Delhi District Court
State vs . Chetan Kumar Etc. on 6 October, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. CHETAN KUMAR ETC.
FIR No. 249/2010
PS: MOTI NAGAR
U/S: 356/379/411/34 IPC
JUDGMENT
Sr. no. of the case : 317/2/11
Unique Case ID no. : 02401R0351322011
Date of commission of offence : 05.08.2010
Date of institution of the case : 02.08.2011
Name of the complainant : Sh. Mohd. Kavi
Name of accused and address : 1). Chetan Kumar
S/o Sh. Jugal Kishor
R/o H.No.269, ESI Colony,
Basai Darapur, Moti Nagar,
Delhi
2). Bharat Kumar Soni
S/o Sh. Dashrath Pd. Soni
R/o H.No. WZ-103, Basai
Dara Pur, Moti Nagar, Delhi
Offence complained of or proved : U/s 356/379/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date reserved for judgment : 29.09.2015
Date of judgment : 06.10.2015
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS:
1. Brief facts of the case are that on 05.08.2010 at about 10:15 PM in front of Asha Auto Mobile, Nazafgarh road, Delhi, both the accused persons were riding a motorcycle bearing no.DL-4SND-2609, the pillion rider of the two i.e. accused Bharat Saini snatched a mobile from the hand FIR No. 249/2010, PS Moti Nagar Page 1/13 of complainant Mohd. Kavi. After snatching the mobile, the accused persons fled away from the spot, however, a friend of the complainant namely Sh. Hansraj came at the spot on a motorcycle. Thereafter, complainant and his friend chased the accused persons. Accused persons entered ESI Colony and parked their motorcycle in the street.
Thereafter, the complainant called at 100 number, police came at the spot. After enquiry police got address of the owner of the motorcycle and reached his house, where accused Chetan met the police officials. Accused Chetan also called another accused Bharat at his house. Mobile of the complainant was recovered from accused Chetan. Accordingly, after the investigation police filed the present charge sheet against both the accused persons.
2. Complete set of copies were supplied to the accused persons. After hearing arguments, charge framed against the accused persons for the offences punishable U/s 356/379/411/34 IPC, to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses:-
4. PW1 Mohd. Kavi stated that he does not remember the date of incident but it was two years ago in the month of August. On that day, at about 09:00-09:30 PM, he was taking a walk on the Nazafgarh Road after dinner and was going through the message box in his mobile phone. He was having mobile phone of Longtell Company. It is stated that two persons came on motorcycle and snatched his mobile phone. They were wearing helmets covering their complete face. It is stated that he had seen the registration number of the motorcycle but he cannot recollect the same today. It is stated that his friend Hansraj was also passing from there on his motorcycle and he alongwith his friend chased the snatchers. When they reached in ESI Colony, they noticed the motorcycle of the snatchers. They called police at 100 number. Police took them and bike to police station. It is stated that police FIR No. 249/2010, PS Moti Nagar Page 2/13 verified the address of the owner of the motorcycle, it was found to be of ESI Colony. It is stated that he does not remember the number today due to passage of time. It is stated that he and his friend accompanied the police official to the house of the registered owner. The name of registered owner was revealed as Chetan. This witness identified the accused Bharat Soni as Chetan (i.e. wrongly identified). It is stated that on the same day their mobile was recovered but he does not know where it was recovered. It is stated that police had recorded his statement Ex.PW2/A. It is stated that he got released his phone on superdari, the phone is Ex.P1. This witness was cross-examined by Ld. APP for State after taking permission from the Court. During cross- examination by Ld. APP, it is stated by him that they had reached ESI Colony while chasing the snatchers. It is stated by him that in the ESI Colony while they were chasing the snatchers they were about 100-150 meters from them. It is accepted by him that snatchers had fled away within their sight after leaving the motorcycle there. He could not recollect that motorcycle of snatchers was bearing no.DL-4SND-2609. It is stated by him that it is possible that the name of registered owner of motorcycle was discovered as Jugal Kishor R/o 269, ESI Colony. It is accepted by him that he had identified both the accused persons present in the Court as the persons riding on the motorcycle who had snatched his phone. He accepted that the pillion rider had snatched the phone. He denied the suggestion that accused Bharat Saini had snatched the phone. It is accepted by