Delhi District Court
State vs . Anshul Sharma 1 on 1 February, 2023
IN THE COURT OF Ms.MEENA CHAUHAN,
MM-08: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
JUDGMENT
FIR No. 653/14 PS : Kotwali U/s 356/379/411/34/174A IPC State v. Anshul Sharma CIS No. 288738/16 Date of Institution of case: 20.10.2014 Date when Judgment reserved: 05.01.2023 Date on which Judgment pronounced:01.02.2023 a Serial No. of the case : FIR No.: 653/2014 PS: Kotwali Date of the commission b : 28.08.2014 of the offence Name of the c : Sh. Raju s/o Jagdish Complainant Name of Accused Anshul Sharma S/o Subhash Chand d person and his : Sharma, R/o Village Tikri Khurd, PS parentage and residence Sikandar Rao, District Hathras, UP.
e Offence complained of : U/s 356/379/411/34/174A IPC Plea of the Accused f person and his : Pleaded not guilty. examination (if any) Acquitted u/s 356/379/411/34/ IPC g Final Order : &Convicted u/s 174A IPC h Order pronounced on : 01.02.2023 FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 1 BRIEF REASONS FOR DECISION:
1. In brief, the case of prosecution is that on 28.08.2014 at about 9.05 am, Opposite Main Gate of ODRS, the accused Anshul Sharma along with his associate (since not traced) in furtherance of their common intention snatched Rs. 200/- from the shirt pocket of the complainant namely Raju and the accused got apprehended subsequently on the same day near wall of Bankhandi Mandir with Rs. 200/- belonging to the complainant. On the basis of these allegations, the present FIR got registered at PS Kotwali u/s 356/379/411/34 of Indian Penal Code(hereinafter called as IPC).
2. After investigation, a charge sheet was filed against the accused.
Cognizance of offence mentioned in the charge sheet was taken and Copy of charge sheet and other documents were supplied to the accused under section 207 The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C) and thereafter, a charge under section 356/379/411/34 IPC was framed against him on 05.11.2014 to which he pleaded not guilty and claimed trial.
3. It is important here to mention that the accused was declared FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 2 proclaimed absconder during the trial and he was arrested as a proclaimed offender on 24.10.2020. Thereafter, a supplementary chargesheet punishable u/s 174A IPC was filed against the accused in the Court. Cognizance of offence u/s 174A Indian Penal Code(hereinafter called as IPC) was taken and copy was supplied to the accused. Prima facie case was made out and charge for offence u/s 174A IPC was framed against the accused on 02.06.2022 as accused failed to appear before Court despite proclamation against in terms of Section 82(1) Cr.P.C and he was declared proclaimed offender vide order dated 15.01.2019 by the court of Mr. Dinesh Kumar, then Ld. MM, Delhi in the present FIR. The charge was read over to the accused, on which he pleaded not guilty and opted for trial.
4. In support of its version, the prosecution has examined 06 (six) witnesses.
5. PW-1 Raju has deposed in his examination-in-chief that on 28.08.2014, he was going to labour chowk from Kashmiri Gate for searching some work. He was crossing the red light which was in front of the main gate of the Railway station, ODRS. Two boys came from the Chandni Chowk side and pushed him back and took out Rs. 200/- from the left side pocket of his shirt. He held himself FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 3 and tried to stop them. In the meantime, they gave a slap on face and a feast blow on his left side stomach. As he raised the alarm, the accused persons ran away towards Barkhandi Mandir. Thereafter, he made a call on the number 100 and the police came after some time. He told the whole incident to the police official on their request. He disclosed all the facts to the police and Police started searching for the accused with him. He deposed that they went towards Barkhandi Mandir and near Barkhandi Mandir, where the accused was sitting with 3 to 4 persons on the wall. He had pointed towards the accused to the police and the accused apprehended by the police. PW-1 correctly identified the accused. During the search, Rs. 200/- notes (of Rs. 100/- denomination each) were recovered from the pocket of the accused which was taken into possession vide seizure memo Ex.PW1/A. His statement was recorded Ex. PW1/B. Thereafter, the FIR was registered then accused was arrested vide arrest memo Ex. PW1/C. Personal search of the accused memo was prepared Ex.PW1/D. The disclosure statement of the accused was also recorded Ex. PW1/E. PW-1 correctly identified two notes of Rs. 100/- currency notes Ex. as P.1.
