Delhi District Court
State vs . Rahul Sethi & Anr. Fir No. 128/14 on 22 January, 2020
State Vs. Rahul Sethi & Anr. FIR No. 128/14
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
State vs. Rahul Sethi & Anr.
FIR No. 128/2014
U/sec. 379/356/411/34 IPC
PS: Hari Nagar
Date of institution of the case: 09.05.2014
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 22.01.2020
CIS No. 65875/2016
JUDGMENT
a) Date of commission of the offence : 07.02.2014
b) Name of the complainant : Ms. Sameena
c) Name of the accused and his parentage : 1. Rahul Sethi @ Gullu, S/o Shri Prem Kumar, R/o RZ-21N, Gali No. 2, near Deepawali Chowk, Dabri Extension, Delhi.
2. Aakash Kumar, S/o Shri Sunil Kumar, R/o RZ-38/1/345, Mohan Nagar, Pankha Road, New Delhi.
d) Offence complained of : Sec. 379/356/411/34 IPC
e) Offence charged of : Sec. 379/356/411/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 22.01.2020
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State Vs. Rahul Sethi & Anr. FIR No. 128/14
Brief reasons for the just decision of the case:
Succinctly stated facts of the prosecution case are that on 7 February 2014 at about 01:45 p.m., while the complainant Sameena along with her mother Smt. Hazra was returning from hospital, two persons came on a motorbike and snatched her gold chain. With regard to the aforesaid incident, a DD Entry No. 25 PP was recorded at police station Hari Nagar and the same was assigned to ASI Amar Singh for necessary action. On receipt of the said DD Entry, he went to the spot and recorded the statement of the complainant Smt. Sameena, on the basis whereof, present FIR/Ex. PW2/B was registered against unknown persons 379/356/411/34 IPC.
On 12 March 2014, IO arrested accused Rahul Sethi @ Gullu in case FIR number 281/2014 wherein he suffered disclosure statement regarding his involvement in the present case. Consequently, he was arrested by the IO in the present case and obtained his one day police custody remand from the learned Magistrate. During police custody remand, accused Rahul Sethi got arrested co-accused Aakash Kumar from his house and the stolen case property i.e the chain was also recovered from his hosue. Consequently, he was also arrested by the IO in the present case and an application was moved for holding Test Identification Parade (TIP) of the accused persons but they declined to participate in the TIP proceedings.
After completion of the investigation, charge-sheet under sections 379/356/411/34 IPC was filed before the court. Consequently, accused persons were summoned to face the trial. On their appearance, in the Court, copies of documents, relied upon by the prosecution, were supplied to them as per norms.
Thereafter, charge under sections 379/356/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial. In addition, a charge under section 411 IPC was also framed against accused Rahul Sethi to which he pleaded not guilty and claimed trial.
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With a view to connect the accused persons with the crime, the prosecution has examined only three witnesses, however, it did not include the complainant and her mother.
PW1/Constable Jagjeet Singh had accompanied the IO during investigation.
PW2/W/HC Celestina was the Duty Officer, who had recorded the FIR/Ex.PW2/B. PW3/ASI Amar Singh was the IO of the case.
Since the entire edifice of the prosecution was the statement of complainant and her mother, they were summoned to testify about the incident. They could not be examined by the prosecution despite availing numerous opportunities. Even their presence could not be secured through the office of concerned DCP. Therefore, considering the report submitted by the office worthy DCP, they were dropped from the list of witness and PE was closed and request of the learned APP for State to examine all the prosecution witnesses was declined as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that "...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
Since there was no incriminating circumstance against the accused persons, recording of their statements under section 313 of the Code was also dispensed with.
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State Vs. Rahul Sethi & Anr. FIR No. 128/14
I have heard the rival submissions advanced by the learned APP for State and the learned counsel for the accused and have also perused the records very carefully.
Arguments It is submitted by the learned counsel for the accused persons that the accused persons are charged for the offences punishable under sections 379/356/411/34 IPC but the prosecution has failed to examine the complainant and her mother despite availing numerous opportunities and in the absence of the testimony of complainant/victim and her mother, there is nothing on record to establish that alleged offence was committed by accused persons. He, therefore, requested that the accused persons may be acquitted of the charge leveled against them.
Decision and brief reasons for the same The prosecution has a duty to prove its case beyond reasonable doubt. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion.
Suspicion, no matter how strong cannot take the place of legal proof.
The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof.
The large distance between `may be' true and `must be' true, 4 of 15 State Vs. Rahul Sethi & Anr. FIR No. 128/14 must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
Now let us examine, if the prosecution has been able to prove the charge against the accused persons.
