Delhi District Court
State vs . Ghanshyam on 19 September, 2012
page1/19
IN THE COURT OF SUDHIR KUMAR SIROHI
METROPOLITAN MAGISTRATE02 DWARKA COURT, NEW DELHI.
FIR NO: 75/11
PS: Sagarpur
U/s 382/356/511
State
Vs.
Ghanshyam, S/o Sh. Balbir Singh,
R/o House no. 63, Jagdamba Vihar, Gali no. 3,
Sagarpur, New Delhi.
........... Accused
1. Sl. No. of the case. 100/2
2. The date of offence 23.03.2011
3. The name of the complainant State
4. The name of the accused Ghanshyam, S/o Sh. Balbir
Singh, R/o House no. 63,
Jagdamba Vihar, Gali no. 3,
Sagarpur, New Delhi.
5. The offence complained 356/382 r/w 380 r/w 511 IPC
6. The plea of the accused Pleaded not guilty
7. The date on which the order 13.09.2012
was reserved
8. The date of order 19.09.2012
9 . The final order Convicted
State vs. Ghanshyam
FIR no. 75/11
page2/19
JUDGMENT
Present: Ld. APP for the state.
Accused Ghanshyam in person with Ld. Counsel.
1. Brief facts of the case as per prosecution are that on 23.03.2011 at about 6.30 pm near Hanuman Mandir Sagarpur within jurisdiction of PS Sagarpur accused Ghanshyam ( herein called accused) assaulted Ms. Anju Kumari and thereby committed an offence punishable under section 356 IPC and accused tried to pull chain from neck of Ms. Anju Kumari, therefore accused committed such attempt of theft with preparation of cause hurt. It is further case of prosecution that accused was apprehended on spot and on disclosure of accused paper knife was removed.
2. On appearance of the accused copies were supplied to him. Charge for having committed offence punishable under sections 356, 382 r/w 380 r/w 511 IPC were framed against him, to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined six witnesses. The prosecution witnesses correctly identified the accused in court. 4 Statement of accused recorded under section 313Cr.P.C. and all incriminating circumstances appearing in evidence were put to him and accused denied all the incriminating circumstances. Accused did not State vs. Ghanshyam FIR no. 75/11 page3/19 prefer to lead defence evidence. During 313 Cr. P. C. statement accused stated that due to some misunderstanding PW1 ( Ms. Anju) stated arguing with him as she thought that accused misbehaved with her and he has been falsely implicated.
5. PROSECUTION EVIDENCE PW1Ms. Anju Kumari in her deposition stated that on 23.03.2011 at about 6 pm she was going to doctor with her husband on motorcycle and at about 6.30 pm when they reached at Hanuman Mandir where they parked motorcycle and stood there for waiting for a friend of her husband and while standing there on the road one person came towards her and pounced upon her and tried to snatch her gold chain from her neck. PW1 further deposed that she saved her gold chain from being snatched from the accused and shouted "pakro pakro" and accused started running from the spot and tried to catch the accused by running behind him and accused while running away took out a knife from his pocket and threatened them by showing knife. PW1 further deposed that public persons came forward and caught accused and her husband called police. PW1 also stated that her statement was recorded by police and the name of accused was found to be Ghanshyam. PW1 proved arrest and personal search memo of accused. PW1 has also stated that she showed site of State vs. Ghanshyam FIR no. 75/11 page4/19 incident to the police. PW1 failed to identify paper knife which was produced by MHCM and the same was unsealed but having initials of case. PW1 stated that as the matter is one and half year old thereafter she can not identify the knife. PW1 during her cross examination stated that person for whom they were waiting was not made witness in the case and she denied the suggestion that accused is known to her prior to incident and she also denied that her husband was having issue of parking with accused. Therefore, accused has been falsely implicated. PW1 also stated that the gold chain was of nearly 3 tola approximately but she can not produce the ownership documents of the same. PW1 failed to tell whether sketch of knife was prepared in her presence or not but she stated that knife was recovered from the accused. PW1 also stated that she has signed sketch of knife prepared by police.