During cross-examination by Ld. LAC for the accused, PW-1 FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 4 admitted that currency notes Ex. P-1 does not bear any specific mark of identification. He deposed that he used to reside in Chabiganj ranbasera on the date of incident. He does not know whether the accused was also residing in said ranbasera or not. Voluntarily, he stated that there were about 300 persons residing in said ranbasera. Police did not prepare any document including an arrest memo at the spot and took them to the PS. Police did not inquire from other persons before him, who were sitting with the accused on the wall before apprehension. He remained at PS for about 10-15 minutes and thereafter he came back to said ranbasera. He deposed that Police had taken out Rs. 200/- from the pocket of the accused in his presence at the police station. It took 4 to 5 minutes in commission of offence and they ran away when he raised the alarm. He did not tell the police the physique of another offender. Voluntarily, he stated that he can identify another accused if produced before him. He described to the police at the police station regarding the physique of one offender i.e accused. Accused had given him some beating 3-4 days prior to the occurrence of the incident in question. He did not lodge any complaint in respect of said beating. He further denied the suggestion that no incident of robbery in question took place with him or that accused was not apprehended at his instance or that FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 5 accused was falsely planted in this case after calling him in PS from his house (ranbasera) with the connivance of police or that Rs. 200/- found in jama talashi of accused does not belongs to him or that due to said beating 3-4 days prior to date of occurrence falsely planted to the accused in this case in connivance with the police. He denied the suggestion that he was deposing falsely.
6. PW-2 HC Jitender has deposed in his examination-in-chief that on 28.08.2014 he along with SI Sombir were on emergency duty. On receiving DD No. 7A, he along with SI Sombir went to the incident spot i.e. in front of ODRS, Delhi where they met the complainant Raju who told that two boys snatched Rs. 200 from the complainant and ran towards the Ban Khandi Mandir. Thereafter, they (he, SI Sombir and complainant Raju) went towards the Ban Khandi Mandir where the complainant pointed towards a boy who was sitting beside the wall and informed that he was the one who snatched Rs.200. They apprehended him and upon a cursory search, Rs. 200 were recovered from the left pocket of the wearing lower. IO recorded the statement of complainant Ex.PW1/B. IO seized the recovered money in a white envelope and sealed it with the seal of SS. Thereafter, IO prepared the tehrir/rukka and handed over the same to him for registration of FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 6 FIR. And after the registration of FIR, he came back to the spot and handed over the copy of the FIR and original tehrir/rukka to the IO. Thereafter, IO arrested the accused and conducted personal search of accused vide memos Ex.PW1/C and Ex.PW1/D respectively. IO also prepared the seizure memo Ex.PW1/A. IO recorded the disclosure statement of accused Ex.PW1/E. Thereafter, they searched for another co-accused but could not find him. Thereafter, IO produced the accused before the court and was sent to the JC. IO recorded his statement under Section 161 Cr.P.C and discharged him from the proceedings. PW-2 correctly identified the accused and Rs.200 (100x2).
