Delhi District Court
State vs Kamal on 6 October, 2023
IN THE COURT OF MS. NEHA MITTAL
METROPOLITAN MAGISTRATE-04/CENTRAL: DELHI
STATE VS. KAMAL & ORS.
e.FIR No. 000099/2022
Case No. 5678/2022
P.S. : Sarai Rohilla
U/s 380/454/411/34 IPC
Date of institution of case : 08.04.2022
Date on which case reserved for judgment : 26.09.2023
Date of judgment : 06.10.2023
JUDGMENT :
a) Date of offence : 05.02.2022 b) Offence complained of : U/s 380/454/411/34 IPC c) Name of complainant : Smt. Pooja d) Name of accused persons, : (1) Kamal their parentage : S/o Sh. Dharam Pal local & permanent residence R/o:- Vagabond, Jakhira, Inderlok, Delhi. (2) Sadanand @ Pachua S/o Sh. Shiv Narayan Singh, R/o Jhuggi no. 33 RPF Line, Peeli Kothi Naya Bazar, Delhi. e) Plea of both accused persons : Pleaded not guilty f) Final order : Accused Kamal convicted Accused Sadanand acquitted. E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 1 of 10 BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 05.02.2022 between 02:00 pm to 04:30 pm, at H.No. L-234, Shastri Nagar, Delhi, accused Kamal had committed lurking house trespass or house breaking at the house of complainant Smt. Pooja and committed theft of jewelery articles make of Gold, one mobile phone make POCO C-3 and on 16.02.2022 at unknown time at jhuggi no.33, RPF Line Peeli Kothi Naya Bazar, Delhi, accused Sadanand @ Pachua was apprehended at instance of accused Kamal and accused Sadanand @ Pachua got recovered one mobile phone, one golden colour ring kept in brown purse and thereby both accused committed offences punishable U/s 380/454/411/34 IPC.
2. On the basis of material filed along with the charge-sheet, charge u/s 380/454/411/34 IPC was framed against accused Kamal and charge u/s 411/34 IPC was framed against accused Sadanand @ Pachua vide order dt. 15.09.2022 to which they pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 06 witnesses.
4. PW1 Ms. Pooja deposed that on 05.02.2022, when she came back to her house at around 04:30 pm , she found that the latch of front door of the house was broken and on checking inside, she found gold articles i.e. two rings, two pair of earings, one jhumka, one locket, one nose ring and one mobile phone make POCO C3 missing upon which she gave complaint Ex. PW-1/A. She E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 2 of 10 proved the electricity bill of the house Ex. PW-1/B, photocopy of the mobile bill Mark PW-1/C, TIP proceedings Ex. PW-1/D and photographs of mobile phone and gold ring Ex. P-1 to Ex. P-2. She stated that she cannot identify the accused as the theft was committed in her absence. She was duly cross-examined on behalf of both accused persons. Thereafter, she was again examined on an application u/s 311 Cr.P.C and identified her house from photograph Ex.PW6/C and identified the gate of her house in CCTV footage Ex.PX1.
5. PW2 Ct. Narender Yadav deposed that on 16.02.2022, he joined investigation with IO HC Ram Babu who recorded disclosure statement of accused Sadanand @ Pachua Ex. PW-2/A, arrested the accused vide Ex. PW-2/B and conducted his personal search memo Ex. PW-2/C. He further deposed that the accused Sadanand @ Pachua got recovered the stolen mobile phone and a brown coloured purse containing a golden colour ring from his house during his PC remand which was seized vide seizure memo Ex. PW-2/D. He identified the accused correctly. He was duly examined by Ld. Counsel for both accused.
6. PW3 HC Tara Chand deposed that he joined investigation with IO SI Kiran Pal in FIR no. 163/22 PS Sarai Rohilla and that on 08.02.2022, accused Kamal was apprehended in said FIR who disclosed about his involvement in this present matter which was recorded as disclosure statement Ex. PW-3/D. He proved the site plan Ex. PW-3/A, arrest memo Ex. PW-3/B and personal search memo Ex. PW-3/C, all prepared in FIR no. 163/22 PS Sarai Rohilla. He identified the accused correctly. He was duly examined by Ld. Counsel for both accused.
