Delhi District Court
By The Hon'Ble Supreme Court In Case ... vs . Delhi on 1 May, 2018
IN THE COURT OF MS. MANU VEDWAN
METROPOLITAN MAGISTRATE-01, WEST, TIS HAZARI COURT, DELHI
State v. Prince Eliasi @ Prince & Anr.
FIR No. 71/2007
PS Punjabi Bagh
U/s 356/379/34 IPC & 411 IPC
JUDGMENT
Case No. : 69931/16
Date of Institution : 23.07.2007
Date of Commission of Offence : 27.01.2007
Name of the complainant : Kiran Shekhani
W/o Sh. Shankar Shekhani
R/o House No.93, Paschim Vihar
Extension, New Delhi
Name & address of the accused : A-1 Prince Eliasi @ Prince
S/o Samsun
R/o RZ-96, Deep Enclave
Vikas Nagar, Uttam Nagar, Delhi
A-2 Rakesh
S/o Rajender Prasad
R/o RZ-83B, Vikas Nagar,
Paschim Vihar Extension, Delhi
Offence complained of : U/s 356/379/34 IPC & 411 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 01.05.2018
Date of announcing of judgment : 01.05.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 1 / 11
FIR No. 71/07 PS Punjabi Bagh
1. Vide this judgment this court shall decide the present case under Section 356/379/34 IPC & 411 Indian Penal Code 1860.
2. The complaint of the complainant is that, on 27.01.2007, at about 02.10 p.m, at road No. 29, in front of gate of Bhartiya Vidyapeeth, Delhi, within the jurisdiction of Police Station Punjabi Bagh, accused Prince Elaise @ Prince along with, accused Rakesh, used criminal force, against Ms. Kiran Shekhani, in order to commit theft of her gold chain. It is further alleged that on 07.02.2007, accused Prince Elaise @ Prince, was found in possession of that gold chain, at Syed Gaon, in front of Fire Station, Paschim Vihar, knowing or having reasons to believe that same to be a stolen property. Therefore, acused Prince Eliase @ Prince had committed an offence under Section 356/379/34 & 411 IPC & accused Rakesh had committed an offence under Section 356/379/34 IPC.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 379/356/34 IPC was framed against the accused Rakesh and charge under Section 379/356/34 IPC & 411 IPC was framed against the accused Prince Elaise @ Prince vide order dated 11.06.2010 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution has examined ten witnesses :- (1) Kiran (2) HC Harish Kumar (3) W/SI Mandodri (4) W/HC Pushpa (5) SI Sukhvinder Singh (6) Retired SI Rajmal (7) ASI Ajeet Singh (8) SI Pritam Raj. (9) Sh. Amit Bansal, Ld. ADJ (10) Sh. Pooran Chand, Ld. ADJ.
5. PW-1 Kiran, who is the complainant also, deposed that he did not remember the date of the incident due to lapse of time, but, on that day he was going to receive her daughter from her tuition. When, she reached at the gate of, Bhartiya Vidyapeeth, at about 1.00 p.m., suddenly two persons, came on a motorcycle, from behind. They were wearing helmet and snatched her wearing State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 2 / 11 FIR No. 71/07 PS Punjabi Bagh gold chain from back side and ran away. She raised alarm and two public persons started chasing aforesaid accused persons. Her gold chain was also having locket but during snatching locket dropped on the earth. She collected her chain locket after the incident. She then informed telephonically the whole incident to her husband and he called the police officials, later came at the spot and recorded her statement which is Ex.PW1/A. She could not identify the accused persons who snatched her gold chain as they were wearing helmet at the time of incident. Later on, she had identified her snatched chain during TIP proceedings of said chain. She also got released the said chain on superdari vide superdarinama Ex.PW1/B. PW-1 was cross examined by the Ld. APP after taking permission from the court. She admitted that the said incident had taken place on 27.01.2007. She denied the suggestion that she is not identifying the accused intentionally due to fear. This witness was also cross examined by the Ld. Counsel for accused at length.