him that he had told to police that the driver of the motorcycle was of complexion (sanwla) and his pillion rider was wheatish. He accepted that he had seen faces of those snatchers. He further accepted that he accompanied police officials to the house of registered owner of motorcycle used in the commission of offence. He denied the suggestion that he is deposing falsely that accused Bharat Saini is not the person who snatched his phone. It is accepted by him that he had identified both the accused persons present in the Court as snatchers in the house of registered owner. It is further accepted by him that his mobile phone was recovered from FIR No. 249/2010, PS Moti Nagar Page 3/13 possession of accused Chetan. He further accepted that it is correct that the phone was seized by the police vide seizure memo Ex.PW1/B (earlier Mark A). He accepted that the motorcycle used in the commission of offence was seized by police vide memo Ex.PW1/C. He accepted that accused persons were arrested in his presence. This witness exhibited arrest memo of Chetan Kumar as Ex.PW1/D. In his cross-examination on behalf of accused persons, it is stated by him that his friend reached the spot within 5 minutes. It is stated by him that after about one kilometer, they found the motorcycle of the accused persons parked in ESI Colony. It is stated that his friend made a call at 100 number and police reached the spot within 10-15 minutes. It is stated that police seized the motorcycle and took the same to PS Moti Nagar. It is stated that no writing work was done at the spot from where the motorcycle was recovered. It is stated by this witness that writing work was conducted at the police station. It is stated that he left the police station at 04:00 AM. It is stated that after two days, he was again called at the police station. It is stated that no documents was signed by him in the police station, however, he was informed that his mobile has been recovered. It is accepted by this witness that the mobile phone was not recovered in his presence.
5. PW2 Sh. Hans Raj stated that he does not remember the date, month or year of the incident. It was about 2 years ago at about 10:30 PM, his friend Mr. Kavi was taking a walk on the main road near their houses, while taking the walk he was talking on his mobile phone. In the meanwhile, both the accused persons present in the Court (this witness correctly identified both the accused persons) came on motorcycle and one of them had snatched the mobile phone from his friend Mr. Kavi. It is stated by him that he had not actually seen snatching the phone as he had passed by that side on his motorcycle. He was stopped by his friend who informed him about snatching of the phone. They chased the accused person on his motorcycle. The accused persons were driving the motorcycle at very fast speed and had taken turn towards ESI Hospital through the narrow lanes. At one FIR No. 249/2010, PS Moti Nagar Page 4/13 time they had seen the accused persons near ESI Gate and they had again resumed their chase. They were likely to apprehend the accused persons, unfortunately one child came in front of his motorcycle compelling him to apply brakes. This led the accused persons to get away from their sight and reach. The accused persons had gone in the interior lanes and while chasing them they noticed that motorcycle of accused persons was parked outside a house. It is stated that they searched for the accused persons but could not find them. Thereafter, they called at 100 number, police reached there. Police seized that motorcycle. Police had traced the address of the owner of the motorcycle. It is stated by him that he does not remember the number of the motorcycle used by the accused persons. It is stated by him that the address so traced was situated in ESI Colony, however, he could not recollect the house number. It is stated that they accompanied the police to that house where accused Chetan was found, he was apprehended by the police. The other accused namely Laxman was also apprehended at the instance of accused Chetan through his brother. On conducting the search of the accused persons, the mobile phone Ex.P1 was recovered from their possession. In his cross- examination, it is stated by him that he reached the place within a minute after snatching. It is stated by him that accused persons were not wearing helmets. It is stated by him that he left the police station at about 12:45 AM.
6. PW3 HC Hukum Chand was the Duty Officer, who exhibited on record copy of FIR as Ex.PW3/A (OSR). It is stated by him that tehrir was received by him at 02:40 AM. In his cross-examination, it is stated by him that information regarding the case reached the police station at 11:40 PM.