PW2 Dhanjay Kumar also deposed in the same line as that of her wife and stated that statement of her wife was recorded by police ( Ex. PW1/A). PW2 identified case property as ( Ex. P1). During his cross examination PW2 stated that he was going to Doctor namely Gulati and he was waiting at Hanuman Mandir when incident occurred. PW2 further deposed that person for whom they were waiting was coming on foot and three of them have planned to go by foot and stated that his motorcycle State vs. Ghanshyam FIR no. 75/11 page5/19 was parked at the road side in front of shops. PW2 also produced prescription of Dr. Gulati, same is (Ex. PW2/DX1). PW2 also denied the suggestion that he is having some dispute regarding parking with accused and accused has been falsely implicated.
PW3 Ct. Kapil in his deposition stated that on 23.03.2011 he was posted at PS Sagarpur and was patrolling at about 6.30 pm and was present nearby Hanuman Mandir when he heard noise Pakro - Pakro. PW3 further deposed that he saw one person running and accused was apprehended by the public thereafter IO came on the site and he handed over the accused to the IO and after that accused was taken by him for medical examination to hospital and after medical examination he came back to spot along with accused. PW3 also stated about arrest and personal search of the accused. PW3 also proved disclosure of the accused ( Ex. PW3/A) and stated that knife shown by the accused was recovered from nearby garbage and the knife was recovered at the instance of accused. PW3 also stated that IO prepared sketch of knife ( Ex. PW2/B). PW3 also identified case property i.e. Knife ( Ex. P1). PW3 during his cross examination stated that he was present on spot on day of incident from 6.30 pm 11.30 pm and IO came at the spot at about State vs. Ghanshyam FIR no. 75/11 page6/19 7.15 pm. PW3 denied the suggestion that nothing was recovered at the instance of accused and the recovery was planted on the accused.
PW4 Ct. Belas in his deposition stated that on 23.03.2011 he was posted at PS Sagarpur and on receiving of DD entry no. 23 A he along with Constable Ram Niwas went to near Hanuman Mandir where PW3 had already apprehended accused with public and complainant with her husband met them there. PW4 also stated that accused was handed over to IO and after that accused was sent for medical examination with PW3. PW4 also stated that IO recorded statement of complainant and prepared rukka and handed over same to him for registration of FIR. PW4 also stated that he got FIR registered and the accused was arrested. PW4 also deposed about disclosure of the accused and stated that knife was recovered at the instance of accused from the nearby garbage and the total length of blade was 6m, breadth was 1.3 cm and length of handle was 7.7cm which was yellow in colour. He further deposed that IO prepared the sketch of knife ( Ex. PW2/B). PW4 also deposed that IO seized case property i.e. small paper cutter knife ( Ex. PW2/A) and his statement was also recorded by the IO. PW4 identified the knife ( Ex. P1). PW4 during his cross examination failed to tell whether FIR was lodged after preparing sketch of knife or before.
State vs. Ghanshyam FIR no. 75/11 page7/19 PW5 ASI Vishnu Prasad deposed that he was posted as Duty Officer on 23.03.2011 and proved FIR ( Ex. PW5/B) on basis of DD entry no. 23 A ( Ex. PW5/A).
PW6 HC Ram Niwas IO of the case deposed that on 23.03.2011 he was posted at PS Sagarpur and on receiving of DD entry ( Ex. PW5/A) he along with PW4 went to the spot where PW3, complainant, her husband and apprehended accused met them and after that he recorded statement of complainant ( Ex. PW1/A) and thereafter he sent accused for medical examination to DDU Hospital with PW3 and he got FIR registered through PW4. PW6 also stated that he prepared site plan and proved the same ( PW6/B). PW6 also deposed about disclosure of accused ( Ex. PW3/B) and stated that on the instance of the accused knife was recovered from the nearby garbage and identified knife as ( Ex. P1). PW6 also stated that infinity was written on the knife and the sketch of the same was prepared by him ( Ex. PW2/D) and knife seized by him ( Ex. PW2/A). PW6 proved arrest and personal search of the accused and stated that he also recorded statement of witnesses. During his cross examination PW6 has stated that he reached spot of incident at about 7.15 pm and recovery memo of knife was written by him.
