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State vs . Shyam Singh, Fir No. 705/97, U/S : ... on 28 January, 2013

State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town


            IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN 
                               MAGISTRATE, ROHINI COURTS, DELHI. 


FIR No. 705/97
PS: Model Town
U/S 356/379/411 IPC
State Vs. Shyam Singh


                                                                JUDGMENT:

A.       SL. NO. OF THE CASE  :         848/06
B.       DATE OF INSTITUTION  :         19.07.1999
C.  DATE OF OFFENCE           :         01.11.1997
D.  NAME OF THE               :         Smt. Neelu Bhatia
         COMPLAINANT                    W/o Sh. Sunil Bhatia
E.       NAME OF THE ACCUSED  :     Shyam Singh 
                                        S/o Sh. Raghuvir Singh
F.       OFFENCE COMPLAINED OF:         U/s 356/379/411 IPC
G.       PLEA OF ACCUSED      :         Pleaded not guilty. 
H.       FINAL ORDER          :         Acquitted
I        DATE OF SUCH ORDER   :         28.01.2013

          Brief Statement of Reasons for Decision:

1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the charge­sheet are that on 01.11.1997, a complaint regarding chain snatching was made by the complainant Smt. Neelu Bhatia. She alleged that on 01.11.1997 at about 2:00 pm, in front of her house i.e. Z ­3, Model Town, Delhi, she was purchasing vegetables from a street vendor and at that time two unknown boys came on a scooter and snatched her chain alongwith a pendent. After committing Page No. 1 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town said offence, said two unknown boys escaped from the spot. Subsequently, on 03.11.1997 the accused Shyam Singh was apprehended by the police officials of PS Shalimar Bagh, while they were on vehicle checking duty at AL­T point. The accused came on a two wheeler scooter bearing no. L8S 5148 and on seeing the police officials, he tried to slip away from the spot after leaving said scooter behind. But he was chased and apprehended. On his personal search, two chains including stolen chain of this case was recovered. The accused disclosed about the commission of the present offence and he confessed that he committed the present offence alongwith his associate namely Niab Ahmed. Thereafter, the stolen chain of the present case was sealed with the seal of SK and the same was deposited in the Malkhana. The accused was arrested. Thereafter, on 10.02.98 the TIP of the case property/stolen chain was conducted by Sh. Harish Dudwani, the then Ld. MM and the complainant Smt. Neelu Bhatia correctly identified her chain in the said TIP proceedings. The proceedings u/s 82/83 Cr.P.C were initiated against the co accused Niab Ahmed. However, the fate of the said proceedings have not yet been intimated to the court. On conclusion of investigation, the present challan against the accused Shyam Singh U/s 356/379/411/34 IPC was filed in the court.

2. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge u/s 356/379/411/34 IPC was made out against the accused namely Shyam Singh. Accordingly, on 06.03.2000, the charge was framed by the Ld. Predecessor of this court. Accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.

3. In order to substantiate its case, the prosecution examined Page No. 2 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town nine witnesses.

4. Sh. Harish Dudani (PW1), the then Civil Judge, Tis Hazari Courts, Delhi, has proved the TIP proceeding of case property as Ex. PW­1/A. He has testified that the complainant Smt. Neelu Bhatia correctly identified her chain/case property in the TIP proceedings that were conducted by him on 10.02.98.

5. Smt. Neelu Bhatia (PW2) is the complainant and she has proved her complaint dated 01.11.97 as Ex.PW­2/A, regarding snatching of her gold chain alongwith a pendent by two unknown boys. However, she failed to identify the accused to be the perpetrator of the present offence. Thereafter, she was cross­ examined by the Ld. APP for the State but despite that nothing incriminating against the accused could be extracted from her testimony as she persisted that she cannot identify the accused. She brought her chain in the court, that was got released by her on superdari and the same is Ex.P1. In her cross examination, she has testified that on the next date of incident i.e. on 02.11.1997 she was called at the PS and the police officials at PS showed her chain that was identified by her to be her stolen chain. The said chain was not returned to the complainant by the police officials on the said date on the pretext that the same can be returned to her only after the orders of the court. Subsequently, the said chain was identified by her in the court during the TIP proceedings.

