Delhi District Court
State vs . Naveen Kumar Etc. on 1 March, 2011
IN THE COURT OF SH. A.K.AGRAWAL, MM(East)
KARKARDOOMA COURTS, DELHI
FIR No. 536/1997
U/S 356/371/34 IPC
PS: Shakarpur
STATE VS. NAVEEN KUMAR ETC.
JUDGMENT
a. Serial number of the case : 650/09 b. Date of commission of the offence : 16.10.1997 c. Name of the complainant : Smt. Usha Sharma
d. Name of the accused persons : 1. Rajesh Vadhiyal their parentage and addresses s/o Sh. Anand Swaroop Vadhiyal, r/o 43, Shyam Enclave, Dir Pur, Najafgarh, Delhi.
2. Naveen Kumar s/o Late Jawahar Singh, r/o X/3540, Gali No. 3, Shanti Mohalla, Gandhi Nagar, Dehli.
3. Vijender Kumar Jain s/o Late Hukum Chand r/o Main Road, Khekra, District Bagpat, U.P. e. Plea of the accused : Pleaded not guilty.
f. Offence complained/proved : u/s 356/371/34 IPC FIR No. 536/1997 Page No.1 of 13 g. Final order : ACQUITTED h. Date of Institution : 25.06.1998 i. Judgment reserved on : 22.02.2011 j. Judgment delivered on : 01.03.2011 Brief reasons for the decision of the case:
1. In brief the story of the prosecution is that on 16.10.1997, at about 1.20 p.m., at opposite House No. F34 B, Mangal Bazaar, Delhi within the jurisdiction of PS Shakarpur, accused Rajesh Vadiyal and accused Naveen Kumar forcibly snatched away the golden neck chain of complainant Usha Verma and fled away. Accordingly, an FIR was registered against unknown accused persons u/s 356/379/34 IPC on 16.10.1997. Subsequently, accused Rajesh Vadiyal and Naveen Kumar were later on arrested in another case registered vide FIR No. 64/98 PS Shakarpur wherein, they made disclosure statements before police regarding their involvement in the present case. Further, on the basis of their disclosure statements, the police apprehended and arrested another accused Vijender Jain. The said golden chain along with four other golden chains were ultimately recovered allegedly from the possession of coaccused Vijender Jain on 04.04.1998 from his shop "Ahinsa Jwellers" located at Raghav Pura, Gandhi Nagar, FIR No. 536/1997 Page No.2 of 13 Delhi. After completion of investigation, challan was filed against all the accused persons u/s 356/379/411/34 IPC. Cognizance was taken accordingly.
2. Thereafter, on the basis of available evidence on 22.08.1998, charge was framed u/s 356/379/34 IPC against accused Rajesh Vadhiyal and Naveen Kumar and u/s 411 IPC against accused Vijender Jain to which all of them pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined ten witnesses in its support.
4. PW1 is Duty Officer SI Kusum who registered the present FIR.
Copy of FIR is Ex. PW1/A.
5. PW2 is complainant Usha Verma who stated that on 16.10.1996, at 12.45 P.M., she was returning from Laxmi Nagar along with her friend Seema, when they reached at Mangal Bazaar, two persons came on a scooter and snatched her golden neck chain from behind. Thereafter, both the accused fled away. However, the witness failed to identify the accused persons in the court. Her FIR No. 536/1997 Page No.3 of 13 compliant to the police is Ex. PW2/A. The recovered chain after identification is Ex. P1.
6. PW3 is Seema who is friend of the complainant PW2 and was accompanying the complainant at the time of incident. Her testimony is the same lines as that of PW2 and the same is not repeated again for sake of brevity. This witness also failed to identify the accused persons.
7. PW4 is SI Sanjay Bhardwaj who stated that on 16.10.1996, he along with Ct. Manoj Kumar reached the place of incident and recorded the statement of complainant PW1, which is Ex. PW 2/A. He made endorsement on rukka vide Ex. PW4/A and got the case registered through Ct. Manoj Kumar. He also prepared the site plan at the instance of the complainant, vide Ex. PW4/B.