During cross-examination by Ld. LAC for the accused, PW-2 admitted that the incident spot is a crowded area and at the time of apprehension of the accused there were many public persons. He deposed that IO did not record the name and addresses of the passers by who were asked to join the investigation. IO also did not give any public notice to join the investigation. He admitted that no seal handing over memo was prepared by the IO. He admitted that IO did not put any specific mark upon seized case property. He cannot tell the serial number of notes recovered. He cannot tell whether these notes are the same which were recovered FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 7 from the accused. The complainant did not inform regarding the quarrel between the complainant and accused prior to this incident. He further denied the suggestion that the accused is falsely implicated because of prior quarrel between the accused and the complainant. He further denied that the case property was planted upon the accused and no recovery was made from the accused. He admitted that no public witness joined in the investigation. He further denied the suggestion that no proceedings were taken place at the spot that is why no public person was joined in the investigation, that no disclosure memo was prepared by the IO, that all proceedings and documentation was done while sitting at PS and that the accused was not present at the spot at the time of arrest. He further denied that he is deposing falsely.
7. PW-3 SI Narayan Singh has deposed in his examination-in-chief that on 15.01.2019, accused was declared absconder by the Hon'ble court of Sh. Dinesh Kumar, Ld. MM in the present case. On 24.10.2020, HC Sunil Kumar, PS Haus Qazi arrested the accused and was sent to JC. The court directed him to file a supplementary charge-sheet. In compliance with which he prepared and filed the charge sheet before the concerned court.
FIR No. 653/2014PS. Kotwali State Vs. Anshul Sharma 8 During cross-examination by Ld. LAC for the accused, PW-3 denied the suggestion that he was deposing falsely.
8. PW-4 Inspector Sombir Singh has deposed in his examination-
in-chief that on 28.08.2014, he was posted as Sub Inspector at PS Kotwali. On that day, he was on day emergency duty from 9:00 am to 9:00 pm. On that day DD No. 7A was entrusted to him. Thereafter, he alongwith Ct. Jitender rushed to the spot of the incident i.e. opposite the main gate of ODRS at red light., where they met a complainant namely Raju S/o Jagdish and he narrated the whole incident that 2 boys snatched his Rs. 200/- and ran away towards Bankhandi Mandir. Thereafter he along with complainant and Ct. Jitender went towards Bankhandi Mandir, where near the wall, mandir complainant pointed towards a boy as one of the two who snatched his Rs 200/- from his pocket. Thereafter, they apprehended the said boy and carried out a cursory search of the accused. On checking, Rs.200/- were recovered from the left pocket of the lower worn by the accused. On inquiry, the name of the accused was revealed as Anshul Sharma. PW-4 correctly identified the accused. The complainant correctly identified his Rs.200/- (two notes of denomination of Rs.100/- each) which were recovered from the accused. Thereafter, he recorded the statement FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 9 of the complainant Ex. PW-1/B. He seized the above said Rs. 200/- vide seizure memo Ex. PW-1/A and put them in white envelope and sealed it with the seal of SS. Thereafter, he prepared tehrir/rukka Ex. PW-4/A and handed over the same to the Ct. Jitender for registration of FIR. In the meanwhile, he prepared the site plan at the instance of the complainant Ex. PW-4/B. After some time Ct. Jitender arrived back at the spot along with original rukka and copy of FIR and handed over the same to him. Thereafter, the accused was arrested vide arrest memo Ex. PW-1/C and personal search was carried out vide search memo Ex. PW-1/D. He prepared a disclosure memo of accused Ex.PW-1/E. Thereafter, he recorded the supplementary statement of the complainant u/s 161 Cr.P.C. and he was discharged. Despite best efforts the other co-accused could not be traced. Thereafter, the accused was produced before the concerned court and was sent to JC. He recorded the statement of Ct. Jitender and he was discharged. PW-4 correctly identified Rs. 200/- (100x2) Ex. P-1.
During cross-examination by Ld. LAC for the accused, PW-4 stated that he arrived at the spot at about 9:20 am. He deposed that the spot was a crowded area and no inquiry was carried out from a public person at the spot regarding the incident as he alongwith FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 10 Ct. Jitender and Complainant went towards the place where the accused ran away after committing the said offence. Voluntarily, he deposed that they asked the public persons to join the investigations when they apprehended the accused before carrying out his cursory search but all of them refused by giving their reasonable excuses and no notice could not be served to them due to paucity of time. He cannot recall the exact distance between the incident spot and the place where we apprehended the accused. He denied the suggestion that nothing was recovered from the accused and that he is falsely implicated in this case. He cannot tell the serial number of the notes recovered. He does not know about the fact if there was any previous enmity between the complainant and the accused. He further denied the suggestion that he is deposing falsely.
