Delhi District Court
State vs P. Shivlingam & Ors. on 30 July, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s P. Shivlingam & Ors.
FIR No. 1427/06
PS: Saraswati Vihar
JUDGMENT
A) The date of commission : 24/12/2006
of offence.
B) Name of the complainant : Bhupender Tiwari
S/o Dharamdev Tiwari
C) Name & address of accused : 1. P. Shivlingam
S/o. Sh. Palani Swami
2. Ashok @ Bangali
S/o. Sh. Shiv Charan
3. Appu @ Srikant, S/o. Ramaswami
D) Offence complained of : U/s 394/411/34 IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Proceedings qua accused
P. Shivlingam abated on 09.11.2010
Accused Ashok @ Bangali already
convicted on his plea of guilt on 18.04.09
Accused Appu @ Srikant acquitted.
G) The date of such order : 30/07/2012
Date of Institution : 22/02/2007
Judgment reserved on : Not reserved.
Judgment announced on : 30/07/2012
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 1/17
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 24/12/06 both the accused P. Shivlingam and Ashok got recovered a brief case of light grey colour containing a black purse with one copy of credit card bill on which name of Bhupender Tiwari was written belonging to the complainant Bhupender Tiwari from the bushes near railway line, behind Wazirpur Depot, Delhi which was dishonestly received or retained by them in furtherance of their common intention knowing or having reason to believe that the said brief case to be stolen property and thereby they committed offences punishable under Section 411/34 IPC. It is further alleged that on 25/12/06 accused Appu @ Srikant got recovered a mobile phone make Nokia 6681 belonging to the complainant Bhupender Tiwari from his house at G-416, JJ Colony, Shakurpur, Delhi and thereby he committed an offence punishable under Section 411 IPC.
2. After completion of investigation challan was filed by the police U/s 394/411/34 IPC of which cognizance was taken by the Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 2/174. Vide order dated 08/03/2007 charge was framed against all the accused persons for trial of offences punishable under Section 411/34 IPC to which all the accused persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
5. During the course of trial Accused Ashok @ Bangali pleaded guilty and vide order dated 18.04.2009 he was sentenced to Rigorous Imprisonment for the period already undergone by him in J/C. Accused P. Shivlingam expired during trial and vide order dated 09.11.2010 proceedings qua him was abated.
6. In order to prove their case the prosecution has examined 11 witnesses, testimonies of whom are discussed below:-
PW-1 Dr. Seema has proved the MLC No.603/06 dated 14.12.2006 as Ex. PW-1/A. PW-2 Ct. Satender Singh deposed that on 24/12/06 he joined the investigation of the present case with ASI Omprakash and HC Ashok Kr and arrested accused Shivlingam and Ashok from their houses vide memo Ex.PW-1/A and B and recorded their disclosure statement as Ex. PW-1/C and D. He also proved the pointing out memo as Ex. PW-1/E and F. PW-3 Ct. Balraj deposed that on 14/12/06 on receipt of DD No.58B he along with ASI Om Prakash reached at Keshavdwar, near Wazirpur Depot and where it was revealed that the injured was removed to Muni Maya Ram State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 3/17 Hospital. They reached there and collected the MLC of injured Bhupinder Tewari. He deposed that IO recorded the statement of the injured and made endorsement on it and handed over the same to him for registration of the FIR. He got registered the FIR and handed over the copy of the same to IO.
PW-4 Ct. Om Prakash has proved the DD No. 58B as Ex. PW-4/A. PW-5 HC Ashok Kumar deposed that on 24/12/06 he was posted at PS Saraswati Vihar and joined the investigation of the present case. He deposed that during investigation accused Shivlingam, accused Ashok @ Bengali and accused Appu were arrested in the case vide arrest and personal search memos Ex. PW-1/A and B. Further that accused Shivlingam and Ashok were personally searched vide memo Ex. PW-5/A and B and their disclosure statement were recorded by the IO as Ex. PW-1/C and D. He deposed that the IO prepared the pointing out memos Ex. PW-1/E and F at the pointing of Shivlingam and Ashok. He deposed that accused Shivlingam and Ashok got recovered one brief case from behind the Wazirpur depot near Railway line and the said brief case was found to be contained one purse which is containing credit card bill. He deposed that case property was seized vide memo Ex. PW-5/C. He correctly identified the case property i.e. Brief case with purse and bill as Ex.P1 (colly.).
