Delhi District Court
State vs . Pradeep Fir No.401/98 Rs on 8 May, 2007
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IN THE COURT OF DR. ARCHANA SINHA:
METROPOLITAN MAGISTRATE: KARKARDOOMA COURTS:
DELHI
FIR NO.: 401/98
P.S. : Krishna Nagar
U/s : 356/379 IPC
1. Sl. No. of the case : 192/99
2. Name of the complainant : State
3. Date of commission of offence : 03.08.1999
4. Name of accused : Pradeep
s/o Rai Swaroop
R/o 278/6, Gali no. 8,
Jwala Nagar, Shahdara,
Delhi.
5. Offence complained of or proved : 356/379 IPC
6. Plea of guilt : Accused pleaded not
guilty
7. Final order : Acquittal
8. Date of such Order : 8.5.2007
JUDGEMENT
1. The brief resume of the prosecution case is that the accused Pradeep s/o Sh. Rai Swaroop on 30.8.98 at about 2.20 am at Jagat Puri State vs. Pradeep FIR No.401/98 RS 2 Red Light chowk in moving bus plying at route no. 312, the accused used criminal force to commit the theft of gold chain worn by the complainant Neelam Gupta and by using such criminal force he committed theft of a golden chain belonging to complainant Neelam Gupta thereby committed offence punishable u/s 356/379 IPC within the cognizance of this court.
2. On the above stated allegations of the prosecution, ld.
predecessor court of Sh. Kanwaljeet Arora, the then Ld. MM:Shahdara, Delhi, on finding prima facie case, framed charges against the accused Pradeep Kumar vide order dated 23.7.99 for the offence punishable u/s 356/379 IPC to which accused had not pleaded guilty and claimed trial. Thus, the trial had commenced.
3. For proving its case, the prosecution has examined total number of five Pws as per the list of witnesses.
Out of these 5 prosecution witnesses, PW 1 HC Mool Chand was the formal witness who was the duty officer on the day of State vs. Pradeep FIR No.401/98 RS 3 occurrence and deposed in the court that on the complaint of complainant Neelam Gupta, he recorded formal FIR No. 401/98, copy of which are Ex. PW 1/A. Similarly, PW2 Lady Ct. Rekha was also formal to the extent that she had participated in the investigation of the matter as she was present in the PS at the time of recording of FIR and she was a witness to part investigation as she deposed in the court that complainant had produced the accused Pradeep Kumar before duty officer at the time of complaint and reported that the accused had snatched her chain and was apprehended on the spot. Thus, This witness was also treated as formal witness as she has nothing to say about the occurrence and reproduced the version stated by the complainant in his presence.
Whereas, PW 3 Neelam Gupta was the material star witness of the prosecution as she was not only the complainant but the owner of the stolen property and also was an alleged eyewitness who allegedly apprehended the accused after commission of the offence.
Thus, this witness was material to prove the guilt of the accused, occurrence as well as the eye witness to identify the accused State vs. Pradeep FIR No.401/98 RS 4 as well as case property and as none of the independent witness was joined by the prosecution regarding occurrence, thus the case of the prosecution is basically based on the sole testimony of witness Neelam Gupta, examined as PW 3 as other witnesses were witnesses of circumstantial evidence only and this witness was directed evidence on record.
Whereas, PW 4 Ct. Rajesh and PW 5 SI Mukesh Tyagi were the witnesses of investigation and PW 5 SI Mukesh Tyagi was the investigation officer to whom the investigation was entrusted upon on recording of FIR by HC Mam Chand and PW 4 Ct. Rajesh was the accompanying investigating persons who participated in the investigation with the IO SI Mukesh Tyagi, on receiving the FIR in this case, who reached at the spot with the complaint and IO prepared the site plan as deposed by him, in the presence of this witness and arrested the accused. Thus, to this extent, both these witnesses were formal witnesses as they were to prove the documents prepared by the IO during the course of investigation and also to prove the circumstances in which the accused was arrested in this case.
State vs. Pradeep FIR No.401/98 RS 5
4. During trial, documentary evidence was also produced to support the ocular evidence, this list includes the copy of FIR Ex.PW 1/A, recovery memo Ex.PW 2/A, Personal search memo Ex.PW 4/A, Site plan Ex.PW 5/A and information of arrest Ex.PW 5/B. That is all for prosecution evidence.
5. Statement of accused was recorded U/s 313 Cr.P.C wherein, when all the incriminating evidence and documents put to him, one by one, and he denied all as incorrect and submitted that he was falsely implicated in this matter and that he is innocent. In support of his case, he wanted to lead defence evidence but did not lead any evidence.