7. PW4 Ct. Batasi Lal stated that on 05.08.2010 he alongwith SI Kamal Kohli was on emergency duty from 08:00 PM to 08:00 AM. On that day, at about 10:15 PM, one DD entry no. 38A was received at PS regarding snatching of mobile phone near Asha Auto Workshop at Najafgarh Road, Moti Nagar. Thereafter, they also came to know that the complainant had FIR No. 249/2010, PS Moti Nagar Page 5/13 chased the accused from the above place to ESI Colony Basai Darapur, Delhi. Thereafter, they reached at ESI Colony Basai Darapur, Delhi and met with complainant. Complainant told them that they chased the accused persons from Asha Auto Workshop at Najafgarh Road, Moti Nagar to that place and the accused persons had undergone after leaving their motorcycle bearing registration no. DL-4SND-2609 (Bajaj Discover). Thereafter, IO/SI confirmed name of the registered owner of the said motorcycle from the traffic control room. The said motorcycle was found registered in the name of Jugal Kishore R/o House No. 269, ESI Colony Basai Darapur, Delhi. The complainant pointed out them that the accused had gone in one flat. Thereafter, at the instance of the complainant, they reached at the said flat alongwith the complainant. Thereafter, two boys were found in that flat and complainant identified both boys as snatcher of his mobile phone. IO interrogated the accused persons and casual search was also taken in the presence of this witness. During casual search, two mobile phones were recovered from the possession of the accused persons. Complainant identified his mobile phone recovered from the accused persons. IO recorded the statement of the complainant Ex.PW1/A and prepared rukka Ex.PW4/A. It is stated that rukka was handed over to him for the registration of FIR. Accordingly, this witness reached the PS and rukka was handed over to DO for registration of FIR. Duty officer handed over to this witness copy of FIR and original rukka. It is stated that thereafter he came back to the spot (flat) with copy of FIR and original rukka and the same were handed over to IO. IO prepared two seizure memos Ex.PW1/B and Ex.PW4/B of the recovered mobile phones. IO prepared seizure memo Ex. PW1/C of the said motorcycle bearing no. DL-4SND-2609. It is stated that IO also prepared site plan in his presence. IO arrested the accused persons vide arrest memos Ex.PW1/D and Ex.PW4/C. Personal search memo of the accused persons also got conducted ivide memos Ex.PW4/D and PW4/E. Both the accused persons were got medically examined in DDU hospital and thereafter locked up in the Police Station, Moti Nagar. This witness correctly identified both the accused persons. In his cross-examination, it is stated by him that complainant not informed them about the description of the accused FIR No. 249/2010, PS Moti Nagar Page 6/13 persons.
8. PW5 SI Kamal Kohli stated that on 05.08.2010, he was posted at PS Moti Nagar as Probation Sub-Inspector. On that day, on receipt of DD Entry No. 38A regarding snatching of mobile phone, he alongwith Ct. Batasi Lal reached at ESI Colony Main Gate and met with complainant Mohd. Kavi and his friend namely Hansraj. It is stated that he interrogated the said complainant, who disclosed the mode and manner of snatching of his mobile phone. It is stated by him that he recorded the statement of Mohd. Kavi Ex.PW1/A. In the statement, complainant disclosed that he was a resident of Luhar Colony near Moti Nagar and when he was walking through main road in front of Asha Auto Mobiles, immediately two person came from his back side on one motorcycle and snatched his mobile phone from his hand and ran away. The said incident was seen by his friend Hansraj who was also going towards that road on his motorcycle. Thereafter, the complainant further disclosed that he alongwith Hansraj chased the said accused persons till they reached at ESI hospital colony, Basai Darapur and stopped their motorcycle and fled away. It is stated that thereafter, they all reached at the place where the said offending vehicle was standing. It is stated that he enquired about the registered owner of the said offending motorcycle through Traffic Inquiry Number and came to know that the said offending vehicle was registered in the name of one Jugal Kisore of ESI Colony R/o H.No. 269. Thereafter, they reached at H.No. 269 and met with Jugal Kisore and enquired about the offending vehicle bearing DL-4SND-2609 (red and black discover 135 cc Bajaj). Jugal Kishore informed them that the said offending vehicle was taken by his son namely Chetan. Chetan was also present in the said