6. ARGUMENTS:
State vs. Ghanshyam FIR no. 75/11 page8/19 Ld. APP for the state submitted that as the accused tried to snatch the gold chain from the neck of PW1 while fleeing from the spot and accused showed knife to PW1 and PW2, therefore, accused has committed an offence u/s 382 r/w 511 IPC as the accused has attempted and offence and accused was having a blade in his hand which he showed to PW1 and PW2. Thereafter, this shows preparation of accused for causing hurt. Ld. APP for the state prays fro conviction of accused. Ld. Defence Counsel for accused on the other hand argued that prosecution has miserably failed to prove guilt of accused beyond reasonable doubt and he also argued that :
a) No public person is joined by the IO in the case and PW1 and PW2 are interested witnesses. Moreover, they have falsely implicated the accused as the accused is having dispute of parking with PW1 and PW2.
b) Knife produced in the court was without seal and knife was not sealed by IO and therefore knife is falsely planted on the accused.
Therefore, Ld. Defence Counsel for accused prays for acquittal of accused.
c) Chain is not produced in court and moreover story of PW1 and PW2 not reliable as both stated that they were going to Doctor on motorcycle State vs. Ghanshyam FIR no. 75/11 page9/19 and they parked their motorcycle and was waiting for their friend when incident occurred.
Now, I am dealing with contentions raised by Ld. Defence Counsel one by one: Contention A: Admittedly, no independent witness is made by prosecution In, "Balraj Singh Vs. State of Punjab" the Hon'ble Punjab & Harayana High Court as well as in Md. Altaf Vs. State of NCT, dated 30.11.07 the Hon'ble Delhi High Court held that "in case, independent witness was available but not joined by the investigating officer the story is not to be ignored. Question is why police officials have deposed against the appellants/accused when he had no enmity with the police officials. In case independent witness is not joined then evidence on file is to be scrutinized with great caution and mere nonjoining of independent witness is not fatal.
Admittedly, only PW1 and PW2 are sole eye witnesses of the case and they are also victims of the case, therefore, in my opinion no person who is victim of the case will falsely implicate any person with whom he is not having issue. Moreover, plea taken by Ld. Defence Counsel that accused is known to PW1 and PW2 and both the parties are having parking dispute bears no merit in my considered opinion as no evidence State vs. Ghanshyam FIR no. 75/11 page10/19 has been placed on record to establish the veracity of the same and to establish the fact that accused is known to PW1 and PW2. Hence, I do not find any merit in this contention of Ld. Defence Counsel. Contention B: Admittedly PW1 failed to identify the knife in the court but all prosecution witnesses identified the knife in the court but at the same time when knife was produced in white pullanda in the court it was unsealed but having initial of case. Therefore, possibility can not be ruled out that knife may be planted on the accused and it would have been prudent on the part of IO to seal knife after recovery but IO failed to do so. Hence, this contention of Ld. Defence Counsel can not be ignored. Contention C: Admittedly chain is not produced in court but in the case in hand chain was not taken by accused nor his recovery from accused was effected then non production of chain is of no significance in case as chain always was in possession of PW1. PW1 and PW2 both stated that they were going to Doctor on motorcycle and on way they have to meet one of their friend and after that all of them have to proceed on foot when this incident occurred. I do not find anything suspicion in this statement of PW1 and PW2 as three persons can not go on motorcycle. So, PW1 and PW2 State vs. Ghanshyam FIR no. 75/11 page11/19 adopted alternate measure and they decided to go on foot. Hence, this contention of Ld. Defence Counsel is of no use.
Discussion: After dealing with contentions raised by Ld. Defence Counsel and after going through the evidence on record, I am of the opinion that in the case in hand it has been established by the deposition of PW1 that accused tried to snatch the gold chain from the neck of PW1 and after that accused was apprehended at the spot itself by general public and PW3. Therefore, whether this act of accused falls within definition of attempt or not before is to be seen in the light of definition of attempt and the theories attached to it.