8. PW5 is ASI Chander Pal who carried out further investigation of this case. He stated that the accused persons were arrested in another case bearing FIR No. 64/98 PS Shakarpur and he thereafter, formally arrested the accused Naveen who made a disclosure statement Ex. PW5/A and on the basis of his disclosure statement, coaccused Rajesh was also arrested. Accused Rajesh FIR No. 536/1997 Page No.4 of 13 also made a disclosure statement vide Ex. PW5/B. Both the accused then took them to Ahinsa Jwellers, the shop of coaccused Vijender. At their instance, accused Vijender was arrested and he produced five golden chains from almirah of his shop which were seized vide seizure memo Ex. PW5/C. Out of five chains, one chain was that of the complainant PW2 Usha. The pointing out memos Ex. PW5/D & E were prepared at the instance of accused Rajesh and Naveen respectively. The witness further deposed that remaining investigation of this case was carried by another IO.
9. PW6 is SI Virender Kadyan who has stated that on 04.04.98, ASI Chander Pal arrested the accused Naveen and Rajesh in FIR 64/98 wherein the accused persons made disclosure about their involvement in the present case. Thereafter, one Smt. Sheela and her husband S.P. Singh joined them in investigation. Both accused (in muffled face) took them to the shop of accused Vijender Jain. At the shop accused Vijender was interrogated and upon interrogation he produced five golden chains which were seized by IO/ASI Chander Pal. The witness has identified the accused persons as well as the case property Ex.P1.
FIR No. 536/1997 Page No.5 of 13
10. PW7 is HC Ram Bir Singh who joined the investigation along with ASI Chander Pal and SI Virender Kadiyan. He stated that a secret informer told SI Virender Kadiyan about one Ajab Singh, brother of accused Naveen. He along with SI Virender Kadiyan reached at the house of Ajab Singh and on his pointing out, accused Naveen was apprehended. The accused Naveen was arrested vide Ex. PW7/A and on pointing out of accused Naveen, coaccused Rajesh was arrested vide memo Ex. PW7/B. Both the accused made disclosure statement. Then alongwith other police officials, the witness went to shop of accused Vijender, where accused Vijender was also arrested and the case property namely the golden chain was seized by IO. He has identified the case property Ex. P1.
11. PW8 is S.P. Singh who stated that a similar incident of snatching chain had occurred with his wife on 26.08.97. After about six months, he was called in PS and he recognized the chain in the PS and got it released on superdari. He has identified the case property.
12. PW9 is Sheela Singh, who has stated that on 26.08.1997, her own FIR No. 536/1997 Page No.6 of 13 golden chain was snatched by accused persons. Then on 04.04.1998, police persons came to her house and told that the accused persons and the chains have been found. She was called at Priyadarshini Vihar Chowki where she identified the accused Rajesh and Naveen and also recognized her chain.
13. PW10 is Ms. Nivedita, ARC. She is the then M.M. in whose presence the TIP of case property was conducted, wherein the complainant Usha Verma had correctly identified her chain. TIP proceedings is Ex. PW10/A.
14. Thereafter, prosecution evidence was closed. After that, all accused were examined u/s 313 Cr.P.C. r/w Section 281 Cr.P.C. on 29.10.2010 and all the incriminating evidence were put to all of them. Accused Rajesh and Naveen denied snatching chain from the complainant. They also denied making any disclosure statement to police official. Both of them further stated that they were taken to PS by some police officials and were beaten in the PS and made to sign some blank papers and thereafter, they were falsely implicated in this case.
15. On the other hand, accused Vijender Jain has denied that any FIR No. 536/1997 Page No.7 of 13 recovery of gold chains was effected from him or the fact that he has made any disclosure statement to police official. As per his version, he was running a hand loom factory and the jewellery shop was being run by his nephew Anurag. At the instance of police officials, he had to open his locker in Jain Cooperative Bank and take out some gold ornaments which he got melted. The melted gold was taken away by the police and he was subsequently falsely implicated in this case.
16. Two defence witnesses were produced on behalf of the accused person in DE.
17. DW1 is Sanjeev Tomar from Jain Cooperative Bank, who brought the entry register dated 04.04.1998 from the Bank. He stated that the accused Vijender is having a locker No. 221 in the bank since 1998 and as per record, on date 04.04.1998, the accused Vijender operated his locker between 11.35 A.M. to 11.38 A.M. The copy of entry in the register is Ex. DW1/A. The copy of account opening form is Ex. DW1/B.
18. DW2 is Kamal Kumar, Record Keeper of Record Room Criminal, Karkdardooma Courts, who brought the case file of FIR No. FIR No. 536/1997 Page No.8 of 13 299/97 wherein, the accused persons were acquitted. The copy of entry in Goshwara register is Ex. DW2/A.