house. Chetan was interrogated by him but initially he did not support the investigation. However, after some time, he admitted his guilt as complainant Mohd. Kavi identified him as the accused. The other co-accused was also hidden outside the said house in hut make of wood. Mohd. Kavi also identified him as co-accused in the present case. On casual search of accused Chetan, mobile phone of complainant was got recovered from FIR No. 249/2010, PS Moti Nagar Page 7/13 his possession. Complainant Mohd. Kavi identified his mobile which was recovered from the possession of accused Chetan. The name of other co-accused was Bharat and on his casual search two mobile phones were also got recovered from his possession. It is stated that he seized the case property i.e. mobile phone of complainant vide seizure memo Ex.PW1/B. The other two recovered mobile phones were also seized U/s 102 Cr.P.C. vide memo Ex.PW4/B. It is stated that the offending vehicle was also seized by him vide memo Ex.PW1/C. It is stated that he prepared rukka Ex.PW4/A and handed over the same to Ct. Batasi Lal, who went to the PS, got the case registered and returned at the spot alongwith copy of FIR and original rukka and handed over the same to him. It is stated that he prepared site Ex.PW5/A at the instance of complainant. Accused persons were arrested vide memos Ex.PW1/C and PW1/D. It is stated that he took personal search of accused persons vide memos Ex.PW4/D and PW4/E. Accused persons were got medically examined and locked in the police station. The case property was deposited in the Malkhana. It is stated that he recorded statement of witness. This witness correctly identified both the accused persons. In his cross-examination, it is stated by him that he received the DD entry no.38 A at about 12:00 mid night. It is stated by him that he recorded statement of the complainant at the spot at about 11:30 PM. It is stated by him that mobile was already recovered prior to recording statement of the complainant. It is stated by him that he left the spot at about 11:45 PM. It is stated by him that he came at the police station at about 12:30 mid night.
9. No other witness was left to be examined hence, PE was closed.
THE DEFENCE :
10. Statement of accused persons recorded U/s 313 Cr.P.C, wherein they pleaded innocence and stated that they have been falsely implicated in the present case. Accused persons opted not to lead defence evidence.
FIR No. 249/2010, PS Moti Nagar Page 8/13 THE ARGUMENTS:
11. Ld. APP for state has argued that witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section U/s 356/379/411/34 IPC is proved beyond reasonable doubt against both the accused persons.
12. On the other hand, Ld. defence counsel has stated that there is no legally sustainable evidence against the accused persons. It is also stated that nothing was recovered from the accused persons and they have been falsely implicated in the present case. It is stated by the Ld. counsel that testimony of PW1 Mohd. Kavi and PW2 Hansraj are having too many contradictions and the same are not reliable.
THE FINDINGS:
Offence U/s 356/379/411/34 IPC:
13. Arguments adduced by Ld. APP for State and Ld. defence counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
14. In order to prove its case, the prosecution has to prove that:-
a). That the accused persons had snatched the mobile from the complainant.
b). That the stolen mobile was recovered from the possession of accused Chetan immediately after snatching.
15. In the present matter, there are two eye witnesses of the incident I.e PW1 Mohd. Kavi and PW2 Hansraj. Prima facie from the testimonies of these witnesses, it appears that accused persons snatched the mobile from complainant PW1 Mohd. Kavi. Further, the mobile phone of PW1 Mohd. Kavi was recovered from the accused Chetan, however, from a closer scrutiny of the testimonies of these two witnesses as well as the testimonies of police witnesses, it appears that the case of the prosecution has not been proved beyond reasonable doubt. It appears that there are a lot of contradictions in the case of the prosecution and FIR No. 249/2010, PS Moti Nagar Page 9/13 the story of prosecution is not truthful. Following are the reasons for the same:-
a). From the testimony of PW1, it is apparent that at the time of alleged snatching he was alone and PW2 Hansraj was not present there. PW2 Hansraj came after the alleged snatching had taken place. It is categorically stated by PW1 Mohd. Kavi in his examination-in-chief that the snatchers were wearing helmets covering their complete face.