5. Ld.APP for the State has submitted that the complainant has supported the case of prosecution on the point of identification of the accused and of the case property and also the proved the occurrence as well as the allegations against the accused as the accused was apprehend by the complainant on the commission of the theft on the spot.
State vs. Pradeep FIR No.401/98 RS 6 However, Ld. Counsel Sh. Arvind Bhardwaj had vehemently countered the prosecution case on many counts, particularly, on the ground of improper investigation, nonexamination of material police officials who helped the complainant in apprehension of the accused and also on the ground that the case property in this case was not intact, in view of the court observation on the case property during trial and it was also pleaded by the Ld. defence counsel that the accused was falsely implicated in this case of chain snatching that was committed by some other person and to solve the case, the police has arrested the accused, when the real culprit, snatcher, had already absconded from the spot. In support of his defence, Ld. counsel has also submitted that number of passengers were available at the spot where the offence had committed but no independent witness was joined and investigation was conducted by the person who recorded the formal FIR but did not utter a single word regarding his role in the investigation in the matter except to authenticate the registration of the case. Thus, the request for benefit of doubt on the above grounds, is made on behalf of accused.
State vs. Pradeep FIR No.401/98 RS 7
6. On appreciation of evidence on record in light of the contentions of both parties, it is observed that prosecution has examined only 5 prosecution witnesses and in the list of witnesses the Malkhana Mohrer with whom the case property was deposited was not cited as witness nor he was produced during the trial by the prosecution to prove the intactness of the case property and also intactness of the seal on the case property and nonintactness of the case property is being challenged on the ground of court observation made on the case property at the time of examination of complainant Smt. Neelam Gupta as PW.3
7. It is observed that as per the prosecution story at the time of snatching of case property i.e gold chain, it was broken and even the seizure memo Ex.PW 2/A mentions that at the time of production of the case property by the complainant with the police station the chain was broken. But it is clear from the record that at the time of production of the chain in the court, the gold chain was intact and it was not broken. Thus intactness of the case property comes under the shadow of State vs. Pradeep FIR No.401/98 RS 8 doubt and failure to produce the Malkhana Mohrer to prove as to whether the case property was ever deposited with the Malkhana or not, in these circumstances, nonexamination of Malkhana Mohrer and non production of register No. 19 to ensure the nature of case property at that time, it was deposited to the Malkhana, is fatal tot he prosecution case.
To this extent the contention of ld.counsel for the accused is upheld regarding dount on the production of case property in the court as to whether it was the same as mentioned in the complaint of the complainant.
8. Further, it is observed that complainant PW.3 Smt. Neelam was sole witness on whose shoulders, the case of the prosecution rests and being the interested witness of the prosecution, her testimony needs close scrutiny to the highest extent to reach to the right conclusion of the trial as she was the only eye witness of the occurrence as none of the independent witness, though available, joined by the police during the investigation.
State vs. Pradeep FIR No.401/98 RS 9
9. On the meticulous appreciation of all the depositions of the complainant Smt. Neelam Gupta, it was observed that the occurrence was described by her in the following manner that she was traveling in the bus of route No.312 and at about 2.15 P.M her gold chain was snatched by some one who got down and she ran away and chased the accused with the help of police officials and accused was apprehended; her Gold chain was recovered from his possession; then in a police vehicle, she had taken the accused to P.S Krishna Nagar for registration of the case.
Thus, as per depositions of the complainant she produced the accused with the help of police persons and in a police vehicle, in the police station where her statement/ complaint was recorded by the duty officer. The case property was kept in match box. Pullanda was sealed with the seal and her statement was recorded by Duty officer itself. Accused was arrested there upon. To this extent when the other ocular evidence was compared, the story of the prosecution comes under the shadow of doubt on many counts, making one set of evidence believed and the other set of evidence disbelieved.
State vs. Pradeep FIR No.401/98 RS 10
10. On appreciation of evidence of complainant Neelam Gupta on record, it is observed that accused was apprehended with the help of some police officials and she was taken along with the accused by the police in police gypsy to the police station Krishna Nagar. But surprisingly neither any such police officials were made witnesses to the occurrence though they were produced during the trial to disclose the manner of occurrence though they were the eye witnesses in whose presence, accused was apprehended, nor they were cited in the list of witnesses, nor their names were ever disclosed either during the investigation or during the trial. To this extent, prosecution story has clear dent nonrepairable and unexplained.
