Delhi District Court
State vs . Chetan @ Shailender on 9 December, 2019
IN THE COURT OF MS. SHEFALI SHARMA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI
State vs. Chetan @ Shailender
FIR NO. : 268/16
U/S : 392/411 IPC
PS : Paharganj
JUDGMENT
a) Sl. No. of the case : 305700/16
b) CNR no. : DLCT020163992016
c) Date of institution of the case : 31/08/2016
d) Date of commission of offence : 02/07/2016
e) Name of the complainant : Chander Parkash S/o Lt. Sh.
Lekh Raj R/o H. No. 71, 1st
Floor, Gujrawala Town, PartII,
Delhi.
f) Name & address of the : Chetan @ Shailender
accused S/o Suresh @ Raju
R/o H. No. 9697, Gali no. 9,
Multani Dhanda, Paharganj,
Delhi.
g) Offence charged with : 392/411 IPC
h) Plea of the accused : Pleaded not guilty.
i) Arguments heard on : 9.12.2019
j) Final order : Acquitted.
k) Date of Judgment : 9.12.2019
FIR no. 268/19 State VS. Chetan @ Shailender 119
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Chetan @ Shailender has been sent to face trial with the allegations that on 02/07/2016 at about 06:00 p.m. at Sadar Thana Road, in front of Punjabi Barat Ghar, Motia Khan, Paharganj, within the jurisdiction of PS Paharganj, accused committed robbery of mobile phone make iphone6 from the complainant Chander Prakash. As per prosecution version, accused was caught at the spot itself with the robbed mobile phone and handed over to police. On these allegations, it is alleged that accused has committed offence U/sec. 392/411 IPC.
2. Upon completion of investigation, charge sheet was filed by Investigating Officer (hereinafter called as IO) and the accused was consequently summoned. After supply of copies and on completion of necessary formalities, a formal charge for commission of offence U/s 392/411 IPC were framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined seven witnesses who deposed as under :
4. PW1 Chander Prakash is the complainant and he deposed FIR no. 268/19 State VS. Chetan @ Shailender 219 that on 02/07/2016 at about 06:00 p.m. when he was on his scooty and reached in front of Punjabi Barat Ghar, Motia Khan, Paharganj, Delhi, suddenly one pedestrian struck against his scooty from front side and stopped his scooty and tried to snatch his mobile phone from front pocket of his shirt. That on his resistance, he attacked on him with blade. That he managed to save himself but the person successfully snatched his mobile phone make Apple I phone from his pocket and fled away towards the street of Motia Khan. That he shouted for help and accused was apprehended by some police official who recovered blade and mobile phone from his possession. That they along with accused went to PS where his statement Ex. PW1/A was recorded. He further deposed about seizure of mobile phone & blade vide memo Ex.PW1/B, and preparation of arrest & personal search of accused vide memo Ex. PW1/C & Ex. PW1/D and preparation of site plan. That he had taken mobile phone on superdari and produced the same as Ex. P1. Witness correctly identified the accused. During crossexamination, he deposed that the PCR van was arrived after the accused was apprehended and recovery of mobile phone and surgical blade was already recovered from possession of accused. He denied the suggestion that he was not present at the spot along with his scooter or no such incident took place with him at the spot. He further denied that no case property was FIR no. 268/19 State VS. Chetan @ Shailender 319 recovered from possession of accused.
5. PW2 Const. Rajeev Kumar deposed that on 02/07/2016 on receipt of DD, he along with IO/HC Satinder reached at the spot i.e. Sadar Thana Road, in front of Pubjabi Barat Ghar, Motia Khan, Paharganj and saw HC Chander Sehkhar had apprehended the accused and complainant was also present there. That on instructions of IO, he had taken the accused to hospital where his MLC was prepared and collected the same. That he along with accused returned back to spot and handed over MLC to IO. During crossexamination he admitted that accused was in intoxication position when he took him to the hospital. He admitted that no recovery was effect at the spot in his presence.
6. PW3 HC Sanwaliya is the duty officer and proved DD no.
30A Ex. PW3A, DD no. 31A Ex. PW3/B, FIR Ex. PW3/C, his endorsement on rukka Ex PW3/D and certificate U/s 65B Indian Evidence Act Ex. PW3/E. During crossexamination he denied that FIR is ante timed.
7. PW4 SI Parvinder Kumar deposed that he was third IO and prepared charge sheet and submitted before the court. He was not crossexamined by the accused despite opportunity.
FIR no. 268/19 State VS. Chetan @ Shailender 419
8. PW5 HC Satender Kumar deposed that on 02/07/2016 on receipt of DD no. 30A he along with Const. Rajeev went to the spot where complainant and HC Chander Shekhar met them and handed over accused and robbed mobile phone and one surgical blade to him. That the mobile phone and blade were seized vide memo Ex. PW1/B. That statement of complainant Ex. PW1/A was recorded and rukka Ex. PW5/A was prepared. That he got FIR registered through Const. Sri Krishan. That SI O.P. Mandal reached at the spot and he handed over seizure case property and documents of this case and conducted further investigation. He correctly identified the blade as Ex. P2.