6. PW-2 HC Harish Kumar deposed that, on 27.01.2007, he was posted at Police Post, Madipur Police Station, Punjabi Bagh. On that day, he was performing emergency duty along with ASI Pritam Raj. On receipt of D D No. 37, he along with ASI Preetam Raj reached in front of, Bhartiya Vidya Peeth Engineering College, Road no.29, Baba Ramdev Marg, Delhi, where they met complainant Kiran Sherwani. The complainant stated that two persons have sntached her chain. IO SI preetam Raj recorded her statement. IO prepared rukka and sent the witness to Police Station Punjabi Bagh for registration of FIR. He got the FIR registered and handed over the original rukka and copy of FIR to the IO. Thereafter, on 19.02.2007 they went to Tihar Jail and formally arrested the accused Rakesh and Prince vide arrest memo Ex.PW2/A and Ex.PW2/B.
7. PW-3 W/SI Mandodri deposed that, on 27.01.2007, she had registered the present FIR, on the basis of rukka, sent by ASI Pritam Raj, through Ct. Harish. She proved the FIR as Ex.PW3/A and her endorsement on rukka as Ex.PW3/B. State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 3 / 11 FIR No. 71/07 PS Punjabi Bagh
8. PW-4 W/HC Pushpa deposed that on 08.02.2007 he was posted at Police Station Punjabi Bagh. On that day, he was performing duty of DD Writer from 9.00 a.m to 5.00 p.m. She proved the DD entry no. 47 as Ex.PW4/A.
9. PW-5 SI Sukhwinder Singh deposed that on, 07.02.2007, he was posted at Anti Snatching Cell, Paschim Vihar. He was informed by the duty officer that two persons were apprehended by Head Constable Sat Prakash at near fire station Syed Gaon, Paschim Vihar. Investigation of the FIR NO.111/07 Police Station Paschim Vihar under Section 411/34 IPC was handed over to the witness. He reached at the spot. HC Sat Prakash handed over the rukka to Ct. Ajit for the registration of the FIR. Accordingly, Ct. Ajit went to the PS Paschim Vihar and got the FIR registered and came back at the spot along with the copy of the FIR and original Rukka and the same was handed over to the witness. HC Sat Prakash handed over two pullandas, already sealed with the seal of SP and one motorcycle along with seizure memo to PW-5. PW-5 prepared the site plan at the instance of HC Sat Prakash which is Mark A. PW-5 arrested both the accused persons and conducted their formal search. Case property was deposited in the Malkhana. He recorded the disclosure statement of the accused persons vide disclosure memo Mark C and Mark D. He prepared the pointing out memo and seizure memo of recovery of Rs. 700 vide seizure memo Mark B.
10. PW-6 SI Rajmal deposed that on 07.02.2007 he was duty officer at Police Station Paschim Vihar. On that day, Ct. Ajit came at the police station along with rukka sent by HC Sat Prakash. He registered the FIR. Copy of the same is Ex.PW6/A (OSR).
11. PW-7 ASI Ajeet Singh deposed that on 07.02.2007, he was posted at Anti Snatching Cell, Police Station Paschim Vihar, Delhi. On that day, he along with HC Satyaprakash, Ct. Ranbir, Ct. Shahjeet, SI Sharad Kohli and HC Ramesh, were on checking duty at infront of Fire station, Paschim Vihar by putting the State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 4 / 11 FIR No. 71/07 PS Punjabi Bagh barricades from 3:00 pm to 5:00 pm, as per the plan of "ROKO-TOKO-KHOJO". They were checking all the vehicles. At about 3:45 pm, two persons had come on the motorcycle from the direction of Meera Bagh T point. On seeing the barricades and police officials they tried to mend their way but they were apprehended by them. On formal search of accused Prince Illiasi, one gold chain was recovered from the right pocket of wearing jeans and one gold chain was recovered from the right back side pocket of wearing jeans of accused Rakesh. IO asked about the ownership of the chains but they failed to give satisfactory answer. Accused Prince disclosed that he snatched that chain from the area of Police Post Madipur and Rakesh also disclosed that he also snatched that chain from the area of Madipur in front of Madhuban enclave.
