Delhi District Court
Ravinder S/O Sh. Ram Kumar vs State Of Nct Of Delhi on 1 April, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH) : SAKET NEW DELHI
Criminal Appeal No. 30/13
ID No.: 02406R0029932013
Ravinder s/o Sh. Ram Kumar
R/o H. No. 1856, Vill. Khori,
PS Surajkund, Faridabad, Haryana ... Appellant
Versus
State of NCT of Delhi ... Respondent
Instituted on: 02.02.2013
Judgment reserved on: 25.03.2013
Judgment pronounced on : 01.04.2013
J U D G M E N T
1. This criminal appeal has been preferred on 02.02.2013 against judgment dated 19.12.2012 and order on sentence dated 21.12.2012, both passed by Sh. Ankit Singla, Metropolitan Magistrate (South) on the file of criminal case no. 355/03 of 2012. The case was registered on the basis of charge sheet laid in the said court on 18.07.2012 on conclusion of investigation Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 1 of 15 into FIR No. 182/12of Police Station Saket for offences under Section 379/356/411 IPC. Vide the impugned judgment, the appellant was held guilty and convicted for the three said offences. Vide the impugned order, the learned Magistrate awarded rigorous imprisonment for three years for offence under Section 379 IPC; rigorous imprisonment for two years for offence under Section 356 IPC and rigorous imprisonment for two years for offence under Section 411 IPC. All the sentences were directed to run concurrently with benefit of Section 428 Cr.P.C. also extended.
2. On notice, the respondentState has appeared to contest the appeal.
3. I have heard Sh. Akshaya Kumar Sharma, advocate (from legal aid) for the appellant and Sh. Inder Kumar, Additional Public Prosecutor for the State. I have gone through the trial court record.
4. The case of the prosecution needs to be noted briefly at this stage. It has been alleged that on 08.06.2012, the first informant Smt. Reeta (PW1) was travelling as one of the passengers in car make Indica bearing registration no. DL 8CJ 9591 (hereinafter Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 2 of 15 referred to as "the car") driven by her brother Yatender (PW2) from Delhi to Etawa (Uttar Pradesh) in connection with the birth of a daughter to the wife of said brother Yatender. The other persons also travelling in the same car included Anita (wife of said brother Yatender), her child and Ritesh (PW3), another brother of the first informant. The car had reached the red light traffic signal of Sector3 Pushp Vihar on M. B. Road near Khanpur, some time around 08.20 PM. It is alleged by PW1 that since the child had started crying, she had partially opened the left side window glass of the car. At that moment , the appellant is stated to have come from behind and put his hand inside the window of the car and snatched the ear ornament (Jhumka) worn by PW1 in her left ear with a jerk. This resulted in PW1 sustaining bleeding injury and crying out. The appellant allegedly had snatched away the ear ornament (made of gold) and started running away in the rear direction but was pursued by PW2 and PW3 and apprehended at a distance of about 50 meters. PW1 also claimed to have followed up to the said place where a large public had gathered. The search taken of the appellant at that stage did not result in Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 3 of 15 the stolen ear ornament being recovered.
5. According to the prosecution case, some time after the appellant had been apprehended by PW2 and PW3 as above, ASI Suresh Chander (PW5) accompanied by HC Harkesh (PW4) reached the place during petrolling duty. The appellant was handed over to PW5 (the investigating officer), who recorded the statement of PW1 vide Ex. PW 1/A. In her said statement, PW1 expressed suspicion that the appellant had either thrown away the stolen ear ornament in the process of running away or had swallowed it. PW1 also stated that she was bleeding from her ear and was feeling a lot of pain.
6. On the basis of the above facts, PW1 was sent in the car of her brother PW2 and in the company of PW4 to Trauma Center (of All India Institute of Medical Sciences). According to the charge sheet, a medico legal certificate (MLC) vide no. 313452 was recorded in her respect in Trauma Center of All India Institute of Medical Sciences (AIIMS) at 09.11 PM on 08.06.2012. As per the said MLC, PW1 had suffered a skin deep laceration over left ear lobe.
7. On the statement of PW1, as per the endorsement of the Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 4 of 15 investigating officer (I.O.), the FIR of the case is stated to have been recorded. During the course of investigation that followed, the I.O. prepared the site plan. He arrested the appellant vide arrest memo Ex. PW 1/B at 11.45 PM on 08.06.2012 after personal search vide Ex. PW 1/C.
