Delhi District Court
State vs . Rajkumar & Ors. on 14 November, 2011
State vs. Rajkumar & Ors.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 72/08
FIR No. 332/08
ID No. 02403R0846472008
PS: Amar Colony
U/s 394/397/411/34 IPC
State Vs. 1. Rajkumar
S/o Sh.
2. Samsuddin
S/o Sh.
Date of institution :
Date when arguments were heard. :
Date of Judgment :
JUDGMENT
The prosecution case is that on 04.09.2008, on receipt of DD No. 12 regarding the snatching of ear rings (kundal) of a lady, HC Ayub Khan SC No. 72/08 1/13 State vs. Rajkumar & Ors.
alongwith Ct. Budh Ram went to the spot i.e Aastha Kunj, Opposite Canara Bank, Captain Gaur Marg, New Delhi where he came to know that injured lady had been removed to Trauma Centre, AIIMS Hospital by a PCR van. In the meantime, Inspector Rajkumar Saha also reached the spot and instructed HC Ayub Khan and Ct. Budh Ram to remain at the spot and he left the spot for Trauma Centre, AIIMS Hospital. Inspector Rajkumar Saha alongwith Ct. Naan Babu reached the Trauma Centre, AIIMS where injured Smt. Sudha was found admit vide MLC No. 135003. Inspector Rajkumar Saha had recorded the statement of injured Smt. Sudha after taking the permission of doctor and thereafter came back to the spot. After some time, injured Smt. Sudha also reached the spot and the IO prepared a site plan Ex. PW15/B at her instance. On the basis of the statement of injured Smt. Sudha, the Investigating Officer sent the rukka to PS through Ct. Naan Babu which led to the registration of FIR for the offence under section 394/397/411/34 IPC.
2. During the investigation, the doctor had opined the nature of injuries on the person of the complainant Smt. Sudha as 'simple' caused by sharp object.
3. After completing the investigation, the charge sheet was filed and on 09.01.2009, both the accused were charged for the offence under Section 394 IPC read with Section 34 IPC, Section 397 IPC read with SC No. 72/08 2/13 State vs. Rajkumar & Ors.
Section 34 IPC and Section 411 IPC read with Section 34 IPC. They had pleaded not guilty and claimed trial.
4. To prove its case, the prosecution had examined 15 witnesses in the following sequence: 4.1 PW1 is ASI Dharamvir, who had registered the FIR Ex. PW1/A. 4.2 PW2 is the complainant Smt. Sudha, who deposed that on 4th December of some year, she was present in Okhla Mandi at 7.15 am when two persons had shut her mouth forcibly and took away her kundal (ear rings). She deposed that she became unconscious after the incident. The witness had identified the ear rings and nose pin correctly in the Court but was not able to identify the accused persons as well as the Sua (metal hook) by which she was hit.
4.3 PW3 is HC Ved Prakash, who deposed that on 04.09.2008, a secret informer had informed the IO that a person of the description of accused was standing at Sambhu Dayal Park, Near Annapurna Factory. He deposed that the IO thereafter prepared a raiding party and they all reached there. He further deposed that a person namely Rajkumar Mishra was overpowered from there who admitted his involvement in the robbery with the complainant Smt. Sudha. He deposed that the weapon of SC No. 72/08 3/13 State vs. Rajkumar & Ors.
offence (sua) was recovered from the bushes of Aastha Park at the instance of accused Rajkumar Mishra. He further deposed that the accused Rajkumar Mishra also got recovered one ear ring and one nose pin from near Gate No.3, Okhla Subji Mandi after lifting a slab from there and taking out a blue coloured panni used to carry tobacco. He further deposed that the accused Samsuddin was overpowered from Gate No.2 of Okhla Subji Mandi and he got recovered one yellow coloured polythene used to carry tobacco from Shop No.4 kept under a cloth on a slab of the shop which was found carrying one gold ear ring (bunda). 4.4 PW4 is Ct. Budh Ram who deposed that on receipt of DD No. 12, he alongwith HC Ayub Khan reached the spot i.e in front of Bank, Okhla Mandi, Aastha Kunj gate where they came to know that the injured lady had been removed to Trauma Centre, AIIMS by the PCR officials. He deposed that the pant, shirt and baniyan of accused Rajkumar Mishra were taken into possession vide seizure memo and he was provided separate pant and shirt to wear.
4.5 PW5 is HC Ayub Khan. He also deposed on the same line as PW4 Ct. Budh Ram.
4.6 PW6 is Ct. Naan Babu. He deposed that he alongwith Inspector Rajkumar Saha reached the Trauma Centre, AIIMS hospital where he found admitted one Sudha in injured condition and he got SC No. 72/08 4/13 State vs. Rajkumar & Ors.
obtained the MLC of injured Sudha.