9. PW-5 Ct. Om Parkash has deposed in his examination-in-chief that on 24.10.2020, he was posted as Constable at PS Hauz Qazi, Delhi. On that day, HC Sunil received information from a secret informer that the accused was declared PO on 15.01.2019, was standing in front of metro gate no. 1, Chandni chowk, Delhi and that if raided now he could be caught. He along with ASI Dharamvir Singh, ASI Narender, HC Sunil and secret informer FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 11 went to the spot. Thereafter, the secret informer pointed towards the accused and thereafter, they apprehended him. On inquiry, the name of the accused was revealed as Anshul Sharma. HC Sunil verified the accused details in the PO list and the accused was declared PO in the present case. Accused was arrested vide kalandara U/s 41.1(c) Cr.P.C. vide DD No. 54A dated 24.10.2020. Original kalandra vide DD No.54A dated 24.10.2020, PS Hauz Qazi is already on record. HC Sunil Kumar arrested accused vide memo Ex.PW6/A and carried out his personal search vide memo Ex.PW6/B. PW-5 correctly identified the accused.
During cross-examination by Ld. LAC for the accused, PW-5 stated that they reached the spot at about 11.00 am approx. The accused was arrested at about 11.30 am. He admitted that the names of SI Dharamveer and ASI Narender were not mentioned in Kalandara. Voluntarily, he deposed that the same are mentioned in DD No.54A dated 24.10.2020, PS Hauz Qazi. He denied the suggestion that he is deposing falsely.
10. PW-6 ASI Sunil Kumar has deposed in his examination-in-
chief that on 24.10.2020, he received information from secret informer that accused was declared PO vide order dated FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 12 15.01.2019 was standing in front of Metro Gate no.1, Chandni Chowk and that if raided accused could be caught. Thereafter, he along with SI Dharamvir Singh, ASI Narender, Ct. Om Parkash and a secret informer went to the spot. The secret informer pointed out towards the accused and they apprehended him at the spot. On inquiry, the name of the accused was revealed as Anshul Kumar. He verified the details of the accused in the PO list and the accused was declared PO in the present case. He arrested accused vide kalandara u/s 41.1 (c) CrPC vide DD No. 54A PS Hauz Qazi dated 24.10.2020 vide arrest memo Ex.PW6/A and carried personal search of accused vide memo Ex.PW6/B. Accused was taken to hospital for his medical examination and afterwards was produced before the Duty MM and accused was sent to judicial custody. DD No.54A Ex.PW6/C. Information about the arrest of the accused was given to the PS Kotwali. PW-6 correctly identified the accused.
During cross-examination by Ld. LAC for the accused, PW-6 stated that they reached the spot at about 11.00 am approx. He admitted that the names of SI Dharamveer and ASI Narender were not mentioned in Kalandara. Voluntarily, he stated that the same are mentioned in DD No.54A dated 24.10.2020, PS Hauz Qazi. He FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 13 denied that he is deposing falsely.
11. Vide statement of accused recorded u/s 294 Cr.P.C on 22.11.2022, the accused admitted the FIR which is Ex. A-1, endorsement Ex.A-2 and DD No. 7A dated 28.01.2014 Ex.A-3 without admitting the contents of these documents and without prejudice to his defence. Vide order dated 22.11.2022, Prosecution Evidence was closed.
12. Statement of the accused u/s 313 read with section 281 Cr.P.C was recorded in which he stated that he was innocent and had been falsely implicated in the case. With respect to allegation u/s 174 IPC, he stated that he could not appear before the court as his previous counsel informed him that his case has been disposed of. He also submitted that he did not want to lead defence evidence. Final arguments in the matter were heard.