During crossexamination, he admitted that spot is a commercial market area and shops were opened. He and IO O.P. Mandal called nearby shopkeepers to join and witness sealing of pulanda and arrest of accused, but they all refused and no notice was served upon them. He denied that he was not present at the spot or he did not seized the case property or accused was not arrested at the spot or accused was falsely implicated in this case after calling him at PS from his house on the pretext of interrogation/ inquiry.
9. PW6 Const. Shree Kishan deposed that on 02/07/2016 FIR no. 268/19 State VS. Chetan @ Shailender 519 while he along with IO were on surveillance duty, IO received a call from HC Chander Shekhar regarding the incident. That they reached the spot where they met complainant, HC Chander Shekhar and accused. That HC Satender and Const. Rajiv also came there and HC Satender recorded statement of complainant and seized the mobile and one blade. That accused was medically examined and he took rukka and got the FIR registered. The witness was not crossexamined by the accused despite opportunity.
10. PW7 ASI Chander Shekhar deposed that on 02/07/2016 when he was present nearby Punjabi Barat Ghar, Motia Khan, he heard a noise 'chorchor' and saw one person was chasing another person. That he apprehended that person and during personal search one mobile phone and one blade was recovered. That complainant narrated the whole story. That HC Satender came there and he handed over the case property to him and he seized the same. That accused was arrested vide memo Ex. PW1/C, his personal search was conducted vide memo Ex. PW1/D and his disclosure was recorded vide Ex. PW7/A. During crossexamination he denied that neither he had recovered the mobile phone or handed over the same to HC Satender. He denied that he had signed arrest memo at the FIR no. 268/19 State VS. Chetan @ Shailender 619 instance of IO. He denied that he was not present at the spot. He further denied that he did not apprehended the accused and recovered the mobile from possession of accused.
11. On conclusion of PE, statement of accused U/s 313 Cr.P.C was recorded wherein all the incriminating evidence was put to them. Accused denied the same as incorrect and claimed to be falsely implicated. Accused chose not to lead any defence evidence in their favour.
STATEMENT OF ACCUSED U/S. 313 OF CR.P.C.
12. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused persons were recorded, wherein he stated that he does not want to lead defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
13. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material on record.
14. Before proceeding further, I need to discuss the relevant legal propositions applicable to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to FIR no. 268/19 State VS. Chetan @ Shailender 719 prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused.
15. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused persons to acquittal.
INGREDIENTS OF SECTION 392/411 OF INDIAN PENAL CODE
16. To prove the offences U/s. 392/411 of IPC, the prosecution is required to prove the following:
Section 392 IPC
(a) that the accused committed theft;
(b) that he caused or attempted to cause to some person (a) death, hurt or wrongful restraint: or (b) fear of instant death, or of instant hurt, or of instant wrongful restraint;
(c) that he did as above (a) in committing such theft; or (b) in order to commit such theft, or (c) in carrying away, or attempting to carry away, the property obtained by such theft;
(d) that he acted as in (ii) voluntarily. Or prove:
(a) that the accused committed extortion;
FIR no. 268/19 State VS. Chetan @ Shailender 819
(b) that he was, at the time of committing it, in the presence of the person so put in fear;
(c) that he committed it by putting that person or some other person in fear of instant death, or of instant hurt, or of instant wrongful restraint;
(d) that he thereby induced the person so put in fear to deliver up then and there the thing extorted.
SECTION 411 IPC
(a) that the property in question is stolen property.
(b) that the accused received or retained such property.
(c) that he did so dishonestly.
(d) that he knew or had reason to believe that the property was stolen property.
17. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined seven witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the stolen property has been stolen by the accused Chetan @ Shailender and the same was recovered from his possession . In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused persons or not.
APPRECIATION OF EVIDENCE QUA OFFENCE U/S 411 IPC.
18. The accused Chetan @ Shailender has been charged under Section 411 IPC for recovery of stolen property. The case of the FIR no. 268/19 State VS. Chetan @ Shailender 919 prosecution in the nutshell that on 02/07/2016 at about 06:00 p.m. at Sadar Thana Road, in front of Punjabi Barat Ghar, Motia Khan, Paharganj, within the jurisdiction of PS Paharganj, accused committed robbery of mobile phone make iphone6 from the complainant Chander Prakash. As per prosecution version, accused was caught at the spot itself with the robbed mobile phone and handed over to police.
19. The prosecution had examined the complainant Sh. Chander Parkash who deposed that on 02/07/2016 at about 06:00 p.m. when he was on his scooty and reached in front of Punjabi Barat Ghar, Motia Khan, Paharganj, Delhi, suddenly one pedestrian struck against his scooty from front side and stopped his scooty and tried to snatch his mobile phone from front pocket of his shirt. That on his resistance, he attacked on him with blade. That he managed to save himself but the person successfully snatched his mobile phone make Apple I phone from his pocket and fled away towards the street of Motia Khan. That he shouted for help and accused was apprehended by some police official who recovered blade and mobile phone from his possession. That they along with accused went to PS where his statement Ex. PW1/A was recorded. He further deposed about seizure of mobile phone & blade vide memo Ex.PW1/B, and preparation of arrest & personal FIR no. 268/19 State VS. Chetan @ Shailender 1019 search of accused vide memo Ex. PW1/C & Ex. PW1/D and preparation of site plan. That he had taken mobile phone on superdari and produced the same as Ex. P1.
