Delhi District Court
State vs . Morison @ Khole & Another on 7 December, 2019
IN THE COURT OF SH. ARUL VARMA
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
CNR No. DLCT02-033153-2018
New Case No. 14236/2018
FIR No.: 219/2018
PS: DBG Road
U/s 392/411/34 IPC
State Vs. Morison @ Khole & Another
(a) S. No. of the case : 14236/2018
(b) Name of complainant : Smt. Kavita Khurana
W/o Sh. Ashok Khurana
R/o 1870, Sector-04,
Gurgaon, Haryana
(c) Date of commission of offence : 19.08.2018
(d) Name of the accused : 1) Morison @ Kholke
S/o Late Sh. Pole,
R/o. Gali no. 11,
Multani Dhanda,
Paharganj, Delhi
2) Preeti
D/o Sh. Vijay @ Daal Roti
(already declared
Absconder)
(e) Offence complained of : U/s 392/411/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 07.12.2019
(h) Final Order : Acquitted
(i) Date of such order : 07.12.2019
FIR No. 219/2018 PS DBG Road Page 1 of 16
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. Accused Morison @ Kholke has been arraigned for trial on the allegations that on 19.08.2018, at about 02.15 PM, opposite House No. 16, New Rohtak Road, Karol Bagh, Delhi, he alongwith his accomplice namely Preeti, who had been declared absconder, in furtherance of their common intention committed theft of one bag containing jewellery, cash, mobile phones etc., from the possession of the complainant Smt. Kavita Khurana and in attempting to take away the property, they assaulted and caused hurt to her. Further, on 28.08.2018, accused Morison @ Kholke was found in possession of robbed amount of Rs. 7200/-, one pair tops (diamond) and subsequently got recovered a sum of Rs. 25,000/- from behind dustbin near DDA Park, Gali no. 11, which was dishonestly received and retained by him belonging to complainant, knowing or having reason to believe that such property was stolen. Similarly, on 28.08.2018, accused Preeti was found in possession of robbed amount of Rs. 4800/- and also the robbed mobile phone (I Phone) which you had dishonestly received or retained knowing or having reasons to believe the same to be stolen property. On the complaint of complainant, FIR was registered under section 392/411/34 IPC.
INVESTIGATION & OTHER PROCEEDINGS
2. During investigation, IO arrested the accused persons on 28.08.2018. Statement of witnesses were recorded, site plan was FIR No. 219/2018 PS DBG Road Page 2 of 16 prepared, steps were taken to conduct Test Identification Parade of the accused, seizure memo was prepared and another steps were taken towards investigation of the case. On completion of investigation, chargesheet/report as per Section 173 Cr.PC was filed on 27.10.2018. Cognizance of offence was taken on 31.10.2018.
CHARGE FRAMED AGAINST ACCUSED
3. Subsequent to compliance of section 207 Cr. P. C, i.e. supply of charge-sheet to the accused persons and scrutiny thereof, charge was framed against the accused persons under Section 392/34 and alternatively u/s 411 Indian Penal Code to which they pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
4. In the trial, the prosecution in support of its case examined 07 witnesses, the succinct testimony whereof are as follows:-
(a) PW-1 Smt. Kavita Khurana, the complainant in this case.
