all the allegations against them and impleaded false implication. Both the appellants had examined two witnesses in support of their defence i.e. DW1 Smt. Bimla Devi, who is mother of appellant Deenu and DW2 Smt. Somwati, mother of appellant Amit. After the conclusion of trial, the aforesaid impugned order has been passed by the Ld. Trial Court.
5. Ld. Counsel for appellants have argued that the prosecution has failed to prove the identification of appellant Amit beyond reasonable doubts because as per the case of the prosecution, at the time of incident, appellant Amit was driving the motorcycle whereas complainant Smt. Sunita who has been examined as PW1 by prosecution has identified the appellant Amit as pillion rider. It has been further contended that the complainant Sunita in her complaint Ex. PW1/A has not given any description about the physical appearance of the appellants. Further, the attention of the court has been drawn towards the cross examination of PW1 Smt. Sunita wherein she has stated to the effect that the pillion rider was wearing helmet and after the commission of the crime, both appellants had fled away from the spot on motorcycle at a very high speed. On the basis of these submissions, it is submitted that there was no occasion for the Dated: 06.06.2015 Page 5 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) complainant to identify appellant Amit for which he should be given benefit of doubt.
6. In respect of appellant Deenu, it has been submitted that as per case of the prosecution, he alongwith appellant Amit were taken to PS R.K. Puram where appellant Deenu has disclosed the offence of chain snatching in the instant case and he has handed over the gold chain to the police which he was wearing at that time. But, the story of the prosecution is not free from suspicion because there is no explanation that why the personal search of appellant Deenu was not conducted when he was apprehended by the police from his house. Further, there is no proper explanation of the IO that why he has not joined any independent witness at the time of recovery of mobile phone from appellant Amit and gold chain from the possession of appellant Deenu when they were available at spot. Further, it has been submitted that there are material contradictions between the testimony of recovery witnesses i.e. PW3 ASI Ram Kishan and PW6 SI Jeet Singh. It has been pointed out that PW3 ASI Ram Kishan has stated in his cross examination that "appellant Amit was called from his house but I do not remember whether he went to call personally or made telephone call to him. We made inquries from appellant Deenu in the jhuggi of Amit." It has been further pointed out that PW6 SI Jeet Singh stated in his cross examination that "appellant Deenu was arrested from his jhuggi. He was also Dated: 06.06.2015 Page 6 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) interrogated outside his jhuggi." On the basis of these submissions, it has been submitted that the said contradictions, the evidence of the recovery witnesses are material which shows that the appellants were not arrested from the spot as claimed by the prosecution. It has been further submitted that no independent witness has been joined in the investigation at the time of arrest of appellant Deenu and alleged recovery of gold chain from him which further makes the recovery doubtful. On the basis of these submissions, prayer has been made to allow the appeal.
7. Ld. Addl. PP for State per contra has argued that the complainant Smt. Sunita in her complaint Ex. PW1/1 has stated to the effect that she can identify both the appellants if shown to her and she has even rightly identified the appellant Amit in the court when she appeared in the witness box as PW1. Moreover, both the appellants have refused to join the TIP proceedings, hence, an adverse inference can be drawn against them that they were involved in the commission of offence of chain snatching. In respect of appellant Deenu, it has been submitted that gold chain was recovered from him and the gold chain was rightly identified by the complainant before Ld. MM at the time of TIP proceedings and as even in the court as Ex. P1.
8. Arguments of both the parties heard at length. Material Dated: 06.06.2015 Page 7 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) perused. In respect of appellant Amit, it is found that the complainant PW1 Smt. Sunita has identified him in the Court by stating that he was sitting on pillion rider seat at the time of commission of offence. Before proceedings ahead here it is necessary to reproduce the relevant portion of cross examination of PW1 which is as under : "It took some moments for pillion rider to snatch my chain and in this process, he was looking at me. It is correct that the said persons snatched my chain on moving motorcycle.........It is correct that pillion rider was wearing a helmet, however, it was opened and therefore, I could see face clearly".
9. The said portion of crossexamination of PW1 reflects that the witness has seen the face of appellant Amit because helmet wore by him was opened and he was looking at the complainant during the process of snatching chain from her. Now the question arises whether in the said short span of time, the complainant was able to recognize the face of the appellant. In this respect, it is found that this ability varies from person to person and there cannot be hard and fast rule to measure the same. Further, in this matter, there are certain other aspects which cannot be ignored. First, that there is nothing on record which suggests that the complainant or IO or any other police official was having any personal grudge or any enmity against the appellant to falsely implicate him. Secondly, the appellant has refused to join the TIP proceedings on the ground that his photographs were Dated: 06.06.2015 Page 8 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) taken at police station. This plea of the appellant is not sustainable because no explanation in this respect was called from the IO or any other witness during cross examination. Even no suggestion was put to IO or any other police witness that the photographs of the appellants were taken at police station.
10. In case Anil Kumar Vs. State 1996 Criminal Law General 2491 Hon'ble Delhi High Court has held to the effect on failure of appellants to join Identification of Parade and adverse inference can be drawn against him.