20. Further from the testimony of PW1 it is transpires that police party recovered the stolen case property from the possession of accused . Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register.Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
21. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said PWs. The prosecution has produced no evidence whatsoever on record in the nature of documentary FIR no. 268/19 State VS. Chetan @ Shailender 1119 evidence of the required D.D. entries, so as to establish the presence of PWs and other police officials including IO, near the place of the recovery. It is also worth mentioning that as per the case of the prosecution that police officials who apprehended the accused was posted at concerned PS at the time of incident. However, no DD entry in support of this fact has been placed on record which PWs had left the PS office before the recovery and by which they had arrived at PS after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused and the recovery of the stolen case properties, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule.
At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove FIR no. 268/19 State VS. Chetan @ Shailender 1219 the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
22. Further PW2 Ct Rajeev in his cross examination, categorically admitted that spot in question was surrounded by the residential area and market starts from 20m from the spot. Thus, it was public place and the alleged offence was happened at around 6:00 pm and it is expected that same would have been congested area at the relevant time. However, no public witness has been examined by the prosecution nor any notice had been given by the IO upon their refusal and not became witness of recovery.
23. In circumstances like the present one, the PW2 Ct Rajeev Kumar and PW 5 HC Satender Kumar should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused was already apprehended, since after the apprehension of the accused, there was no possibility of accused escaping his arrest or his crime going undetected. At least in FIR no. 268/19 State VS. Chetan @ Shailender 1319 these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana"
FIR no. 268/19 State VS. Chetan @ Shailender 1419 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must FIR no. 268/19 State VS. Chetan @ Shailender 1519 have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Nirmal Kumar Jha SI who appeared as PW8 and HC Sukhpal Singh, PW9. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
24. In view of the above discussion, I am of the considered FIR no. 268/19 State VS. Chetan @ Shailender 1619 opinion that the prosecution has miserably failed to prove the recovery of stolen properties from the possession of the accused.
APPRECIATION OF EVIDENCE QUA OFFENCE U/S 392 IPC.
25. The accused has been charged under Section 392 IPC . The case of the prosecution in the nutshell, is that on 2.7.2016 a about 6:00pm at Sadar thana Road in front of Punjabi Bharat Ghar Motiya Khan Paharganj New Delhi , accused robbed complainant Chander Parkash by stopping his moving scooty and putting him under the fear of causing instant hurt with a blade and committed theft of mobile phone make iphone 6 and complainant caused alram and accused was caught by the police officials.
26. The prosecution had examined the complainant PW 1 Chander Parkash deposed that the accused had snatched away his APPLE mobile phone forcefully and on his resistance was attacked by accused with blade. He further deposed that accused was apprehended from the spot and thereafter police officials recovered the aforesaid blade and mobile phone from the possession of accused. He further deposed that IO seized mobile phone and blade in his presence vide memo Ex PW FIR no. 268/19 State VS. Chetan @ Shailender 1719 1/B, accused was personally searched vide memo Ex PW 1/C and arrested accused vide memo Ex PW 1/D all bearing his signature at point A respectively. In his cross examination, however he admitted that all the writing work was done by police official in PS and all documents Ex PW 1/A, PW 1/B and PW 1/C were signed and prepared in PS.
27. In the case in hand, the seizure memo was prepared before registration of FIR. However, seizure memo Ex PW 1/B contains the FIR number on the same but there is no explanation furnished by prosecution, as to how and under what circumstances, the same has appeared. The same causes reasonable doubt in the prosecution story as held in the judgment of Giri Raj Vs. State 83 (200) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as :
"The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This give rise to two inferences that either the FIR (Ex.PW2/a) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situation, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the FIR no. 268/19 State VS. Chetan @ Shailender 1819 contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant". The same view was adopted in the case of Mohd. Hashim. Appellant Vs. State 2000 CRI.L.J. 15010 Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 200 CRI.L.J.114.
CONCLUSION
28. Being guided by abovesaid case law, the possibility of false implication of the accused in the instant case by the police officials can not be ruled out beyond doubt. Further, not an iota of evidence has been adduced to prove that accused created a fear in the mind of the victim with the help of the blade.
29. The aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged against the accused beyond reasonable doubt, whereby the accused has become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused, whereby the accused is acquitted of the charges levelled against him.
Digitally signed SHEFALI by SHEFALI
SHARMA
SHARMA Date: 2019.12.09
16:04:47 +0530
Announced in the open court (SHEFALI SHARMA)
on 9.12.2019 ACMM01(C)/THC/Delhi
9.12.2019
FIR no. 268/19 State VS. Chetan @ Shailender 1919