The word 'attempt', said Chief Justice Cockburn, clearly conveys with it the idea that if the attempt had succeeded, the offence charged would have been committed. In other words, attempt is the direct movement towards the commission of an offence after the preparation has been made. According to English law, a person may be guilty of an attempt to commit an offence, if he does an act which is more than merely preparatory to the commission of the offence and a person may be guilty or attempt to commit an offence even though the facts are such that the commission the offence is impossible. Gaur K. D., " Indian Penal Code"
State vs. Ghanshyam FIR no. 75/11 page12/19 Chap. XXIIIp. 842. Once an act enters into the arena of attempt, criminal liability begins, because attempt takes the offender very close to the successful completion of crime and so it is punishable in the law like the completed offence.
An attempt creates alarm which of itself is an injury, and the moral guilt of the offender is the same as though he had succeeded. The act may be sufficiently harmful to society by reason of its close proximity to the completed offence classed as a crime. Hence, unlike civil law, criminal law takes notice of attempts to commit punishable wrongs and punishes them according to the nature and gravity of the offence attempted.
If the third stage is successful, then the crime is completed and the accused will be liable according to the offence committed by him. Thus an attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is at present intent coupled with some overt act in execution. Generally, the commission of a crime by a person involves four stages a ) formation of the intention or mental element b) preparations for the commission of the crime c) acting on the basis of the preparation and d) commission of the act resulting in an event prescribed by the law. Some legal system penalize from the stage of preparation. They depending upon the importance of the system gives to the value of ' crime prevention' State vs. Ghanshyam FIR no. 75/11 page13/19 declare certain offences to be criminal and punishable from the stage of preparation, there may not be the responsibility for attempt if the person was negligent or reckless in as much as attempt is a crime of purpose. However, knowledge, recklessness or negligence in appearing the material surrounding circumstances can support the charge of attempt.
Thus, it is simple to say that an attempt to commit offence begins where preparation to commit it ends, but it is difficult to find out where one ends and the other begins. To solve this riddle various tests have been laid down by the courts. These are as follows:
a) The proximity test, b) the locus poenitentiae test, c) The impossibility test, d) The social danger test, and e) the equivocal test 1) The Proximity Test: Proximity cause as explain is the casual factor
which is closes, not necessarily in time or space, but in efficacy to some harmful consequences; in other words, it must be sufficiently near the accomplishment of the substantive offence.
State vs. Ghanshyam FIR no. 75/11 page14/19 In Sudhir Kumar Mukherjee case and Abyanand Mishra case, the Supreme Court explained the offence of attempt with help of the proximity test, saying that: " A person commits the offence of 'attempt to commit a particular offence' when
a) he intentds to commit that particular offence; and
b) he having made preparation with the intention to commit the offence, does an act towards its commission; such an act need not to be the penultimate act towards the commission of that offecne but must be an act during the course of committing that offence.
2) The Locus Poenitentiate test: The Latin expression speaks about time for repentance. In Locus Poenitentiae the word Locus means, a place, a word frequently used to denote the place in or at which some material act or even such as crime, delict or breach of contract took place. Locus Poenitentiae means the opportunity to withdraw from a bargain before it has become fully Constituted and become binding.
In simple language an act will amount to a mere preparation if a man on his own accord, before the criminal act is carried out, gives it up. It is, thus, possible that he might of its own accord, or because of the fear of unpleasant consequence that might follow, desists from the completed State vs. Ghanshyam FIR no. 75/11 page15/19 attempt. If this happens, he does not go beyond the limits of preparation and does not enter the arena of attempt. He is, at the stage of preparation which can not be punished.
Malkiat Singh case Malkiat Singh vs. State of, ( 1969) 1 SCC 157 explains this second test, in this case, a truck carrying a paddy was stopped at Samalkha Barrier, a place 32 miles away from. Evidently, thre was no export of paddy within the meaning of para 2 (a) fo the Punjab Paddy ( Export Control) Order, 1959, the Court decided that there was no attempt to commit the offence export, it was merely a preparation. Distinguishing between attempt and preparation Supreme Court observed that the test of distinction between two is whether the over acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case, it is quite possible that the appellants may have been warned that they had no license to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi Punjab boundary and not have proceeded further in their journey.