19. Thereafter, final arguments were led from both sides. It is argued by Ld. State counsel that as per the statement of witnesses and the recovery of gold chains, it is sufficiently proved that the accused Rajesh and Naveen had committed theft of chain from the complainant by using force. He further argued that since the golden chain Ex.P1 was recovered from the possession of accused Vijender in the presence of witnesses PW5, PW6 & PW7, the fact of recovery of chain is proved beyond doubt. Accordingly, he has prayed for conviction of all the accused persons.
20. On the other hand it is argued by Ld. Counsel on behalf of all the accused persons that there are material contradictions in the statement of the witnesses. As regards accused Rajesh and Naveen, he stated that there were only two eye witnesses PW2 & PW3 and both have failed to identify the accused Naveen and Rajesh and they were subsequently declared hostile by prosecution. So the allegation against the accused Rajesh and Naveen is not proved at all.
FIR No. 536/1997 Page No.9 of 13
21. As regards accused Vijender, Ld. Counsel submitted that:
(a)The recovery of golden chains never took place and the same were planted on the accused.
(b) PW8 and PW9 who are stated to be public eye witness of recovery of chains have denied their presence at the time of alleged recovery in their crossexamination.
(c ) The whole documentation was done in the PS and recovery witnesses have signed the seizure Memo at the PS itself, which is proved from the crossexamination of PW8 & 9. Accordingly he has prayed for acquittal of all the accused persons.
22. Perused evidence on record and also heard the submissions from both sides. The question before this court is whether the prosecution has been able to prove its case against all the accused persons beyond reasonable doubts or not.
23. In the present case, since the allegation against accused Rajesh and Naveen are same and the evidence is also the same, so it would be proper to consider the evidence in their case together and that of accused Vijender Jain separately.
FIR No. 536/1997 Page No.10 of 13
24. As far as evidence against accused Rajesh and Naveen is concerned, there are two eye witnesses i.e. PW2 & PW3 and both of them have failed to identify the accused persons in the court. In fact PW3 has stated that the accused person who snatched the chain were not the ones who were present in the court despite the fact that she admitted of having seen the accused persons at the time of incident. Since eye witnesses themselves could not identify the accused persons, the other evidences against them becomes inconsequential. Further, the alleged disclosure statements made by the accused persons is barred by Sec 25 and 26 of the Indian Evidence Act and cannot be read in evidence against the accused persons. So, the offence against the accused Rajesh and Naveen does not stands proved.
25. As regards the recovery of golden chain from the accused Vijender is concerned, PW5 & PW 6 have stated in their testimony that public witnesses PW8 and PW9 were both present at the time of recovery but PW8 and 9 in their crossexamination themselves categorically deny this fact. PW8 states that he was called to the PS and shown the chain after desealing the packet. PW9 says that she saw the chain for the first time in the Police chowki at FIR No. 536/1997 Page No.11 of 13 Priyadarshinin Vihar. She even stated that she had never seen accused Vijender before coming to court nor was she present when accused Vijender was arrested. Both of them also state that they did not join any raiding party of police to effect the recovery of chains nor the chain was recovered in their presence.
26. It is also noteworthy that PW7 (another police witness of recovery) makes no mention of this fact that PW8 and 9 were present at the time of recovery of chains. So, it is apparant that PW8 and PW9 did not witness any recovery from the accused Vijender. Under these circumstances it is also difficult to rely on the statements of police recovery witnesses whose evidence is full of contradictions. It is further unsafe to rely on the said Seizure memo Ex.PW5/C which appears to have been made at Police Post at Priyadarshini Vihar and bears signatures of PW8 & 9. The Hon'ble Supreme Court has held in Mousam Singh Roy and others vs. State of West Bengal, 2003 (3) JCC 1358 (SC) that "When the panch witnesses have not witnessed the actual recovery and have just been told by the IO that the article has been recovered then, such evidence is insufficient to prove the recovery."
FIR No. 536/1997 Page No.12 of 13 So, the available evidence against accused Vijender is totally unsatisfactory.
27. In view of my above said findings, the court is of the considered opinion that the accused persons cannot be convicted on the basis of evidence on record. Hence, all the accused persons are Acquitted from their respective charges. Bond of accused persons and their sureties shall be discharged after six months in view of section 437A Cr.P.C. File be consigned to Record Room. Announced in open court on Dated 01.03.2011 (A. K. AGRAWAL) MM(East)/KKD/01.03.2011 FIR No. 536/1997 Page No.13 of 13