13. During final arguments, Learned APP for the state submitted that the prosecution has proved the case against the accused beyond reasonable doubt as all the prosecution witnesses especially the eye-witness has supported its case and even the documentary evidence placed on record is cogent. He demanded FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 14 that the accused be convicted for offence u/s 356/379/411/34 IPC. Per Contra, learned LAC for the accused submitted that there are severe discrepancies in the prosecution evidence. He claimed that the testimony of eye-witness/complainant suggests that the accused and the complainant were already known to each other and due to their previous enmity, the present case is planted upon the accused. He pointed out that despite availability of independent witnesses they were not asked to be part of the investigation. He further argued that the complainant admitted during his cross-examination that recovery has been effected from the accused at PS only which falsifies all the recovery proceedings. He stated that the accused has been falsely implicated and the case against him has not been proved beyond doubt, so he be acquitted of the offence u/s 356/379/34 and also u/s 411 IPC.
POINTS FOR DETERMINATION:
14. (i) Whether the accused, on 28.082014, at about 09:05 am, Opposite Main Gate of ODRS, the accused along with his associate (since not traced) in furtherance of their common intention has used criminal force or assault to the complainant in attempting to commit theft of Rs. 200/- of the complainant?
FIR No. 653/2014PS. Kotwali State Vs. Anshul Sharma 15
(ii) Whether the accused on the same date, time and place, along with his associate (since not traced) in furtherance of their common intention, intending to take dishonestly RS. 200/- of the complainant out of the possession of the complainant without his consent, moved it in order to such taking, and thereby committed an offence punishable u/s 379/34 IPC?
(iii) Whether the accused person, on the same date and time, dishonestly retained the stolen Rs. 200/- of the complainant knowing that such property is a stolen property, and thereby committed an offence punishable u/s 411 IPC?
(iv) Whether the accused failed to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Cr.P.C?
DISCUSSION, DECISION AND REASONS THEREON:
15. I have heard, Ld. APP for the state as well as counsel for the accused and also perused the record.
16. In a criminal trial, the onus remains on the prosecution to FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 16 prove the guilt of the accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favor of the accused. Before adverting to the appreciation of evidence for deciding the present case, the applicable penal provisions are reproduced in verbatim as follow:-
Section 356. Assault or criminal force in attempt to commit theft of property carried by a person.--Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Section 411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 34 of Indian Penal Code states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 17 alone.
174A. IPC. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
17. For avoiding the repetition of evidence and overburdening of the court records, all points of determination for convicting accused persons for alleged offence are being analyzed and determined simultaneously. As per section 101 Indian Evidence Act, the onus of proving the points is on the prosecution. It is the cardinal principle of criminal jurisprudence i.e. presumption of innocence, the prosecution has to prove the guilt of the accused beyond reasonable doubt.
18. As per the prosecution case, the accused used criminal FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 18 force on the complainant in order to commit theft of Rs. 200/- out of the possession of the complainant and on the same day, the accused was apprehended, which led to the recovery of the stolen money from his possession. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 19 in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
19. The sole eye-witness to the offence u/s 356/379/34 IPC is the complainant. Let us scan the testimony of the complainant first. A careful perusal of prosecution evidence reflected that the incident was first reported to the police via DD no. 7A dated 28.08.2014 which is Ex. A-3, wherein it was reported that one person had snatched Rs. 200/- of the caller and fled. Soon after the incident, the complainant gave his first statement which is Ex. PW1/B, wherein the complainant disclosed the role of two accused persons, instead of one, who snatched his money and ran away. However, during his examination-in-chief, the complainant testified as PW-1 that offence was committed by two people and after snatching his money they even slapped him, gave him fist blow on his stomach. It is observed that the version of complainant has improved a lot since his initial complaint and allegation made therein wherein he has not alleged anything with respect to slapping and beating by the accused persons.