Section 356 IPC Section 356 IPC provides for punishment for assault or criminal force in attempt to commit theft of property carried by a person. It reads as under:-
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.
It was submitted by the learned APP for the State that accused persons had refused to participate in the test identification parade without any justifiable reason. Therefore, the court should take an adverse inference against them.
Per contra, it was submitted by the learned defence counsel that TIP is not a 5 of 15 State Vs. Rahul Sethi & Anr. FIR No. 128/14 substantive piece of evidence yet it can only be used to corroborate the dock identification.
The Hon'ble Supreme Court of India in the case of Vijay @ Chinee vs State of M.P decided on 27 July 2010 while dealing with the evidentiary value of TIP, held as under:-
17. In Malkhan Singh Vs. State of M.P. AIR 2003 SC 2669, this Court has observed as under:
"It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if re- quired. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identi- fication parade, is a matter for the courts of fact to examine."
18. In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3 SCC 508, this court (one of us, Hon'ble P. Sathasivam, J.) placed re- liance on Matru@Girish Chandra Vs. The State of Uttar Pradesh AIR 1971 SC 1050; and Santokh Singh Vs. Izhar Hus- sain & Anr. AIR 1973 SC 2190, wherein it had been held that the Tests Identification Parades do not constitute substantive evi- dence. They are primarily meant for the purpose of providing the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. The Test Identification Parade can only be used as corrob- oration of the statement in Court. The necessity for holding the Test Identification Parade can arise only when the accused per- sons are not previously known to the witnesses. The test is done to check the veracity of the witnesses. The court further ob- served as under :-
"The evidence of test identification is admissible under Section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the inves- tigation is not one which is in itself relevant at the trial.
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The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in the Cr.P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court."
19. Thus, it is evident from the above, that the Test Identification is a part of the investigation and is very useful in a case where the accused are not known before hand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court."
In view of the above judgment, the submission of the learned APP for the State is liable to be rejected.
In every criminal trial, the identity of the malefactor must be established by proof beyond reasonable doubt. Indeed, the first duty of the Prosecution is not to prove the crime but to prove the identity of the offender, for even if the commission of the crime can be established, there can be no conviction without proof of identity of the offender beyond reasonable doubt.
Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the offence.
The present FIR was lodged on 7 February 2014 against un-known persons. Accused persons were implicated on the basis of their alleged disclosure statements given to the Investigating Officer during the course of investigation and on their refusal to participate in the Test Identification Parade.
Thus, it was for the prosecution to prove that they were the same persons who had snatched the gold chain of complainant Ms. Sameena. Complainant and her mother namely Ms. Hajra, who was cited as an eye witness to the occurrence, alone could 7 of 15 State Vs. Rahul Sethi & Anr. FIR No. 128/14 have testified about the incident and could have identified the accused persons as the snatchers/wrongdoers. However, they were not produced and examined as prosecution witnesses. Thus, the best evidence for establishing the identity of the snatchers and stolen property not produced.
Rest of the witnesses are formal in nature and the identity of the accused persons cannot be established from their testimonies, inasmuch as, the alleged snatching/theft was neither committed in their presence nor it is the case of the prosecution.
In the case in hand, as the accused persons were not apprehended from the spot, their identity was in issue. However, both the eye-witnesses could not be examined by the prosecution despite availing numerous opportunities. Even their presence could not be secured through the office of worthy DCP.
Thus, identity of the accused persons could not be established beyond reasonable doubt. In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
Section 379/411/34 IPC It is submitted by the learned defence counsel that the accused persons have also been charged for the offences punishable under sections 379/411/34 IPC but the prosecution has failed to produce the complainant and her mother for their examination and the alleged stolen/recovered property despite availing numerous opportunities and in the absence of the testimony of complainant and her mother, there is nothing on record to connect the accused persons with the offences charged 8 of 15 State Vs. Rahul Sethi & Anr. FIR No. 128/14 with.
He placed reliance on a judgment passed by a Division Bench of Hon'ble High Court of Delhi in the case of State (Delhi Adminsitration) vs. Ravinder Kumar @ Ravi 1995II AD (Delhi) 6 wherein it was held as under:-
"..Further, Major Chakarvarty alone could have testified whether scooter Ex. P-1 was the one which belonged to him and was stolen. He has not been produced and examined as a witness in the case. Thus, the best evidence for establishing identity of the recovered property and the stolen property was not produced".
He submitted that in the present case also the best evidence i.e. the complainant, her mother and the stolen chain were not produced before the court. He, therefore, requested that the accused persons may be acquitted of the charge leveled against them.