During investigation, it was revealed that the chain, which was recovered from the accused Prince, was snatched in the present case and chain which was recovered from accused Rakesh, was snatched in FIR No. 60/07, Police Station Punjabi Bagh. IO requested 4-5 passersby to join the investigation but they refused to join the same and left the spot without disclosing their names and address. Thereafter, IO seized both the chains by making a separate pulanda for both chain, in white color cloth and sealed with the seal of SP. IO recorded the disclosure statement of both the accused persons. IO seized chains vide seizure memo mark E. IO prepared the rukka and the same was handed over to the witness for the registration of FIR. He went to Police Station to get the FIR registered and came back at the spot along with copy of FIR No. 111/07, PS Paschim Vihar and original rukka and same was handed over to IO. IO prepared the pointing out memo Mark B. IO recorded his statement.
12. PW-8 SI Pritam Raj deposed that on 27.01.2007 he was posted at PS Punjabi Bagh as ASI. On that day, he along with Ct. Harish on obtaining DD No. 37, reached at the road no. 29, at Bhartiaya Vidyapeeth colony, where they met with complainant namely Kiran. He recorded her statement, prepared the rukka State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 5 / 11 FIR No. 71/07 PS Punjabi Bagh and the same was handed over to Constable Harish for the registration of FIR. Accordingly, he went to Police Station to get the FIR registered and came back at the spot along with copy of FIR and original rukka. Same was handed over to the witness. He prepared the site plan at the instance of complainant which is Ex. PW-8/A. On 08.02.2017, he received the DD No. 17A, regarding the apprehension of accused persons. He requested for the TIP of accused persons but they refused for TIP. On 19.02.2007, he along with Ct. Harish went to Tihar Jail no. 5 and formally arrested both accused persons. I recorded the statement of witnesses.
13. PW-9 Sh. Amit Bansal, Ld. ADJ proved the TIP proceedings of the gold chain which are Ex.PW9/A to PW9/D.
14. PW-10 Sh. Puran Chand, Ld. ADJ proved the TIP proceedings of the accused persons as Ex.PW10/A to Ex.PW10/F.
15. PW-10 ASI Satyaveer deposed that the gold chain recovered in case FIR No. 111/07 and the same was deposited in Malkhana vide entry no. 3740. Thereafter, the case property was transferred to Police station Punjabi Bagh in case FIR No.71/07 vide RC No. 19/21/07 dated 15.02.2007. Copy of the said entry is Ex.PW10/A (OSR). During cross examination, he stated that he had not brought the case property to the police station.
16. Thereafter, vide order dated 06.04.2018, PE was closed. Statement of accused persons were recorded under Section 313 Cr.P.C to which they denied all the allegations and pleaded innocence.
INGRIDIENTS OF SECTION
17. The essential ingredients to prove an offence under Section 379 IPC are:-
1. Accused had taken the movable property dishonestly.
2. Property was taken out of the possession of complainant.
3. Property was taken out without consent of complainant.
4. The property was moved to such taking.
18. Section 356 IPC prescribes punishment for Assault or Criminal Force in State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 6 / 11 FIR No. 71/07 PS Punjabi Bagh attempt to Commit theft of a property carried by a person. The essential ingredients to bring the act of the accused within the purview of this section are:-
1. Use of Assault/criminal force by the accused.
2. Such Assault/criminal force was used against the person whose property is being stolen.
3. Such Assault/Criminal force was used in attempt to commit theft of a property being worn/carried by such person.
19. The essential ingredients to prove the offence under Section 411 IPC are:-
1. The property should be in possession of the accused.
2. Such property should be 'stolen property' i.e it should have been transfered by theft, extortion or robbery, or which has been criminally misappropriated.