20. Moving further, the complainant was allegedly not known to FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 20 the accused as per the prosecution story and he has nowhere disclosed about any distinctive feature of the accused either in his initial complainant or his testimony as PW-1. As per the prosecution story, the accused was arrested soon after the incident when the complainant along with PW-2 and PW-4/IO went in search of accused and case property. Test identification parade of the accused was never conducted in the presence of a Magistrate. In such a situation, there comes to the fore, a missing link in the prosecution story regarding how the accused was immediately apprehended near the spot.
21. In Vaikuntam Chandmppa and Ors. v. State of Andhra Pradesh, [AIR 1960 SC 1340] the Hon'ble Supreme Court observed that the substantive evidence of a witness is his statement in court, but the purpose of test identification is to test that evidence, and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding, or any other evidence. The law laid down in the aforesaid decision has been reiterated by the Hon'ble Supreme Court in [Budhsen and Anr. v. State of U.P., (1970 2 SCC 128), Sheikh Hasib alias Tabarak v.
FIR No. 653/2014PS. Kotwali State Vs. Anshul Sharma 21 The State of Bihar, (1972 4 SCC 773), Bollavaram Pedda Narsi Reddy and Ors. v. State of Andhra Pradesh, (1991 3 SCC 434), Ronny alias Ronald James Alwaris and Ors. v. State of Maharashtra, (1998 3 SCC 625) and Rajesh Govind Jagesha v.
State of Maharashtra, (1999 8 SCC 428)].
22. In the case of Ramanbhai Naranbhai Patel and Ors. v.
State of Gujarat, (2000 l SCC 358), it was observed "It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless; whether the evidence deserves any credence or not, would always depend on the facts and circumstances of each case." The Court further observed "the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds, especially when they were assaulted in broad daylight." In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court".
FIR No. 653/2014PS. Kotwali State Vs. Anshul Sharma 22
23. Coming to the facts of the present case, the complainant has testified during his cross-examination that it took 4 to 5 minutes in commission of offence by the accused persons and they ran away when he raised the alarm. It is pertinent to note that the accused was not arrested from the spot, the accused was not known to complainant, the physical characteristic features of the accused not mentioned by the complainant, and the interval of time in which the entire offence of snatching and theft allegedly happened, and the nature of interaction the complainant had with the accused in that duration, make it difficult to believe the complainant's identification of accused in the court, without being supported by a formal test identification parade.
24. As per prosecution version, soon after the alleged offence, IO/PW-4 alongwith PW-2 went to the spot, met the complainant and they all left in search of the accused persons. Further, PW-2 and PW-4 deposed that when they reached near Bankhandi Mandir, the complainant pointed towards the accused and informed that he had snatched his money. The story goes further that the accused was apprehended, upon his cursory search Rs. 200/- were recovered from his left side pocket of his lower and the complainant had identified the currency as belonging to him. As FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 23 per the complainant/PW-1, 3-4 people were sitting besides the accused when he got identified and apprehended thereafter. Even PW-2 and PW-4 deposed in their examination that the spot of incident was a crowded area and public persons were present at the spot, however no one was included in the search/investigation proceedings and admittedly no notice has been served to any public persons who refused to take part in the investigation by the IO. It is observed that despite availability no independent witness has been examined by the prosecution to support the allegation leveled by the complainant against the accused. It is clear from the examination-in-chief and cross-examination of PW-4 IO that no attempt was ever made by him to find any independent public witness. Arrest memo of the accused which is Ex.PW1/C was not signed by an independent witness. There is even contradiction as to at what place the arrest memo was prepared as the complainant specifically stated during his cross-examination that no documents were prepared at the spot including the arrest memo of the accused. In the above circumstances, there is reasonable doubt regarding the presence of the accused at the spot and his apprehension near the spot.