PW-6 SI Sube Singh has proved the copy of FIR as Ex. PW-6/A and endorsement on rukka as Ex. PW-6/B. PW-7 HC Rajender Singh has proved the copy of FIR as Ex. PW-7/A. State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 4/17 PW-8 Bhupender Tiwari deposed that on 14/12/06 at about 9:30pm he left his brother's home situated at Pitampura on his scooter bearing No. DL 8S 0936 and he was going to his residence Karampura via Wazirpur Depot. He deposed that at about 10:20pm when he reached near Keshav Dawar Sub way he received a telephonic call on his mobile No.9810257879, he stopped his scooter and he was receiving the call meanwhile one unknown person gave stone blow on his head from his back side, he received injuries and fell down. He deposed that his mobile, brief case, purse were taken away by the said person and his associates but he do not know the number of associates of the said person. Further that his brief case was containing Rs.15,000/- cash and drafts of Rs.15,000/- and his purse was containing his DL and credit card and Rs.10,000/-. He further deposed that he could see the accused persons from their back side and therefore cannot identify the accused. He proved his statement recorded by the police as Ex.PW-8/A. This witness was further examined on 24/11/09 wherein he deposed that during investigation he handed over the original bill of his mobile make Nokia 6681 IMEI No.35566009539703 to the IO the said bill is in his name and same is Ex. PW-8/B the said bill was seized vide memo Ex.PW-8/C. He deposed that he was also medically examined at the Muni Maya Ram jain Hospital, Pitampura, Delhi. Further he correctly identified the case property i.e. Credit Card statement as Ex. P-1, mobile phone as Ex. P-2, blood stained shirt as Ex. P-3.
In reply to a specific leading question put by the Ld. APP he deposed that he cannot identify the accused persons as he had seen them from their back side.
PW-9 SI Sudhir Kumar deposed that on 24/12/06 accused Appu was State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 5/17 apprehended and case FIR No.1462/06 was registered U/s 399/402/34 IPC & 25/54/59 Arms Act and accused made disclosure statement regarding the incident. After registration of the above said case FIR investigation was marked to SI Rajiv Ranjan.
PW-10 SI Rajeev Ranjan deposed that on 24/12/06 the accused Appu @ Srikant was arrested along with other accused persons in case FIR No.1462/06. He further deposed that during police custody accused Appu confessed about his involvement in the present case along with other accused persons. The disclosure statement is mark-A. Further he proved the copy of FIR No.1462/06 as Mark-B. PW-11 SI Omprakash deposed that on 14/12/06 he was posted at PS Saraswati Vihar as an ASI. On that day at about 10:35pm on receipt of DD No. 58B he along with Ct. Balraj reached at the spot at Keshav Dawar Wazirpur, Depot from where they came to know that injured was taken to Mani Maya Ram Hospital by the PCR. No eye witness met there. He deposed that he along with Ct. Balraj went to MMR Hospital from where he obtained the MLC NO. 603/06 of Bhupender Tiwari who was admitted in the hospital and getting treatment. Dr. opined on the MLC of injured Bhupender Tiwari fit for statement. He recorded the statement of Bhupender Tiwari Ex.PW-8/A. He prepared rukka Ex.PW-11/A and handed over the same to Ct. Balraj for registration of the case. The concerned doctor handed over him the sealed pulinda of cloths of injured Bhupender Tiwari which was taken in possession vide memo Ex.PW-11/B. Thereafter he came back to spot. After registration of the case FIR Ct. Balraj came to the spot and handed over the copy of FIR and original rukka to him. He prepared site plan Ex.PW-11/C. Further he deposed that he tried to search the State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 6/17 accused and case property but could not found on that day. Thereafter he along with Ct. Balraj came back to PS. Pulinda of the cloths handed over by the doctors was deposited in malkhana. Further he deposed that on 20/12/06 injured complainant Bhupender Tiwari came to PS and handed over the cash memo/bill of his robbed mobile. Bill Ex.PW-8/B was taken in possession vide memo Ex.PW-8/C. He further deposed that on 24/12/06 a secret informer informed him that two persons involved in committing the offence on 14/12/06 were standing at near Shamshan Ghaat Shakurpur. He reported to the then SHO. Thereafter he along with HC Ashok and with Ct. Satender and with secret informer reached at Shamshan Ghaat Shakurpur and at the instance of secret informer they apprehended both the persons who