6. Ct. Bir Singh (PW3) is a formal witness and he accompanied the IO SI Rajesh Kumar on 01.11.1997 to the place of incident i.e. Z­3, Model Town­III, Delhi, where they met the complainant Smt. Neelu Bhatia, who gave a written complaint regarding her chain snatching. The rukka was handed over to me and he formally got the present FIR lodged at PS Model Town.

7. Ct. Harbir Singh (PW4) is also a formal witness, who Page No. 3 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town handed over DD no. 10A dated 01.11.1997 to IO SI Rajesh for investigation. ASI Daya Nand (PW5), registered the present FIR. The said witness has proved the copy of present FIR as Ex.PW5/A.

8. ASI Darshan Kumar (PW6) has deposed that on 03.11.1997, he was posted as MHCM, PS Shalimar Bagh and SI Suresh Kumar got deposited the case property of FIR No. 731/97, PS Shalimar Bagh i.e. Scooter and five gold chains with him. He has further deposed that on 27.11.97 the case property of present case was transfered to PS Model Town vide RC No. 160/97 by SI Rajesh Kumar to the malkhana of PS Model Town, Delhi. He has proved the relevant portion of register No. 19 as Ex. PW6/A.

9. HC Shambhu Dayal (PW7) is one of the alleged recovery witnesses of stolen chain from the accused. He has deposed that on 03.11.1997, he alongwith SI Suresh, HC Hari Om and Ct. Virender were on vehicle checking duty at AL T point. He has further deposed that they stopped accused Shyam Singh, who was on a scooter bearing No. L8S 5148. He has further deposed that IO asked about the documents of the scooter, but he ran away towards AL market. They chased and apprehended the accused. He has further deposed that in his disclosure statement, the accused disclosed that the said scooter has been stolen from the area of PS Model Town, Delhi. He has further deposed that during personal search of the accused, two broken gold chains were recovered from his pocket. He has further testified that the said gold chains were seized by the IO SI Suresh Kumar after sealing it with the seal of SK. He has correctly identified the accused.

10. ASI Hari Om (PW8) is also one of the recovery witness of the case property. He has deposed on the similar lines as that of PW­7 HC Shambhu Dayal. Therefore, his testimony is not repeated herein for the sake of brevity and to avoid repetition.

State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town

11. SI Rajesh Kumar (PW9) is the IO of the case and he has deposed that on 04.11.1997 he received DD no.8A from DO regarding apprehension of the accused Shyam Singh alongwith the case property of the present case in case FIR no. 731/97, PS Shalimar Bagh, where he disclosed about the commission of the present offence. He further deposed that he formally arrested the accused on 11.11.97 and he got the case property transfered to the Malkhana of PS Model Town. He further deposed that he got the TIP of the case property conducted through the concerned court. Thereafter, PE was closed.

12. Statement of the accused U/s. 313/281 Cr.P.C. was recorded. All the incriminating evidence were put to the accused for seeking his explanation. In the said statement the accused has stated that he has been falsely implicated in the present case and he has further stated that he is innocent. He has further submitted that the case property Ex.P1 was not recovered from his possession and same was falsely planted upon him. He preferred not to lead evidence in defence. Accordingly, the matter was listed for final arguments.

13. I have heard Ld. APP for the State and the accused. I have carefully perused the case file.

14. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.

15. In order to substantiate its case the prosecution is required to prove the following ingredients as mentioned U/s 356/379/411 IPC:

(i) That subject­matter of the offence is movable property.

State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town

(ii) it was moved out of the possession of any person without his consent;

(iii) The accused used criminal force on the complainant with an intention to move the movable property;

(iv) The stolen property was received or retained by the accused;

                     (V)                The accused had knowledge and reason to 
                                        believe the same to be stolen property; and
                     (VI)               The accused did it with a dishonest intention;

16. In the instant case PW2 Smt. Neelu Bhatia is the most vital and relevant witness for indicting the criminal liability of the accused u/s 356/379 IPC. The said witness is the sole eye witness of the incident of chain snatching. She has proved the incident of chain snatching that took place on 01.11.97 at around 1:30/2:00 pm in front of her house. She has also proved her complaint dated 01.11.97 as Ex.PW2/A. However, she failed to identify the accused to be the perpetrator of the present offences. She was cross­examined by Ld. APP for the State but despite that nothing incriminating against the accused could be extracted from her testimony. The prosecution, through the testimony of the complainant /PW­2 Smt. Neelu Bhatia has proved the incident of chain snatching of the complainant beyond any reasonable doubt. However, the identity of the accused has not been established. The identity of the accused in a criminal trial is of paramount importance and no person can be indicted for criminal liability, unless his identity is established beyond any shadow of doubt. Thus, merely by establishing the incident, the accused cannot be convicted, unless he is identified to be the culprits of the said offence.