25. The prosecution version alleged that the accused was just FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 24 found nearby the area, and a stolen money was recovered on his personal search. It is beyond comprehension of this court that how the accused became so well-known to the complainant, that the complainant at once pointed out at him, and identified him, leading to his arrest and recovery of the complainant's money. Most importantly, the accused was still carrying the same money which he stole from the complainant so near the spot waiting for the complainant to arrive with the police officials. Thus, the prosecution story appears to be based upon coincidence, which does not appear to be a coincidence, and 'evidence', which does not have the probative value of an evidence. The story of the prosecution does not align at all with the common course of natural events, human conduct and public and private business, and therefore this court presumes u/s 114 of the Indian Evidence Act that such offence has not been committed by the accused and the prosecution evidence does not rebut this presumption. Accordingly, the prosecution has failed to prove its case u/s 356/379/34 IPC beyond reasonable doubts.
26. Also, during cross-examination a question was put to the complainant by the defence that the accused had given beating to the complainant 3-4 days prior to the occurrence of incident in FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 25 question to which the complainant answered in positive and the complainant even stated that no police complaint has been lodged for the same by the complainant. However, the complainant has denied the suggestion that the present case has been planted upon the accused due to the said beating. The complainant has not disclosed this incident of beating either in his initial complaint or during his examination-in-chief, also this was not in knowledge of PW2 or PW-4, which shows that the complainant had not disclosed about this incident even during investigation. In the above circumstances, it remained unexplained by the prosecution as to why the complainant has not whispered about this incident and that the accused was previously known to him in any of his earlier statements. It raises a reasonable doubt in the case of prosecution being planted upon the accused due to previous enmity between the complainant and the accused. In view of the above discussion, the prosecution has failed to prove the ingredients of offence under section 356/379/34 IPC against the accused beyond a pale of reasonable doubt.
27. Coming to the allegation u/s 411 IPC leveled against the accused, a bare reading of the said provision reveals that in order to attract section 411 IPC, one has to retain or keep the stolen FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 26 property in his possession having knowledge that the said property is a stolen property. In the instant case, evidence on record reveals that PW-1, PW-2 and PW-4 are the seizure witnesses. PW-1 in his evidence deposed that the recovery of Rs. 200/- was made upon the personal search of the accused at the place where he was apprehended. However, during cross-examination, PW-1 deposed that the police had taken out Rs. 200/- from the pocket of the accused in his presence at the police station. The entire testimony of PW-1 is at odds with the testimonies of PW-2 and PW-4 qua the place of recovery. The statement of complainant put entire recovery proceedings in question and also raises question over authenticity of seizure memo as other seizure witnesses have categorically testified that recovery was effected at/near Bankhandi Mandir. The benefit of these inconsistencies and contradictions in the testimonies of the witnesses shall accrue to the accused.
28. One crucial document with respect to the recovery is the seizure memo of case property which is Ex.PW1/A. Perusal of the same apprised this court that seizure memo bears the FIR number at the top of it. Contrary to this documentary evidence, the oral testimony of PW-1 and PW-4 is to the effect that the case property was initially sealed and seized, and only thereafter the ruqqa was FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 27 sent for registration of FIR. At the time of the seizure, the FIR number was not available as per prosecution story and therefore, the FIR number could not have been figured on the seizure memo. The existence of the FIR number on the said memo suggests that the seizure memo was prepared after the registration of the FIR. In view of the above discussion, it is not clear whether FIR was registered before all paperwork related to the case property was done or after. This erodes the credibility of the witnesses who have stated that the seizure memo was prepared on the spot and before the registration of FIR and the possibility of tampering cannot be ruled out.
29. Here, it is relevant to refer to case law reported as Mohd.
Hashim v. State 1999(6) A.D. (Delhi) 569, wherein it was observed that when documents are prepared before the registration of FIR and it contains the FIR number, then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases benefit of the doubt is to be given to the accused.