However, in his cross-examination by Ld. APP for State, he identified both the accused persons as snatchers. However, this witness pointed out towards accused Bharat Soni and stated that he is accused Chetan, who was the owner of motorcycle. Thus, this witness incorrectly identified the accused in the Court. At one place it is stated by him that accused persons were wearing helmets and he could not see their faces, however, on the same day when a leading question was asked by Ld. APP, he accepted that both the accused persons were the snatchers. Thus this witness does not appear to be reliable. In these circumstances, identity of the accused persons as the snatchers cannot be held to be proved beyond reasonable doubt.
b). It is stated by PW1 Mohd. Kavi and PW2 Hansraj that during the chase the accused persons get away from their sight and reach, however, thereafter they saw motorcycle of the accused persons parked in a street. Though it is stated by PW1 and PW2 that they called the police. Police came at the spot and had taken away the motorcycle to the police station where they made investigation regarding ownership of that motorcycle and again came back ESI Colony. On the other hand, it is stated by the police officials that on receiving the DD no.38A, they reached the spot and at the very spot they recorded statement of the complainant after recovery of the mobile as the complainant had seen the accused persons entering into a flat. On the other hand, complainant PW1 Mohd. Kavi and PW2 Hansraj nowhere stated that they had seen the accused persons entering any flat. Thus there are apparent contradictions in the case of the prosecution regarding manner of the arrest of the accused persons.
FIR No. 249/2010, PS Moti Nagar Page 10/13
c). It is alleged by the prosecution that the case property i.e. the mobile phone of PW1 Mohd. Kavi was recovered from accused Chetan, that too prior to preparation of tehrir. However, it is stated by PW1 Mohd. Kavi in his examination-in-chief that he does not know where his mobile was recovered, however, in his cross-examination by Ld. APP for State, he admitted that his mobile phone was recovered from possession of accused Chetan but again in his cross-examination it is admitted by him that his mobile phone was not recovered in his presence. As per the recovery memo, PW1 Mohd. Kavi is the only public witness of recovery of the mobile phone, however, this witness is not reliable as in his examination-in-chief and cross-examination, it is stated by him that the mobile was not recovered in his presence. Further PW2 Hansraj though stated that mobile was recovered in his presence, however, he could not tell from the possession of which one of the accused the mobile was recovered as it is stated by him that on conducting search of the accused persons the mobile phone was recovered. In these circumstances, the recovery of the mobile phone from the possession of accused Chetan has not been proved beyond reasonable doubt.
d). There are a number of contradictions regarding timing of the proceedings conducted by the police. As it is stated by IO PW5 SI Kamal Kohli that he finally left the spot at about 11:45 PM and came back at the police station at 12:30 mid night, while as per the arrest memo the accused persons were arrested at 04:00 AM from their house. In the present case police received information regarding the incident at about 11:40 PM and immediately after receiving the information, police officials reached the spot despite that rukka in the present case was written and sent only at 02:30 AM. There is nothing on record to explain this delay. It is also to be noted that it is claimed by the IO PW5 SI Kamal Kohli that he left the spot at about 11:45 PM and reached the police station at 12:30 AM, in such situation how the rukka could have been written at 02:30 AM. In these circumstances, it appears that the prosecution story is not truthful and the accused persons were not arrested and recovery was not effected from them as FIR No. 249/2010, PS Moti Nagar Page 11/13 claimed by the prosecution.
e). PW1 Mohd. Kavi could not tell number of the motorcycle used by the accused persons during snatching. Even when categorical suggestion was given to him regarding registration number of the motorcycle, he could not tell if the same was the number of motorcycle used by the accused persons.
16. In view of the above stated facts and discussion, this Court is of the opinion that the accused persons could not be identified by PW1 Mohd. Kavi in the Court beyond reasonable doubt. Further, the recovery of alleged mobile phone from possession of accused Chetan has also not been proved on record beyond reasonable doubt. Further, there are discrepancies in the testimonies of police and public witnesses.
17. At this stage, it would be fruitful to remember that it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
18. In view of the above stated facts and discussion, this Court is of the considered opinion that prosecution has failed to prove guilt of accused persons namely Chetan Kumar and Bharat Kumar Soni beyond reasonable doubt. Accordingly it is a fit case in which benefit of doubt must be given to accused persons, which is accordingly given. Hence, accused persons namely Chetan Kumar and Bharat Kumar Soni are hereby acquitted of offence U/s 356/379/411/34 of IPC.
19. Accused persons have furnished fresh bail/surety bonds in terms of FIR No. 249/2010, PS Moti Nagar Page 12/13 Section 437-A Cr.P.C. The same have been accepted. File be consigned to record room.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 06.10.2015 MM-04 (WEST)/DELHI
Containing 13 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR)
MM-04 (WEST)/DELHI
FIR No. 249/2010, PS Moti Nagar Page 13/13