17. Even as per the story of the prosecution, the only witness who could have identified the accused is the complainant. But in Page No. 6 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town the instant case she has not identified the accused. The disclosure statement of the accused is not admissible in evidence as it is barred u/s 25/26 of Evidence Act, 1872. Therefore, there is not even an iota of incriminating evidence on record against the accused to convict him for the offences u/s 356/379 IPC. Accordingly, the accused Shyam Singh stands acquitted for the offence punishable u/s 356/379 IPC.

18. Insofar as allegations against the accused qua section 411 IPC are concerned, the prosecution has alleged that on 03.11.97 the accused was apprehended by the police officials of PS Shalimar Bagh with the stolen gold chain of this case i.e. two days after the incident of chain snatching. The recovery witnesses are police officials and they have fully supported the prosecution version regarding recovery of gold chain from the possession of the accused. The accused can be convicted u/s 411 IPC only if the prosecution manages to prove that the accused was in possession of stolen property i.e. gold chain on 03.11.97. The complainant PW2 Smt. Neelu Bhatia in her cross examination has categorically testified that on the next date of incident i.e on 02.11.97, she was called at PS and on the said date she identified her chain in the PS. The said testimony of the complainant falsifies the entire story of the prosecution regarding recovery of stolen gold chain from the accused. If the stolen gold chain was already recovered on 02.11.97, there was no occasion for the accused to possess it on 03.11.97 and therefore, the possibility of its alleged recovery from the accused on 03.11.97 is non existent.

19. Besides that, the recovery witnesses have failed to join any public witness at the time of alleged recovery of the stolen chain from the accused. They did not make any efforts to join the public persons from nearby located houses. It is also an admitted fact that the alleged place of recovery is a residential Page No. 7 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town colony. Had the recovery witnesses would have made effort they could have easily joined public/independent witness at the time of recovery. However, in their wisdom they preferred not to join any public witness despite of their availability. The recovery witnesses have also failed to advance any justifiable reason for non joining of independent/public witness at the time of alleged recovery of the car from the accused. Hence, story of the prosecution is further shrouded in suspicion.

The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witness that is examined by the prosecution in the present case is a police witness, who is interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness at the time of alleged recovery of the car creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court

20. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002]SUPP1SCR581wherein it is held:­ ".........50 Apart from the versions of eyewitnesses Page No. 8 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ext. P­19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account."

I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003CriLJ2525 Hon'ble Supreme Court has held:

"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 1 does not inspire confidence and it will be highly unsafe to place reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."

21. In the wake of above discussion, the prosecution has not only failed to cogently prove the factum of the recovery of the stolen chain from the accused but in view of the testimony of the Page No. 9 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town complainant, the story of the prosecution regarding recovery of the stolen chain from the accused has been demolished. Thus, the prosecution case suffers from material and fatal infirmities and therefore, the accused is entitled to benefit of doubt.

22. In view of the above discussion, the accused namely Shyam Singh is acquitted for the offence U/s 356/379/411 IPC. He is directed to furnish fresh personal bond in a sum of Rs. 15,000/­ with one surety in like amount, in accordance with Section 437A Cr.P.C. Same are furnished and they are accepted till next six months.

File be consigned to record room after due compliance.

Announced in the open court on 28.01.2013.

(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI/DELHI Page No. 10 State Vs. Shyam Singh, FIR No. 705/97, U/s : 356/379/411 IPC, PS: Model Town FIR No. 705/97 PS: Model Town U/S 356/379/411 IPC State Vs. Shyam Singh 28.01.2013 Present: Ld. APP for the State.

Accused Shyam Singh on bail.

Vide my separate judgment announced in the open court today, the accused Shyam Singh stands acquitted for the offence punishable U/s 356/379/411 IPC.

He is directed to furnish fresh personal bond in a sum of Rs. 15,000/­ with one surety in like amount, in accordance with Section 437A Cr.P.C. Same are furnished and they are accepted till next six months.

File be consigned to Record Room after due compliance.

(Dheeraj Mor) MM/Rohini/Delhi/28.01.2013.