30. The complainant did identify Rs.200/- in cash to be the same currency notes which were stolen from his pocket but importantly, FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 28 the complainant in his initial statement had neither told the police about the denomination of currency notes stolen from his pocket nor did he tell the police about the number of each currency note stolen. How the complainant identified the currency notes to be the same notes as stolen from him is not known. The witness did not mention any special mark or feature on the notes which helped him in concluding that the currency notes were his property. Ordinarily, it is next to impossible for a person to merely look at a currency note and tell whether the same belongs to him. Neither any photographs were taken at the time of recovery/seizure or any specific number/mark on the allegedly recovered currency notes were noted down in the seizure memo. There is no way to independently ascertain that the currency notes identified by the complainant indeed belonged to him and were actually stolen from his pocket at the alleged date of incident.
31. Another dent in the prosecution story is that the case property was sealed by the IO, however no seal handing memo was prepared. PW-2 deposed in his examination that no seal handing memo was prepared after the seizure of case property. No explanation has come on record as to why the handing over memo was not made or the case property was not deposited in malkhana.
FIR No. 653/2014PS. Kotwali State Vs. Anshul Sharma 29 The case property in the present case is currency note of Rs. 200/-, which admittedly does not bear any specific or distinctive mark to ascertain that whether the same belonged to the complainant. The possibility of tampering of case property or the chance of false implication of allegedly recovered stolen currency cannot be ruled out.
32. Now, I don't discount the possibility that there may be an element of truth in the prosecution story when considered as a whole, but the standard of proof in criminal cases dictates that the accused persons can be held guilty only when it is established that the accused has committed the offence. The prosecution has to traverse the distance between may have committed to must have committed in the light of cogent and unimpeachable evidence. Thus it is quite clear that the prosecution has failed to deliver on this end in the instant case.
33. Hence, considering the discussion made above and after such deliberation, it is my opinion that in the circumstances of the case, the evidence on record does not suffice in proving the guilt of the accused person u/s 411 IPC beyond reasonable doubt. The evidence on record in the instant case is not sufficient to warrant FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 30 the conviction of the accused under section 411 IPC, more so when the seizure of the case property itself has not been proved by the prosecution. Thus, the accused person will have to be given the benefit of doubt. Situated thus, the point of determination is decided in the negative.
34. As far as the offence punishable u/s 174A IPC is concerned, a charge for commission of offence u/s 174A IPC was framed against the accused as he was declared proclaimed person u/s 82 Cr.P.C on 15.01.2019 as he failed to appear in compliance of the proclamation issued against him as per section 82(1) Cr.P.C. The requisite proclamation is on record. Testimonies of PW-5 and PW- 6 who arrested the accused on 24.10.2020 are in consonance with each other and found to be cogent and trustworthy. Further, it is a matter of record that the accused did not appear within 30 days of publication of these proclamations. Even during the statement recorded u/s 313 Cr.P.C, the accused stated that he had not appeared before the court as he was mis-informed by his previous counsel regarding the closure of case, which also lends credence to the prosecution case that the accused failed to appear before the court in compliance of proclamation. Hence, it is proved that he committed an offence u/s 174A IPC.
FIR No. 653/2014PS. Kotwali State Vs. Anshul Sharma 31 CONCLUSION:
35. On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution for offence u/s 356/379/411/34 IPC.
Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Therefore, the Accused is given the benefit of doubt. Accordingly, the accused Anshul Sharma S/o Subhash Chand Sharma is hereby acquitted for an offence punishable under Section 356/379/411/34 of Indian Penal Code, however, the accused is convicted for the offence u/s 174A Indian Penal Code.
36. Copy of this order be given free of cost to the accused.
Announced in the open court
Digitally signed
on 01st of February, 2023 MEENA by MEENA
CHAUHAN
CHAUHAN Date: 2023.02.01
16:19:16 +0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District, Tis Hazari Courts/Delhi
[This judgment contains 32 pages and each page bears the initials of FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 32 undersigned and the last page bears the complete sign of undersigned.] FIR No. 653/2014 PS. Kotwali State Vs. Anshul Sharma 33