She deposed that on 19.08.2018, she along with her husband Sh. Ashok Khurana had visited the temple at about 01:30 PM and returning back, they went to Karol Bagh market in an auto. They had parked their car opposite Bhramakumaris Mandir, New Rohtak Road. They visited one shop and came back in an auto to the said spot where they had parked their car. It was around 02:15-02:17 PM when her husband sat in the car and she was about to sit in the car when one girl and one boy came on a scooty and snatched her bag. The said bag was containing cash FIR No. 219/2018 PS DBG Road Page 3 of 16 Rs. 7.5 lacs, three pairs of tops and two rings. One ring and one pair of tops were solitaire and other ornaments were having multiple diamonds. The bag was also containing two I Phones make 6S Plus and one I Phone make 5S. The boy was driving the scooty and the girl was sitting behind him. The girl sitting behind had snatched the bag and while snatching the bag, even the shirt of complainant also got torn. PCR was called at the spot and officials of PCR inquired about the matter. She had informed that her phones lying in the bag were on as her husband was constantly making calls on the phones which were found to be ringing. She was asked to first visit the PS. She had visited the PS with her husband. Her husband accompanied the police officials to locate the offenders while she remained in the PS. She had approached Mr. Randhawa, DCP who had taken initiative and got the offenders caught. She personally got CCTV footages of the area collected at her own level and provided the same to the police officials. As desired by the IO, she had also sent the photographs showing the ornaments worn by her earlier on Whatsapp. On 26.08.2018, she was called at the PS when the offenders were being taken for medical examined. She informed the police about the denomination and status of the notes. She got one pair of tops and one mobile phone release from the Court. Complainant had correctly identified the accused persons in the Court. Her complaint is Ex. PW1/A. She had identified the one pair of diamond tops, photograph of which is Ex. P1 and the mobile phone make I Phone 6S Plus Ex. P2, photographs of which are Ex. P2 (colly). PW1 was cross-examined by Ld. APP for the State on some FIR No. 219/2018 PS DBG Road Page 4 of 16 points as she was not deposing complete facts. During cross- examination by Ld. APP, she did not recall if the offenders were wearing any cap or not. However, she admitted that she had informed the police officials about that. She later told that accused persons wearing caps, though could not recall if one of them or both of them were wearing caps at that time. Since the offenders had come from her behind, she could not tell if they had come from Liberty Cinema side or not. She was confronted with portion A to A1 of her complaint Ex. PW1/A but denied giving information to the police.
(b) PW-2 Sh. Ashok Khurana, the husband of the complainant.
He deposed that he did not remember the exact date of incident and it was 16 or 19.08.2018, but it was a Sunday. He had gone with his wife Smt. Kavita Khurana in a temple called Shree Sanwali Murti Mandir, at Gali no. 2, Doriwalan, Karol Bagh. He had already parked his car at New Rohtak Road and had gone to the temple on foot. He deposed that when the function at the temple got over in the noon hours, they had decided to go to market. They had gone to Gaffar Market, Karol Bagh in an auto and did some shopping. They had come back to New Rohtak Road on an auto and got down near traffic signal while their car was parked nearby opposite House No. 16, New Rohtak Road while he had opened the gate of the car, and his wife was near the back side of the car, the incident had taken place. His wife shouted that her purse had been snatched. He had come to her and saw that a scooty was going but as it was a momentary incident, he could not note down the number of the scooty. He FIR No. 219/2018 PS DBG Road Page 5 of 16 had seen that two persons were sitting on the scooty but he could not make out if they were males of females. He could not see their faces. While the scooty was going, an e-rickshaw came behind it. He started his car and after driving for 50-60 feet. He had called the police at 100 number. He was directed to remain there and in five minutes, several PCR vehicles came there. He had given the mobile numbers to them and had requested them to put the same on surveillance so that the offenders could be apprehended. He was then made to accompany the police officials for four hours to trace the mobile phones. He deposed about the checking of CCTV footage, receiving information regarding apprehension of the accused persons after 20-25 days. He further deposed on similar lines as deposed by PW1.