Per contra, it was argued by the learned APP for the State that accused Rahul Sethi was found in possession of a stolen property i.e., the gold chain and if a person is found in possession of property recently stolen, and of which he can give no reasonable account, court can presume that he is a thief.
According to the learned APP for the State recent unexplained possession alone may be sufficient to raise a permissible inference of guilt.
Issue
1. Whether the accused persons had committed theft of chain belonging to the complainant?
2. Whether the accused Rahul Sethi received this stolen property i.e. gold chain "knowing or having reason to believe the some to be stolen property"?
To bring home the guilt of the accused persons, prosecution has cited as many as nine 9 of 15 State Vs. Rahul Sethi & Anr. FIR No. 128/14 witnesses in the list of witnesses annexed with the charge-sheet. Out of these nine witnesses, Ms. Sameena was the complainant while her mother Ms. Hazira was cited as an eye witness to the occurrence. Rest witnesses are formal in nature and guilt of the accused cannot be proved from their testimonies.
It is the case of the prosecution that the complainant Ms. Sameena lodged a complaint regarding theft of her chain while she was returning from hospital along with her mother. However, the said witnesses are not traceable as per the report submitted by the worthy DCP.
Now, I will take up the issues one by one.
Issue No.1 It was argued on behalf of the State that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, court can presume that he is a thief.
According to the learned APP for the State recent unexplained possession alone may be sufficient to raise a permissible inference of guilt.
He further submitted that Duty Officer has proved the factum of registration of the FIR, therefore, theft of the chain is proved.
Per contra, it was argued on behalf of the accused that presumption under the aforesaid section does not arise unless ownership of articles, theft and recent possession are established by the prosecution. He submitted that before a presumption under section 114, Illustration (a) Indian Evidence Act can arise, it must be proved that the goods found in possession of the accused have been stolen. The onus of proof regarding these aspects never shifts, it lies on the prosecution.
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He submitted that since the ownership and theft of the gold chain have not been proved by the prosecution, the presumption under illustration (a) to section 114 of the Evidence Act is not available.
Now, I will deal with the issue whether a presumption should be drawn under illustration (a) of section 114 Evidence Act?
For deciding this issue, it would be advantageous to refer section 378 and 379 IPC. Section 378 IPC defines theft. It reads as under:-
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.
Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by sepa- rating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
Section 379 IPC provides for punishment for theft. It reads as under:-
379. Punishment for theft.--whoever commits theft shall be pun-
ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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Let us see if prosecution has been able to prove beyond reasonable doubt that theft was committed and the gold chain was stolen from the possession of the complainant?
For establishing the ingredients of the offence for theft under section 379 IPC, the prosecution must prove beyond reasonable doubt that the accused had dishonestly moved the chain of the complainant from her possession without her consent.
However, despite availing numerous opportunities, prosecution has neither examined the complainant nor produced the case property during the course of trial.
Thus, nothing has come on record to prove that the accused persons had dishonestly taken away the gold chain out of the possession of complainant Ms. Sameena without her consent.
As far as presumption under section 114 of the Act is concerned, I am of the considered opinion that the presumption permitted by section 114 of the Act does not arise until the prosecution has established two facts; namely, the ownership of the articles in question and the theft of that article.
However, in the case in hand, the prosecution has miserably failed to prove that the gold chain was missing from the custody of complainant. Thus, neither the ownership of the gold chain nor its theft was established.
No doubt, the prosecution has proved registration of the FIR but the question still is whether accused persons have committed any offence whatsoever.
I am of the considered opinion that, once the first informant is not examined, even if the First Information Report is proved and exhibited, all that can be read from it is the fact that FIR was in fact recorded at the date and time mentioned therein but the contents of the FIR cannot be used to hold the accused guilty of the charge.
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Since the complainant and her mother could not be examined despite giving numerous opportunities, nothing could come out on the record to prove the incident or the necessary ingredients of the offence punishable under section 379 IPC. In the absence of any eye witness account as to how the incident has taken pace, accused persons be cannot fastened with any criminal liability as there is no direct evidence to connect them with the crime of committing theft.
Issue no. 2 Before I advert to rival submissions made by the learned APP for the State and the learned defence counsel, I again propose to refer to certain relevant provisions of IPC.
Section 411 IPC reads as under:
Sec.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."