11. It is further observed that contrary to the version of the complainant, PW3 IO SI Mukesh Tyagi had deposed about part of his investigation that the investigation was entrusted upon him on receiving of the copy of FIR by H.C Mam Chand who recorded the FIR in this case. As per the IO, Mukesh Tyagi, examined as PW.5, on receiving of State vs. Pradeep FIR No.401/98 RS 11 copy of FIR, he proceeded for the investigation of matter along with complainant Smt. Neelam Gupta with the accused and one Constable Rekha and one const. Rajesh went to the spot where at the instance of complainant he prepared the site plan and arrested the accused there and then prepared the personal search memo vide memo Ex.PW. 4/A and he also prepared the information regarding arrest that was exhibited as Ex.PW5/B. Thus, as per this witness all these proceedings were conducted on the day of occurrence on 30.8.1998 but when the complainant was crossexamined on these aspects she testified in the court that IO/SI Mukesh Tyagi had never conducted any investigation on the spot, contrary to testimony of the IO/SI Mukesh examined as PW.5. Rather as per the testimony of PW.3 accused was apprehended by her with the help of police officials, and she was taken in a police gypsy along with the accused by the police officials toP.S Krishna Nagar where on lodging of the complaint by her, accused was arrested there by duty officer and then the case property was sealed and seized by the person who recorded formal FIR of this case and the person is the H.C Mam Chand , as per record.
State vs. Pradeep FIR No.401/98 RS
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Further, on comparison of the testimony of PW.3 with the
depositions of H.C Mam Chand examined as PW 1, it is observed that PW.1 has not deposed anything regarding conducting of such investigation in this case for seizing of the case property and arresting of the accused. He had only testified in the court that on the complaint of complainant Smt. Neelam, he formally recorded the FIR only. Also, to the contrary PW.2 Const. Rakha who was present at the time of registration of the FIR, as per the record, H.C Mam Chand had conducted all most all the investigation i.e recording of FIR, Seizing and sealing of the case property and arrest of the accused. But, to the depositions of this witness PW.4 Ct. Rajesh and PW.5 SI Mukesh Tyagi were absolutely contrary regarding the arrest of the accused.
Further when these facts compared with the documents on record, seizure memo of case property Ex. PW 2/A was prepared by H.C MamChand in the presence of Neelam Gupta and Ct. Rakha and site plan was prepared by SI Mukesh Tyagi i.e at the instance of complainant and complainant has denied preparing of such site plan in State vs. Pradeep FIR No.401/98 RS 13 her presence, by SI Mukesh Tyagi on the spot.
12. Further, on the point of arrest, date mentioned in the arrest memo, regarding the arrest is 31.8.98. The site plan is of dt. 30.8.98 but with a cutting clearly showing that 31.8.98 was changed to 30.8.98. Personal search memo mentioned no date. Thus, the date of the arrest of the accused also comes under the shadow of doubt leading to the inference that defence taken by the ld. counsel for accused appears more sound to the facts on record, stated in the prosecution story, as ti was the defence that one gold chain was snatched by some person in a bus and present accused was arrested in the police station to solve the case.
13. Further it is observed that the case of the prosecution comes under the shadow of doubt on many counts for the intactness of the case property and also for the date, place and arrest of accused and also regarding the presence of person who conducted the investigation in this case and who arrested the accused on registration of the case .
State vs. Pradeep FIR No.401/98 RS 14 The doubt further widened when the material police witnesses in whose presence, and with whose help the accused was allegedly apprehended, were kept aback during the trial. Even their names were not disclosed. Though they were material, eye witnesses of the occurrence and it is a well settled principle of law that an adverse inference can be drawn for keeping material witnesses aback and unexamined during the trial, that in case of their production in the court, they may not support the prosecution case . Reliance is placed upon authority cited as AIR 1975 SC 1453 wherein it was observed that :
"It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case"wherein it was held :
17. Therefore, on the basis of the above observations on law and facts, the court is of the considered view that prosecution could not prove its case against the accused for the offences punishable u/sec.
State vs. Pradeep FIR No.401/98 RS 15 356/379 IPC beyond reasonable doubt because of the ocular evidence of the witnesses were found full of infirmities, doubtful and untrustworthy when compared with the other evidence on record.
Thus by giving a benefit of doubt, on the basis of principles of criminal justice system, the accused Pradeep Kumar is acquitted from the charges levied against the accused Pradeep Kumar for the offences punishable u/sec. 356/379 IPC. PB/SB furnished by the accused stands cancelled. Surety is discharged. File be consigned to record Room. ANNOUNCED IN THE OPEN COURT ON 8th Day of May 2007 (DR. ARCHANA SINHA) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS : DELHI State vs. Pradeep FIR No.401/98 RS