3. The accused had received the same knowing or having reason to believe the same to be stolen property.
20. I have heard the arguments advanced by Ld. Counsel for the accused and perused the record carefully. ,
21. It is pertinent to mention here that the star witness of the Prosecution in the instant case Ms. Kiran (PW-1), is also projected as the person against whom a crime has been committed / eye witness to the alleged incident. PW-1 has turned hostile on the point of identification of the accused. The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. The relevant extract of the same is reproduced below for ready reference:-
"....even in a criminal prosecution when a witness is cross examined and contradicted with a leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 7 / 11 FIR No. 71/07 PS Punjabi Bagh the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.....".
22. The relevant extract of the examination in chief of Ms. Kiran (PW-1) is reproduced below for ready reference:-
I am residing at aforesaid address along with my family. I am a housewife. I do not remember the date due to lapse of time but on that day, I was going to receive my daughter from her tuition. When I reached at gate of Bhartiya Vidyapeeth at about 1 p.m suddenly two persons came on a motorcycle from my behind. They were wearing helmet and snatched my wearing gold chain from back side and swiftly ran away. I raised alarm and two public persons started chasing aforesaid accused persons. My gold chain was also having locket but during snatching locked dropped on the earth. I collected my chain locket after incident. Then I informed telephonically the whole incident to my husband and I also called police officials and police official came at the spot and recorded my statement which is Ex.PW1/A bearing my signature at point A. I cannot identify both accused persons who snatched my gold chain as they were wearing helmet at the time of incident.
23. The identity of the accused has to be proved by the prosecution beyond reasonable doubt. In the case in hand the complainant has failed to identify the accused. It will not be safe to base conviction in the circumstance when the identity of the accused has itself become doubtful as well as nothing incriminating evidence has been made out against the accused.
24. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused . It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. Accordingly, accused Rakesh and Prince Elaise @ Prince stands acquitted under Section 356/379 IPC.
State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 8 / 11 FIR No. 71/07 PS Punjabi Bagh
25. Now the court shall decide the offence under Section 411 IPC against the accused Prince Elaise @ Prince.
26. It is not out of place to discuss Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
27. "22.49. Matters to be entered in Register No. II :- The following matters shall, amongst others, be entered :-
28. (c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
29. In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials who have apprehended accused Prince Elaise @ Prince along with chain has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal V/s State" 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
30. In the case at hand, non-joining of public persons in investigation and failure to prove that PW-7 along with other police officials were on patrolling duty at the State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 9 / 11 FIR No. 71/07 PS Punjabi Bagh relevant time casts a doubt on the prosecution story.
31. Further, no Public person has been made a witness in the present case.
Admittedly, the spot was a public area and public persons were present at the spot, however, no sincere efforts was made by the PW-7 to persuade them to join the investigation during recovery. No notice was served upon the said witnesses. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
32. Further, Section 100(4) Cr.P.C provides that "Before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 10 / 11 FIR No. 71/07 PS Punjabi Bagh is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do." This provision has also not been complied with by the IO.
33. It is to be noted that circumstancial evidence no doubt can be acted upon but it should be like that it must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. The version of police witnesses do not inspire confidence. The participation of the accused namely in the offence could not be proved and no presumption could be imputed to him. Normally, no presumption can be raised where recovery itself was faulted.
34. Therefore, keeping in view the aforementioned detailed discussion, the offence under Section 411 IPC is also not made out against the accused Prince Elaise @ Prince. The court is of the considered opinion that prosecution has not been able to prove the guilt of the accused and failed to prove its case beyond reasonable doubt. Accordingly, accused Rakesh and Prince Elaise are acquitted under Section 356/379/34 IPC & 411 IPC.
35. Compliance under section 437A Cr.P.C made in the ordersheet. Announced in the open court today itself i.e. 01.05.2018 (MANU VEDWAN) METROPLITAN MAGISTRATE WEST/TIS HAZARI/COURTS/DELHI State v. Prince Elaisi @ Prince & Anr. U/s 356/379/34 IPC & 411 IPC 11 / 11 FIR No. 71/07 PS Punjabi Bagh