The term "stolen property" is defined in section 410 IPC. It reads as under:-
Sec.410. Stolen property--Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which 1[***] criminal breach of trust has been committed, is designated as "stolen property", [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without 3[India]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
Thus, in every case under section 411 IPC two facts viz. that a theft was committed and certain articles were stolen, and that the stolen articles were recovered from the possession of the accused have to be established by direct evidence. If it is proved
13 of 15 State Vs. Rahul Sethi & Anr. FIR No. 128/14 that a theft was committed and that soon after it was committed, the stolen property was recovered from the possession of the accused, presumption can be raised under section 114, Illustration (a) of the Indian Evidence Act that the accused is either the thief or the receiver of the property knowing it to be stolen.
Illustration (a) of section 114, Evidence Act runs as follows:
The Court may presume:
(a) that a man who is in possession of stolen goods, soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
Thus, in order to make out an offence under section 411 IPC, the prosecution is required to establish that the property in question is a stolen property.
It is elementary that there can be no offence of dishonestly receiving stolen property unless the property which is alleged to be the subject of such receiving, answers the description of "stolen property" defined under section 410 IPC.
To prove its case, prosecution has cited as many as nine witnesses. However, the first informant/rightful owner of the property is not examined by the prosecution. Therefore, in the absence of testimony of complainant, the recovery of the stolen article alleged to have been made at the instance of the accused Rahul Sethi does not connect him with the crime as no evidence is adduced by the prosecution to show that the gold chain had, in fact, been stolen from the possession of the complainant or that the same belonged to her. The factum of theft could have been proved only by the complainant and her mother. They could not be examined in Court by the prosecution despite giving numerous opportunities. Even their presence could not be secured throught the ofice of DCP. Further, the case property i.e. the gold chain was also not produced before the court at any point of time. Therefore, I am of the considered opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt.
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The theft of the gold chain itself has not been proved due to non-examination of complainant. Obviously in such a scenario the gold chain allegedly recovered from the possession of accused Rahul Sethi is not proved to be a stolen property as defined under section 410 IPC. Until and unless the case property is proved to be stolen property which is a basic requirement, offence punishable under section 411 IPC is also not made out.
Result In view of the above discussion, I am of the considered view that the prosecution has miserably failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused persons. Consequently, accused persons namely Rahul Sethi and Aakash Kumar are acquitted of the charges levelled against them.
File be consigned to record room after due compliance.
Announced in open Court on 22nd day of January, 2020 `(Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/22.01.2020 This judgment contains 15 pages and each page bears my signature.
(Babita Puniya)
MM-06, West District,
Tis Hazari Courts/ Delhi/22.01.2020
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State Vs. Rahul Sethi & Anr. FIR No. 128/14
State vs. Rahul Sethi & Anr.
FIR No. 128/14
U/sec. 379/356/411/34 IPC
PS: Hari Nagar
22.01.2020
Present: Learned APP for the State.
Both accused on bail with counsel.
No PW is present today.
It is submitted by the learned counsel for the accused that continuance of the prosecution as against the accused would not serve any useful purpose and would be a sheer waste of time as the complainant and her mother have already been dropped from the list of witness and rest witnesses are formal in nature.
He, therefore, requested that PE may be closed and the accused persons may be acquitted of the charge leveled against them as nothing incriminating has come on record against them.
Per contra, it is submitted by the learned APP for the State that opportunity may be given to the State to examine all the witnesses.
I have heard the learned APP for the State and the learned defence counsel. I have also perused the file very carefully.
The prosecution has cited as many as nine (9) witnesses in the list of witnesses annexed with the charge-sheet. Out of these nine witnesses, Ms. Samina and Hajira Begum were cited as eye witnesses. Rest witnesses are formal in nature.
PW3 Sameena and Hajra could not examined by the prosecution despite numerous opportunities. Therefore, I am of the considered opinion that no useful purpose would be served by examining the rest of the witnesses, who are formal in nature. No prejudice will be caused to the prosecution if the evidence is closed as there are no chances of successful prosecution in view of paucity of evidence to prove the charges.
Therefore, in view of the above, PE stands closed and request of the learned APP for the State to examine remaining witnesses is declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High 16 of 15 State Vs. Rahul Sethi & Anr. FIR No. 128/14 Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held as under:
"...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
As no incriminating evidence has come on record against the accused persons, recording of their statements under section 313 of the Code is also dispensed with.
Final arguments heard. File perused.
Vide separate judgment of even date, accused persons namely RAHUL SETHI and AKASH KUMAR are acquitted of the charge leveled against them.
Bail bond under section 437-A of the Code furnished by accused Rahul Sethi. Perused and accepted. At request of accused Akash Kumar, his previous bail bond is considered u/s 437-A Cr.P.C.
File be consigned to record room after due compliance.
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