8. It is the case of the prosecution that during investigation that followed, the appellant was taken to the casualty of AIIMS, 16 minutes past midnight of 0809/06/2012 under the escort of PW4 for medical examination. After the MLC vide no. 58174 had been recorded, he was taken to radiology department, where he was subjected to Xray examination, which was conducted during 01.07 hours and 01.12 hours of 09.06.2012. As per Xray report, purportedly issued under the signature of Dr. Rohit, a single metallic dense opacity was seen in the mid abdomen at the level of L4 - L5. It was suspected to be a case of ingested foreign body (besides a metallic zip).
9. The prosecution case further is that the appellant was taken to casualty of AIIMS again at 08.46 hours on 09.06.2012. Another MLC vide no. 58228 was recorded on the basis of examination by another doctor on duty. This MLC indicates that the Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 5 of 15 appellant was again subjected to Xray examination. Four Xray reports were filed with the charge sheet, each referable to the second MLC as mentioned above. One Xray report indicated that three metallic dense opacities had been seen, suspected to be a case of ingested foreign bodies. The second of the said X ray reports stated that two metallic dense ratio opacities were seen, again suspected to be case of ingested foreign bodies. Same is the observation recorded in the third report, while the fourth report stated that metallic dense ratio opacity was seen in pelvic region, again suspected to be a case of ingested foreign body. The first of these reports relates to Xray examination conducted some time around 03.14 hours and the last at 09.34 hours of 09.06.2012.
10.The prosecution case is that the appellant was kept under observation in casualty from 09.06.2012 onwards. He passed stool at 05.30 hours and ejected along with faeces one piece of the stolen ear ornament, which was seized vide formal memo Ex. PW 5/A by the I.O. He again passed stool at 06.30 P.M. on 11.06.2012 and ejected another piece of the stolen property which was again seized by the I.O. vide memo Ex. PW 5/B. Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 6 of 15
11. Both the pieces of ear ornament, thus recovered, had been sealed at the time of seizure. It is the prosecution case that the sealed parcels were produced before the Metropolitan Magistrate with the request for test identification proceedings (TIP). The TIP of the case property was presided over by Sh. Rajinder Singh, Metropolitan Magistrate04 (South) on 26.06.2012. It is the case of the prosecution that, in the said proceedings, PW1 correctly identified the said two pieces of earornament.
12.On the basis of evidence to above effect, the charge sheet was laid seeking trial of the appellant for offences under Section 356/379/411 IPC. The Magistrate took cognizance vide the order dated 07.08.2012 and issued process. The appellant was put to trial on the basis of charges framed for the said offences on 07.08.2012 to which he pleaded not guilty.
13.In the course of evidence, the prosecution examined five witnesses including Reeta (PW1), the first informant; Yatendra (PW2), eye witness; Ritesh (PW3), another eye witness; HC Harkesh (PW4), who joined investigation with the IO and ASI Suresh Chand (PW5), the investigating officer. Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 7 of 15
14. Midway the stage of recording prosecution evidence, the Magistrate after examination of PW1 to PW3 had been concluded, proceeded to record the statement of the appellant under Section 294 Cr.P.C. The record of proceeding prepared reads as under: "Statement of accused Ravinder s/o Ram Kumar u/s 294 Cr.P.C.
Without oath I am not disputing the genuineness of
1. Registration of FIR
2. MLCs
3. Xray report
4. TIP proceedings RO&AC MM/Saket 30/08/12"
15.The corresponding order of the said date reads as under : "30/8/12 Pr. Ld. APP for State Accused produced from JC.
No PW present despite service. Put up for PE on 2/9/12. Reh. 13/9.
MM 30/8
At this stage, accused produced from JC again. PW1, 2 & 3 are examined & discharged. St. u/s 294 Cr.P.C. recorded separately. Put up for PE on 27/9/12.
MM 30/8"
16. There is no order recorded at any stage by the learned Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 8 of 15 Magistrate indicating a request of the prosecution for the appellant (accused) to be called upon to admit or deny the genuineness of the documents relied upon in the trial against him. There is no indication of list of such documents (as were to be subjected to admission/denial) having been submitted for such purpose. There is no order recorded either to the effect that the formal proof of such documents had been dispensed with.
17. The impugned judgment shows that the learned Magistrate took into consideration the FIR, all abovementioned MLCs, Xray reports and the TIP for reaching the conclusions against the appellant.
18.During the hearing on the appeal at hand, one major grievance raised by the appellant is that he is not aware as to what were the contents of the MLCs, sdmission about the genuineness of which was recorded by the learned Magistrate on 30.08.2012. It has been argued that there are three MLCs on record, one of PW1 and two of the appellant. The counsel for the appellant submitted that the expression "MLCs" as used in the statement purportedly recorded under Section 294 Cr.P.C. was vague and Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 9 of 15 nonspecific. He further argued that the charge sheet was accompanied by five Xray reports whereas in the statement attributed to the appellant as recorded on 30.08.20122, there is reference to a single document (Xray report). He argued that it is not fair to use all the five reports against the appellant.