7. PW4 SI S.K. Jha deposed that on 16.02.2022, he obtained one day E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 3 of 10 PC remand of Sadanand @ Pachua. He identified the accused correctly. He was duly examined by Ld. Counsel for both accused.
8. PW5 HC Ram Babu deposed that on 16.02.2022, he arrested and personally searched accused Sadanand @ Pachua vide memos Ex. PW-2/B and Ex. PW-2/C and recorded his disclosure statement Ex. PW-2/A. He further deposed that the accused Sadanand @ Pachua got recovered the stolen mobile phone and a brown coloured purse containing a golden colour ring from his house during his PC remand which was seized vide seizure memo Ex. PW-2/D. He further deposed that on 09.02.2022, he joined investigation with IO HC Sandeep who was informed by HC Tarachand regarding disclosure made by accused Kamal in FIR no. 163/22 PS Sarai Rohilla regarding his involvement in the present matter. He proved the arrest memo of accused Kamal Ex. PW-5/A, personal search memo Ex. PW-5/B, his disclosure statement Ex. PW-5/C and seizure memo of brown colored blanket (Ex. P-5) Ex. PW-5/D. He identified the accused correctly. He was duly examined by Ld. Counsel for both accused.
9. PW6 HC Sandeep deposed that on 05.02.2022, he recorded the statement of complainant Ex. PW-1/A and prepared site plan Ex. PW-6/A . He further deposed regarding arrest of accused Kamal in the present matter on the same lines as deposed by PW-5. He proved the finger print expert report Ex. PW-6/B and the screenshots of clippings of CCTV footage Mark PW-6/C. He identified the accused correctly. He was duly examined by Ld. Counsel for both accused. Thereafter he was again examined on an application u/s 311 Cr.P.C and proved the certificate u/s 65B Indian Evidence Act Ex.PW6/D which was furnished alongwith CCTV footage of place of incident.
E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 4 of 10
10. Thereafter, PE was closed and joint statement of both accused persons were recorded u/s 313 r/w 281 Cr.P.C on 22.06.2023 and 20.09.2023 wherein they denied the veracity of the testimony of the prosecution witnesses and stated that they have been falsely implicated. The accused persons did not opt to lead any defence evidence.
11. Final arguments were heard and record has been perused. It is stated by Counsels for accused persons that the accused persons have been falsely implicated in the present matter. It has been argued by Ld. Counsel for Sadanand that no independent witness was present at the time of recovery or that no departure or arrival entry was made. It has been further argued that CCTV footage was not seized and no recovery was made from Kamal. It has been further argued that husband of the complainant did not give his finger prints despite notices. On the other hand, Ld. APP for the State has argued that the evidence on record is sufficient to prove the guilt of the accused persons beyond reasonable doubt. Hence, it is prayed that accused persons be convicted.
12. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the 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'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 5 of 10 palpably false that burden does not become any less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
13. In the present case, the allegations against accused Kamal are that he trespassed in the house of the complainant and committed theft of her mobile phone and some gold jewellery. Perusal of record shows that the CCTV footage Ex.PX1 of the place of incident is on record in which one person wrapped in brown coloured blanket can be seen entering a house. The complainant / PW1 has identified the gate of her house in which the above mentioned person entered from the said footage. The fact that the said person is wearing a cap and using a blanket raises a doubt that the said person is the one who committed the offence in question as no sane person will use cap and blanket in the month of May. It is pertinent to note that the said brown coloured blanket was later on recovered at the instance of accused Kamal on 09.02.2022 i.e within four days of the incident of theft. The recovery of the said blanket has been duly proved by PW5 HC Ram Babu.
14. The other incriminating evidence against the accused is that as per finger print report dt. 19.01.2023 Ex.PW6/B, the chance prints that were lifted from the spot of incident by the crime team matched with the specimen finger prints of accused Kamal. The said report has not been disputed by accused Kamal neither any explanation has been given as to how his finger prints came at the spot.