4.7 PW7 is Smt. Raj Dulari. She deposed that on the day of incident in the year 2008, she received a telephone call by someone through which she was informed that the condition of Sudha was very bad and she was lying unconscious at Okhla Mandi. She deposed that she alongwith her aunt (Bua) reached the spot where they found Sudha lying in semiunconscious state. Thereafter, she made a call at 100 number PCR. She further deposed that the PCR van came at the spot and taken injured Sudha to hospital and after getting medical examination of Sudha, she left the hospital.
4.8 PW8 is Dr. Geetanjali, AIIMS hospital, who deposed that patient Sudha was brought to the Casualty and after giving the required treatment, she was discharged at 4.00 pm as per the discharge summary prepared by her as Ex. PW8/A. 4.9 PW9 is Ct. Upender who deposed that on 04.09.2008, he was posted as duty constable at Trauma Centre, AIIMS when at about 12.50 pm, one injured Sudha was brought to Casualty by the PCR van E17. He deposed that he had given the intimation regarding the admission of injured Sudha in the hospital, to the Duty Officer, PS Amar Colony.
4.10 PW10 is HC Rajkumar who deposed that on 04.09.2008, he SC No. 72/08 5/13 State vs. Rajkumar & Ors.
was working at Police Control Room. He further deposed that at about 11.54 am, he received a call from Raj Dulari by telephone No. 01141802294 and she had given information that five boys had snatched ear rings of one lady near Okhla Mandi, Canara Bank, near Police Booth in the park and the said lady was lying unconscious. 4.11 PW11 is HC Satyender Kumar, who deposed that on 04.09.2008 at about 12.00 noon, he received a call regarding snatching of the ear ring from a lady in the park near Okhla Mandi, Canara Bank. He deposed that they reached the spot and found one lady in semi unconscious condition and one another lady was also present at the spot who disclosed the name of injured as Sudha. He deposed that he removed the injured to Trauma Centre, AIIMS and informed the Control Room regarding the admission of the said lady in the hospital. 4.12 PW12 is Sh. N.K. Malhotra, Ld. Administrative Civil Judge, who has proved the TIP proceedings of the case property as Ex. PW12/B and his certificate regarding the correctness of the TIP proceedings as Ex. PW12/C. 4.13 PW13 is Dr. Sushil Sharma, AIIMS, who deposed that the injury mentioned in the MLC report could be possible by the weapon (metal hook with handle) produced by the police. He has proved his report in this regard as Ex. PW13/A and prepared a rough sketch of the SC No. 72/08 6/13 State vs. Rajkumar & Ors.
weapon of offence on the backside of the report as Ex. PW13/B. 4.14 PW14 is Sh. Satish Kumar, Metropolitan Magistrate, who has proved the TIP proceedings of the accused Samsuddin vide Ex. PW14/A and that of the accused Rajkumar Mishra vide Ex. PW14/B. 4.15 PW15 is Inspector Rajkumar Saha, the Investigating Officer of the case.
5. The incriminating evidence in the statement of witnesses was explained to them when their statement was recorded U/s 313 Cr.P.C and they denied all the evidence against them as false.
6. I have heard the arguments from the Ld. Addl. Public Prosecutor for state and the Ld. Counsel for accused and perused the evidence on record carefully.
7. The Ld. Addl. PP has argued that the accused persons have been arrested on the basis of the description given to the police by the complainant and the accused Rajkumar Mishra pursuant to his arrest has led to the recovery of the weapon of offence and one ear ring and a nose pin. When the accused was arrested, he also got recovered one ear ring. He submitted that although the complainant has not identified the accused persons in the Court but still the case property having been recovered from their possession, connect them with the offence. He submitted that the accused have been charged for the offence U/s 411 IPC as well and SC No. 72/08 7/13 State vs. Rajkumar & Ors.
the recovery from their possession of the stolen articles which have been duly identified by the complainant in the TIP proceedings as well as in the Court establish their offence.
8. On the contrary, the Ld. Counsel for accused had argued that the complainant has not identified the accused in the Court. Moreover, the recovery which is shown from the accused persons is not believable because no independent witness has been joined at the time of recovery. Secondly, the recovery is planted upon the accused persons. Further, it was argued that the falsity of the prosecution case is reflected from the fact that the complainant nowhere alleged that the accused persons had snatched her nose pin as well but the Investigating Officer had effected the recovery of nose pin as well from the possession of the accused Rajkumar Mishra. This makes the entire prosecution case doubtful.
9. The star witness of the prosecution was PW2 Smt. Sudha. On the date of incident at around 7.15 am when she was present at Okhla Subji Mandi bus stand, two persons had dragged her by shutting her mouth and they removed the kundals (ear rings) from her ear and in the process, also had caused injury on the head of the complainant by the help of a Sua (an instrument used for picking the gunny bags which is in the shape of sickle). Her statement had led to the registration of the present case for the offence U/s 394/397/34 IPC. In her statement to the police SC No. 72/08 8/13 State vs. Rajkumar & Ors.