3) Impossibility Test: In Queen Express vs. Mangesh Jivaji, the high court held that within the meaning of section 511 of IPC, see section State vs. Ghanshyam FIR no. 75/11 page16/19 511 of IPC and also its illustrations an attempt is possible, even when the offence attempted cannot be committed.
In Asagarali Pradhniu vs. Emperor (1934) ILR 61, 64, what the appellant did was not an "act done towards the commission of offence", and therefore, he could not be convicted. But in a Malaysian case the accused was held liable for an attempt to cause abortion when the woman was not pregnant. Even the appeal court held that accused liable because the circumstances in this case seemed to be exactly covered by the illustration to section 511 IPC. The act itself is impossible of performance and yet it constitutes an offence of attempt to commit crime. This was precisely the position in English Law before Houghton vs. Smith case.
In R v. Shivpuri ( 1987) 1 AC 1 ( HL) it has been held that, if the mental element has proceeded to commit the act but failed his responsibility for attempt would be evaluated in the light of facts as he thought them to be ( punative facts).
4) The Social Danger Test: In order to distinguished and differentiate an act of attempt from an act of preparation the following factors are contributed.
a) The seriousness of the crime attempted;
State vs. Ghanshyam
FIR no. 75/11
page17/19
b) The apprehension of the social danger involved.
In this test the accused's conduct is not examined only partially but the consequence of the circumstances and the fullness of the facts are taken into consideration. For example, X administers some pills to a pregnant woman in order to procure abortion. However, since the pills are innocuous they do not produce the result. In spite of this X would be held liable for an attempt from the view point of the social danger test, as his act would cause as alarm to society causing social repercussions.
5) The Equivocality test: It is a situation wherein there are two opinions about the crime here, as decided by the Madras High Court, an attempt is an act of such a nature that it speaks for itself or that it is in itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face. In other words, if what is done indicates unequivocally and beyond reasonable doubt the intention to commit the offence, it is an attempt, or else ti is a mere preparation.
In the light of abovesaid discussion, I am now dealing with facts of case. In this case in hand one fact is to be taken care of that recovery of knife is doubtful from the accused as knife was not sealed when it was produced in the court. In addition to this, PW1 failed to identify knife who is one of the eye witness of the case though other prosecution witness State vs. Ghanshyam FIR no. 75/11 page18/19 identified the knife but when seizure of knife is not proper i.e. Case property not sealed then its recovery on instance of disclosure of accused is also doubt.
When accused tried to snatch gold chain belonging to PW1 accused committed an act towards commission of crime and ultimate crime failed due to action of PW1 which was beyond control of accused and if PW1 has not saved her chain this act of accused would have resulted in to an offence hence act of accused is an attempt to commit theft ( as per theories laid down by various court) but at same point of time recovery of knife is doubtful from accused so it can not be said that accused attempted to commit this offence after making preparation for causing hurt moreover no hurt or injury is reported to any prosecution witnesses in the case.
Therefore, the act of accused is manifestly beyond reasonable doubt is an attempt to commit theft u/s 379 IPC r/w 511 IPC. Though, charge initially framed u/s 382 r/w 511 IPC but the offence section 382 r/w 511 IPC is not maintainable because it has not been proved beyond reasonable doubt that knife was recovered from the accused. Therefore, preparation for causing death, hurt or restrained in order to committing of theft is not made out but an attempt of theft is made out and it is a cardinal principal that if charge is framed in higher section then accused may be State vs. Ghanshyam FIR no. 75/11 page19/19 convicted in lower section of the same offence. Accordingly, in the case in hand though the charge framed u/s 382 r/w 511 IPC but the same has not been proved and offence under section 379/511 has been proved beyond reasonable doubt. Moreover, no assault or use of criminal force has been reported by any of the Prosecution Witnesses particularly by PW1 and PW2, therefore, section 356 is also not made out in the case.
8. FINAL VERDICT Accused is convicted of offence u/s 379 r/w 511 IPC. Let the accused be heard on quantum of sentence. Copy of this judgment be given to accused free of cost.
Announced in the open court on 19.09.2012 (Sudhir Kumar Sirohi) M M09/Dwarka Court, New Delhi State vs. Ghanshyam FIR no. 75/11