11. No doubt as came earlier, the evidence of complainant reflect that she had fleeting glimpse of the appellants at the time of occurrence but this fact cannot be ignored that the appellants was correctly identified by the complainant in court who has no personal grudge/enmity with the appellants. Further, there is no material on record that the appellants or his photographs were shown to the complainant, hence, under these eventualities, it is the fit case to take adverse inference against the appellants for his refusal to join the TIP proceedings.
12. Further as contended by Ld. counsel for appellants that the complainant has not given any description of the appellants in the complaint Dated: 06.06.2015 Page 9 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) Ex. PW1/A but the appellants cannot be benefited only on this aspect when the prosecution has otherwise succeeded in proving the identification of appellant Amit beyond reasonable doubts. Moreover, the complainant is a housewife and it is not expected from her that she should know all the technicalities of law to seek conviction of culprit who had snatched gold chain from her.
13. In respect of appellant Deenu, it has been contended by the Ld. Counsel for the appellant that when the appellant was arrested from his jhuggi then why the gold chain in question claimed to be wore by the appellant at that time, was not seized. In this regard, the testimony of PW2 HC Manoj, PW3 ASI Ram Kishan and PW6 SI Jeet Singh perused. All the said witnesses categorically deposed to the effect that on 10.11.2010, all of them alongwith certain other staff during the investigation of FIR No. 346/2010 PS R. K. Puram went to the house of appellant Amit where appellant Amit alongwith appellant Deenu and Deepak were apprehended who were taken to Special Staff office where appellant Deenu disclosed the commission of offence of chain snatching in the area of PS Saket. The said chain was wore by the appellant Deepu. The chain was seized and was recovered by the IO of the instant case. During the crossexamination of all these witnesses, apart from putting mere suggestion that the chain was recovered from another person Vicky, no other explanation was called from Dated: 06.06.2015 Page 10 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) any of the witness. There is nothing in the crossexamination of any of the said recovery witnesses which create doubt that the recovery has not been affected from appellant Deenu or that the chain has been planted by the police. Further, the appellants were arrested U/s 41.1 Cr.PC by the special staff and only thereafter, the chain was recovered. As stated earlier, the member of special staff raided the house of the appellants persons during the investigation of FIR No.346/2010 U/s 327/34 IPC regarding the mobile phone only which was recovered from appellant Amit. The material on record, further reflects that till then the police was not aware about the involvement of the appellants in the present matter and their involvement came to the knowledge of the police only when the appellant was interrogated and has handed over the gold chain to the police. Under these eventualities, there was no occasion for the police to recover the chain from the appellant Deenu at the spot from where he was apprehended in FIR No. 346/2010.
14. In respect to the contradictions between the testimony of PW3 and PW6, it is found that though the said contradictions exists but there is nothing in the cross examination of the said witness which casts suspicion that the appellants were not arrested from their jhuggis on 10.11.2010 at about 12 noon. Under these eventualities, no undue importance can be attached to the contradictions came in the testimony of both these witnesses. Dated: 06.06.2015 Page 11 of 13
CA No.10/2015 Amit Vs. State (NCT of Delhi)
15. In respect of nonjoining of independent witnesses at the time of arrest of the appellants, PW6 IO SI Jeet Singh has explained that at the time of arrest of appellants, he has asked some public persons to join the investigation but they refused. In respect of nonjoining of independent witness at the time of recovery, it is found that the recovery was effected at the office of the Special staff when the appellants after admitting the commission of offence in this matter has handed over the gold chain to SI Jeet Singh of Special staff. Under these circumstances, nonjoining of public witness is found to be not fatal to the case of the prosecution when the evidence of the recovery witnesses is otherwise found to be clear, cogent and consistent.
16. In respect of the evidence of the defence witnesses, it is found that the DW1 Smt. Bimla Devi has stated that her son was apprehended by the police on the intervening night of 9/10.11.2010 at about 03:00 AM and took him and at that time he was not wearing any gold chain. In this regard, it is found that the police personnels who had apprehended the appellants were not cross examined on this score. Even no suggestion was put that the appellants were arrested on 09/10.11.2010 at 03:00 a.m. in the presence of his family members and at that time, the appellant was wearing underwear Dated: 06.06.2015 Page 12 of 13 CA No.10/2015 Amit Vs. State (NCT of Delhi) and baniyan only etc. In the absence of any such material, it is found that the defence witness has been examined by the appellants afterthought.
17. Further, considering the rival submissions and going through the impugned order of conviction, there is no ground to interfere in the judgment and order on sentence of Ld. Trial court. Hence, I uphold the conviction of the appellant Amit for the offence under Section 356/379/34 IPC and the conviction of appellant Deenu for the offence under Section 411 IPC passed by Ld. Trial court. Further, as ordered by Ld. Trial court, benefit of Section 428 Cr.P.C. is given to both the appellants.
18. The appellants be sent to jail to serve the sentence. Copy of the judgment be given to the appellants, free of cost. Copy of judgment be also sent to the Ld. Trial court alongwith the trial court record.
Appeal file be consigned to Record Room.
Announced in the Open Court (Bhupesh Kumar)
Today on 06.06.2015 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi.
Dated: 06.06.2015 Page 13 of 13