19. It is also the submission of the counsel for the appellant that section 294 Cr.P.c. only permits formal proof of documents to be dispensed with if the genuineness of the same is admitted by the accused. He pointed out that in the statement attributed to the appellant under Section 294 Cr.P.C., it has been indicated that the appellant was "not disputing" the "registration of FIR".
His submission is that the registration of FIR is an event, or a fact, and not a document. It is the copy of FIR placed with charge sheet which is a document which only could have been put to the accused under Section 294 Cr.P.C. for admission or denial. His arguments about "TIP" also referred to in the above mentioned record of proceedings are on similar lines.
20.The manner in which the evidence respecting FIR, MLCs, X ray reports and TIP has been collected during the trial and the recording of formal deposition of concerned witnesses Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 10 of 15 dispensed with has left much to be desired.
21. Section 294 Cr.P.C. reads as under: "294. No formal proof of certain documents. (1) where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved."
22.The aim of the provision is to ensure speedy trial by cutting short the procedural formalities. The short cut is not meant to compromise with the principles of fair trial and right of fair Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 11 of 15 hearing to the accused. It is a beneficial provision which can be used as a matter of routine by prosecution to shorten the length of trial and enhance the cause of justice. The proviso to Section 294(3) Cr.P.C. as well as Section 58 of Evidence Act, nonetheless give power to the court to require a fact to be proved otherwise, even though admitted.
23.Undoubtedly, the documents in the nature of FIR, MLCs, Xray reports, as also TIP proceedings, are covered within the meaning of the expression "document" as used in Section 294 Cr.P.C. Without doubt, a person facing criminal trial as an accused, or his pleader, can be called upon under Section 294 Cr.P.C. to admit or deny the genuineness of such documents and in case any of such document is admitted, the opposite party (the prosecution in the case at hand) is relieved of the responsibility to produce "formal proof of such document".
Section 294(2) Cr.P.c. clearly stipulates that where the genuineness of any document "is not disputed", i.e. where a document has been admitted under Section 294(1) Cr.P.C., such document "may be read in evidence" in the trial "without proof of the signatures of the person to whom it purports to be Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 12 of 15 signed".
24.If a document, not admitted under Section 294 Cr.P.C., is to be proved, the procedure requires the corresponding witness to be called in, and examined in court, in the presence of the accused with reference to such document. Upon the witness affirming on oath the necessary facts, the document is admitted into evidence and if the witness has given formal proof about his signatures or about it having been brought into existence, as per prevailing practice, the document is given a label in the form of an exhibit. It is part of practice in the criminal courts that the document, thus proved during oral testimony of a witness, when exhibited, this fact is duly authenticated on the face of the document by the Presiding Judge/Magistrate. It is the authentication of the document, thus given exhibit number, which completes the exercise and ensures that the document can be later properly referred to.
25. In my considered view, the short shrifting of the proceedings by improper application of Section 294 Cr.P.C., particularly in the context of such important evidence as the MLCs and Xray reports in respect of the appellant, as indeed the TIP, may have Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 13 of 15 brought about some distortion. Given the fact that the said part of the evidence has not been adduced in accordance with law, the prosecution cannot avail of the same. Given the sequence of events which led to the alleged discovery of the stolen property in pieces, having been found in the body of the appellant, exclusion of such all important material from consideration would neither be just nor fair nor proper. In these circumstances, the proper course is for the impugned judgment to be set aside and the matter remanded to the trial court for further proceedings in accordance with law. For removal of doubts, if any, it is directed that the learned Magistrate shall issue necessary processes to secure the presence of the corresponding witnesses for prosecution and give opportunity for their evidence to be brought on record as per law. If recourse is to be had to the provision of Section 294 Cr.P.C., the learned Magistrate must follow and adhere to the requirements of law on the subject.
26.The appeal stands disposed of with above directions/observations. The impugned judgment and order on sentence are, thus, set aside. The case is remanded to the Crl. Appeal No. 30/2013 Ravinder Vs. State Page No. 14 of 15 Metropolitan Magistrate for further proceedings in accordance with law.
27. The trial court record along with copy of the judgment be sent back for further proceedings.
28. The appellant shall appear (be produced) before the trial court on 15.04.2013.
29.The file of the appeal be consigned to record room.
Announced in open Court today
on this 01st day of April, 2013 (R.K. GAUBA)
District & Sessions Judge (South)
Saket/New Delhi
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