E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 6 of 10
15. In view of the above discussion, this court is of the opinion that the prosecution has proved the guilt of accused Kamal beyond reasonable doubt. Accordingly, accused Kamal is convicted u/s 380/454 IPC.
16. With respect to the recovery of mobile phone and gold ring from the possession of accused Sadanand, it is pertinent to note that no independent witness has been joined by the police officials. It is necessary to deal with the question of non-joining of independent witness during investigation. In this regard, the position of law is clear, laid down by superior courts from time to time. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
'It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well- settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 7 of 10 associate some independent witnesses with the search and strictly comply with these provisions.' (emphasis supplied).
17. It is a settled proposition of law that Sub-section 4 to Sec. 100 of Cr.P.C. is a directory provision however, the explanation of non-joining of independent witness should also be plausible. In nearly each and every case, a general explanation is given that no public witness volunteered to join the search/investigation and it appears that even the "directory" provision has been made nugatory. Such a vital provision cannot be made a dead letter in the statute book as it is intended to curb any false recovery.
18. No cogent explanation has been put forth by the prosecution for non-joining of independent witness. This court cannot lose sight of the fact that the recovery was affected from a public area. In such a situation, it was incumbent on part of recovery witnesses and IO to make efforts to join any independent witness. At-least one of the residents of the locality or passerby could have been joined in the investigation to witness the alleged recovery which is alleged to have been made from a public place during morning. There is nothing on record to reflect that any sincere attempt was made by recovery witnesses and IO to join any of them in the investigation. The reluctance of public persons to join an independent witness is rather strange. There was sufficient time with the IO to at-least note down the names of the persons who had refused to join the investigation. No notice whatsoever, was given to the public persons at the spot either to join the investigation. This creates a doubt on the very recovery of mobile phone and ring from the accused person Sadanand. In my considered opinion, it would be highly unsafe to record the finding of guilt against the accused Sadanand on the basis of testimony of police witnesses.
E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 8 of 10
19. It is correct that corroboration from a public witness is not essential but if a case is entirely based on the statements of the police officials, despite availability of public witnesses, the Court is put to a caution. In case titled as Roop Chand Vs. State of Haryana reported as CC Cases 3 (HC), it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an after thought and liable to be rejected.
20. Further, in the case of Hem Raj Vs. State of Haryana AIR 2005 SC 2110, it has been observed that:-
"The fact that no independent witness 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 know of things form the beginning was not examined by the prosecution. None examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witness 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."
21. In the case of Massa Singh Vs. State of Punjab 2000(2)C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under:-
"The recovery has been effected from a public place. The investigating officer could have taken the trouble to associate an independent witness to get the attestation of E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 9 of 10 such independent witness regarding the authenticity of the investigating conducted by him. This aspect of the case has not been properly appreciated by the court below".
22. In the cases of Gurbel Singh Vs. State of Punjab 1991 Crl. Rev.No.504(P&H) and Dhanpat Vs. State of Punjab 2000(1) CC Cases HC 52 it has been held that non joining of independent witnesses is fatal to the prosecution case & accused is entitled to benefit of doubt.
23. In such cases, the Court must see that testimonies of all police witnesses are credible, in sync with each other and the circumstantial facts. However, in the present matter all the prosecution witnesses have admitted that no notice was served to any of the public witnesses to join investigation. Further all the witnesses have failed to state the name of any such public person who was asked by them to join investigation.
24. Accordingly, in view of aforesaid observations, the prosecution has failed to prove its case against the accused Sadanand. Therefore, accused Sadanand is acquitted for the offences u/s 411/34 IPC.
Digitally signed by NEHA NEHA MITTAL
MITTAL Date:
2023.10.06
18:01:18 +0530
PRONOUNCED IN THE OPEN COURT (NEHA MITTAL)
TODAY ON 06th OCTOBER 2023 MM-04 (CENTRAL),
DELHI
E.FIR No.000099/2022 State Vs. Kamal & Ors. Page No. 10 of 10