disclosed their name as P. Shivlingam and Ashok Bangali. He arrested both the accused P. Shivlingam and Ashok Bangali vide arrest memo Ex.PW-1/B and A respectively. he took their personal search vide memo Ex.PW-5/A and B. Further he deposed that on inquiry the accused P. Shivlingam and Ashok Bangali disclosed that they along with accused Appu had robbed a person near Keshav Dawar Wazirpur Depot and they distributed among them the robbed amount of Rs.15,000/-. They also disclosed that they had robbed mobile phone was taken by accused Appu. They also disclosed that they had thrown the robbed brief case and wallet shrubs behind the railway line Wazirpur Depot. He deposed that they further disclosed that they can get recovered the empty brief case and the wallet and the mobile phone. He recorded their disclosure statement Ex.PW-1/D and C. Both the accused P. Shivlingam and Ashok lead them to the shrubs behind the railway line Wazirpur Depot and got recovered a grey colour brief case containing black colour wallet which containing statement of credit card. He took in possession the said brief case and purse vide memo Ex.PW-5/C. Both the accused lead them to the State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 7/17 place of incident. He prepared pointing out memo Ex.PW-1/E and F. Thereafter they along with accused persons and the case property came back to PS. Case property was deposited in the malkhana. Both the accused persons were lodged in lockup. Further he deposed that on 25/12/06 he was informed by the DO that the accused Appu was arrested by SI Rajeev Ranjan in case FIR No.1462 PS U/s 399/402 IPC Saraswati Vihar. He obtained the copy of FIR No.1462 PS U/s 399/402 IPC Saraswati Vihar. Disclosure statement of accused Appu mark-A and statement of witness from SI Rajeev Ranjan IO of the case FIR No.1462 PS U/s 399/402 IPC Saraswati Vihar. He along with Ct. Satender interrogated the accused Appu in the present case who disclosed that he can get recovered the robbed mobile phone. He recorded his disclosure statement Ex.PW-11/D. Accused Appu lead them to his house at G-416, JJ Colony, Shakurpur, Delhi and produced a mobile make Nokia 6681, whose IMEI No. is mentioned in seizure memo, which was kept above the TV in his house. He prepared pulinda of the said mobile sealed with the seal of OP. Same was taken in possession vide seizure memo Ex.PW-11/E. Thereafter, he along with Ct. Satender and with accused and with case property came back to PS. Accused was lodged in lockup. Case property was deposited in malkhana.
He further deposed that on 26/12/06 he obtained the MLC of the complainant Bhupender Tiwari. This witness has correctly identified the case property i.e. the Brief case and wallet as Ex.P-3 colly. The credit card statement as Ex.P-1 and the mobile phone as Ex.P-2.
This witness was cross examined by Sh. Ajay Mahla Ld. Counsel for the accused Appu where he deposed that he received the secret information while sitting in the PS. Informer visited the PS and gave him information. He had asked public persons to join in the investigation at the time of recovery of mobile phone from accused Appu but non had agreed. He deposed that he State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 8/17 have no personal knowledge whether a case U/s 107/151 CrPC was registered against accused Appu and during which one mobile phone was seized from him. He denied the suggestion that when the accused came to PS for taking possession of his mobile phone seized during proceedings U/s 107/151 CrPC he was falsely implicated in the present case. He further denied the suggestion that nothing has been recovered from the possession of accused Appu. They remained present at the house of accused around 5:30pm. He deposed that all the papers work was done while sitting at the house. He denied the suggestion that the mobile phone has already been taken from the complainant by the police officials in order to booked accused in a false case.
7. P.E. was closed vide order dated 04.07.2012. Statement of accused Appu @ Srikant U/s 313 Cr.P.C was recorded on 04/07/12 to which he pleaded his innocence and preferred to lead D.E. He examined his mother Ms. Mallika as DW-1. She deposed that on 17/12/06 the accused was arrested in case U/s 107/151 Cr.P.C and he remained in custody till 21/12/06. She further deposed that after his release from the jail when he went to the PS Sararaswati Vihar to get his mobile phone which was seized by the police at the time of his arrest, he was falsely implicated in the present case. D.E. was closed vide order dated 18.07.2012 and thereafter matter was fixed for final arguments.
8. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 9/179. Ld. Defence Counsel has argued that the accused Appu @ Srikant has been falsely implicated in the instant case just on disclosure statement of the other accused persons namely P. Shivlingam and Ashok. The recovery of the alleged mobile phone has been planted on the accused. He has further argued that despite the area from which the said mobile phone is alleged to have been recovered being thickly populated, no public person was made a witness. It is further argued that no person who has the possession of stolen articles will keep it in open so as to be found out by anyone.
10. Per contra Ld. APP for state has submitted that the prosecution has been able to prove its case beyond any reasonable doubt and the testimonies of the police officials should be read at par with that of any public witness and that their testimony should not be doubted just because they happen to be police officials.
11. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 10/1712. In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs. State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 11/17
13. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."
14. The accused in the present case has been charged with offence under Section 411 IPC.
15. In Trimbak Vs. The State of Madhya Pardesh, AIR 1980 SC 39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under section 411 IPC the prosecution was required to prove, (1) That the stolen property was in the possession of the accused, (2) That some person other than the accused had possession of the stolen property before accused possession of the property before accused got possession of it, and (3) That the accused had knowledge that the property was stolen property.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 12/1716. The term Stolen Property has been defined U/s 410 of IPC.
Section 411 IPC reads as under:
Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
17. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on the record which would warrant the conviction of the accused on the touch stone of golden principal of criminal jurisprudence that the guilt of the accused has been proved beyond the reasonable doubt.
18. After hearing the rival arguments and after perusal of the material on record this court is of the opinion that the prosecution case suffer from severe infirmities, the benefit of which must go to the accused. The recovery of the said mobile phone from the accused remains doubtful because of reasons discussed hereinafter.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 13/1719. As per the story of the prosecution the said phone was recovered from the house No.G-416, JJ Colony, Shakurpur, Delhi of the accused but it has not placed any evidence whether documentary or oral to show that the said house belonged to the accused. This court concurs with the arguments of Ld. Defence counsel that if the accused was the receiver of stolen property i.e. the said mobile phone he would not have kept the same on the T.V. Either he would have disposed it off or would have used it but the same was not found from his person. It has not been mentioned in the seizure memo Ex.PW-11/E whether the mobile phone at the time of its recovery was having any SIM Card inserted in it or not. There is no clarifications in the whole story of the prosecution where the SIM Card of the complainant was. Whether it was destroyed by the accused persons P. Shivlingam or Ashok or by Appu.
20. As per Sec.100 of Cr.P.C before doing any search of a closed place it shall be mandatory for the officer concerned to call upon two or more independent and respectable inhabitants of the locality to be witness of the search and if no one is willing, to issue an order in writing to them. But it has not been done in this case for the reasons best known to the prosecution. Hence, in my considered opinion, the prosecution has not been able to travel the distance from "may" to "must" and the case against the accused has fallen short in terms of the golden principle of the criminal jurisprudence that the prosecution must prove the case against the accused beyond reasonable doubt.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 14/1721. Despite the place of recovery being a densely populated place ,no efforts were made by police officials to make them join the investigations.
It was held in Hem Raj v. State of Haryana AIR 2005 SC 2110, "The fact that no independent witnesses though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the known of the things from the beginning was not examined by the prosecution. Non examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance".
22. Also in Roop Chand Vs. State of Haryana 1989 (2) RCR 504 it was held that where the IO has failed to even note down the names and addresses of the persons who have refused to join as public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
23. The seizure memo Ex.PW-11/E does not mention the time at which the accused was taken there. Further it has not been mentioned as to weather any of his family member was present at that time or not. Weather it was locked or was opened by someone or lock was broken open etc. This fact coupled with non placing on record the proof of his residence raises serious doubts on the story of the prosecution which remains unexplained.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 15/1724. In view of the above discussion the recovery of the said mobile phone from the accused Appu remains in shadow of doubt and accordingly the case of the prosecution falls.
25. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB) , 1997(1) R.C.R.(Criminal) 662).
26. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 16/17 Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
27. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused. In the present case, the prosecution has miserably failed to discharge its onus. The evidence available on record is coupled with unexplained holes which are not sufficient to substantiate the guilt of the accused and benefit of doubt must go to the accused. Accordingly the accused Appu @ Srikant deserves acquittal.
28. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on July 30th, 2012.
State V/s P. Shivlingam & Ors. FIR No. 1427/06 PS: Saraswati Vihar Page No. 17/17