Ex. PW2/A, she had stated that one of the assailant was wearing yellow colour shirt and blue colour pant and the other one was wearing the cream colour vest and white pant. This description as per the prosecution case was found sufficient by the IO and on the basis of this, he had apprehended the accused Rajkumar Mishra while he was standing near the Annapurna Factory at Sambhu Dayal Park, New Delhi. Thereafter, his disclosure statement was recorded and recovery was effected and later on also, at the instance of accused Samsuddin, the recovery of one ear ring was effected.
10. So far as the identity of the articles of jewellery is concerned, it is not in dispute that these articles have been identified by the complainant during the TIP proceedings but the vital question is whether this recovery was genuinely effects from the accused persons or not.
11. So far as the identity of the accused persons as the assailant and the robber is concerned, PW2 Smt. Sudha has categorically denied the involvement of the accused in the case. When she was cross examined by the Ld. Addl. PP, she had categorically denied the suggestion that she had identified the accused persons to the police and was deliberately not identifying them in the Court on account of compromise. PW2 in the examinationinchief has deposed that she could identify those persons who took away her kundals (ear rings) from the ears and when the SC No. 72/08 9/13 State vs. Rajkumar & Ors.
accused was pointed out to the witness in the Court, she was further unable to identify them in the Court.
12. The next question arise about the evidence with regard to the recovery. The law is well settled that the recovery of the stolen articles from the possession of an accused may raise a presumption against him U/s 114 of the Evidence Act that he is either the thief or the receiver of the stolen property. It would depend upon the facts and circumstances of each case as to whether the inference of the accused being the main culprit can be drawn or not in the given case. The inference regarding the accused being the receiver or the retainer of the stolen property can be drawn, depending on the facts and circumstances of the case. It is not necessary that in each and every case of recovery of stolen property, a person can be presumed to be the receiver or retainer of the stolen property.
13. Before the Court can consider such a presumption U/s 114 Evidence Act, it is necessary to go through the evidence with regard to the recovery of ear rings and nose pin from the possession of the accused persons. PW5 HC Ayub Khan had joined the investigation with PW15 Inspector Rajkumar Saha when the accused Rajkumar Mishra was arrested. It has come in his statement that Inspector Rajkumar Saha had received a secret information regarding the description of the person as SC No. 72/08 10/13 State vs. Rajkumar & Ors.
given by the complainant in her statement Ex. PW2/A and pursuant to that, he had apprehended the accused Rajkumar Mishra. Now the question arise what was the description given by the complainant in her statement? Except that she stated that one of the assailant was wearing yellow colour shirt and blue colour pant and the other was wearing a cream colour vest and white pant, no other description like body structure, height, colour of the hair, colour of the skin etc. was given by the complainant. It was difficult to believe the statement of the IO that he apprehended the accused Rajkumar Mishra only on the basis of the description given by the complainant in her statement. He further said that the accused Rajkumar Mishra had led to the recovery of a nose pin and ear ring which was lying under a slab near the Gate No.3 of the Okhla Subji Mandi, New Delhi. He has not explained anywhere why there was no public witness associated at the time of recovery when it was effected from a public place where persons would be present all the time. Further, he has made recovery of two items i.e nose pin and ear ring. The complainant has never complained that her nose pin was also snatched by the assailants. Therefore, how this nose pin had also come in the same pouch in which the ear ring was kept, is not clear. So far as the accused Samsuddin is concerned, the recovery was effected on 05.09.2008 and this recovery was from the shed of Shop No. 104, Okhla Subji Mandi, SC No. 72/08 11/13 State vs. Rajkumar & Ors.
New Delhi. The recovery of the stolen articles must be from the possession of the accused, this is the requirement of Section 411 IPC. Possession of the accused may be constructive or actual. Shop No. 104 does not belong to the accused. Rather, no evidence has been collected as to whom does it belong. If the recovery has been effected from Shop No. 104, Okhla Subji Mandi, it cannot be without the knowledge of the owner of the shop. If the recovery was effected with the knowledge of the owner, then he should have been a witness to the recovery or at least he should have been made a witness to the fact that the recovery has been effected from his shop. However, the prosecution case is completely silent as to who was the owner of the Shop No. 104, Okhla Subji Mandi. Therefore, the evidence with regard to the recovery of the stolen articles from the possession of the accused does not appeal to reason and the evidence brought on the record is too contrived to be believed. So far as the offence U/s 394/394/34 IPC is concerned, both the accused stand acquitted for the said offences. As far as the alternative charge of Section 411 IPC is concerned, again the accused deserve acquittal but on the basis of the principle of benefit of doubt and it is ordered accordingly. Accused Rajkumar is on bail. His bail bond stands cancelled and surety stands discharged. Documents of the surety, if any, be returned to him on proper receipt and identification.
SC No. 72/08 12/13
Accused Samsuddin is in JC. Be released forthwith, if not required in any other case. File be consigned to Record Room.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 14th November, 2011 Addl. Sessions Judge02: South
East Saket Court: New Delhi
SC No. 72/08 13/13