(c) PW-3 WCt. Kavita, No. 2220/C. PW-2 deposed that on 28.08.2018, she was posted at PS DBG Road as W-Constable and on that day, one secret informer met with SI Lalit Kumar and had informed about the accused persons. Thereafter, she along with Ct. Rajbir, Ct. Sube Singh and SI Lalit had reached at DDA Park, Nabi Kari where on the signal of secret informer, they apprehended the accused Morison and Preeti as they were involved in the commission of offence of the present case. During formal search of accused Morison, one golden colour tops were recovered and one mobile phone was recovered from accused Preeti. Some amount of money was also recovered from accused Morison and Preet but she did not remember the exact amount. Both the accused persons were arrested vide arrest memos Ex. PW3/A and Ex. PW3/B and their personal search FIR No. 219/2018 PS DBG Road Page 6 of 16 were conducted vide memos Ex. PW3/C and Ex. PW3/D. Disclosure statement of accused Preeti was recorded vide memo Ex. PW3/E. Seizure memo of mobile phone is Ex. PW3/F. PW3 identified both the accused persons. She has correctly identified golden colour tops and the mobile in the photographs Ex. P1 and Ex. P2.
(d) PW-4 Ct. Rajbir Singh, No. 1694/C. PW-3 deposed that on 28.08.2018, he was posted at PS DBG Road and on that day, one secret informer met with the IO and informed about availability of accused at DDA Park. Thereafter, he along with WCt. Kavita, Ct. Sube Singh and the IO reached nearby DDA Park. IO requested 4-5 passersby to join the investigation but they refused to join the same and left the spot. Thereafter, at the instance of secret informer, they had apprehended the accused Morison and Preeti from DDA Park. During formal search of accused Morison, one golden colour tops and Rs. 7200/- were recovered. IO seized and sealed the same by making a pullinda with white colour cloth vide seizure memos Ex. PW4/A and Ex. PW4/B. During formal search of accused Preeti, one I Phone and Rs. 4800/- were recovered and IO sealed and seized the same by making pullinda with a white colour cloth and sealed with the seal of DBGR vide memo Ex. PW4/C. IO prepared the site plan Ex. PW4/D. Accused persons were arrested and personally searched vide memos Ex. PW3/B and Ex. PW3/D. Disclosure statement of accused Morison was recorded vide memo Ex. PW4/E. One scooty bearing no. DL-8SBV-2010 was seized vide seizure memo Ex. PW4/F. The case property was deposited FIR No. 219/2018 PS DBG Road Page 7 of 16 in the Mal Khana. On the next day, PC remand of accused was obtained and at his instance Rs. 25,000/- was recovered from nearby DDA Park, behind Kudda Khatta, Gali no. 11 from one polythene. IO seized the same vide seizure memo Ex. PW4/G. Accused refused for his TIP proceedings. IO recorded the statement of PW4. PW4 correctly identified the accused persons.
(e) PW-5 Ct. Rajbir Singh, No. 1043/C. PW5 being the recovery witness, has deposed on the similar lines as deposed by PW5 and PW3.
(f) PW-6 SI Praveen Kumar, No. D-4134. PW-6 deposed that the present case was marked to him after SI Lalit. However, he had only filed the charge-sheet in the Court and had not carried out any further investigation. The charge-sheet is Ex. PW6/A. After refreshing his memory by PW6, he deposed that on 03.10.2018, he had contacted the complainant and met her. He had shown the dossier of accused Preeti to her. From that dossier, she had identified the accused Preeti to be the one who had snatched her bag being the pillion rider. He had recorded the statement of the complainant and thereafter, he had filed charge-sheet upon conclusion of investigation.
(g) PW-7 IO/SI Lalit Kumar, No. D-5046. PW-7 after refreshing his memory deposed that on 19.08.2018, he was posted at PS DBG Road as Sub-Inspector. On that day, he was on emergency duty from 08:00 AM to 08:00 PM and on receipt of Ddno. 22A in the afternoon, he had gone to the spot i.e. near Chotte Lal Pan FIR No. 219/2018 PS DBG Road Page 8 of 16 Bhandar, New Rohtak Road in front of Bharam Kumaris Ashram. At the spot, the complainant and her husband had met him. They had informed him that while they were about to sit in their, two boys had come on a scooty and snatched her bag. He had therefore checked the CCTV Cameras nearby but there was no clue therein. He had then recorded the statement of the complainant and prepared rukka Ex. PW7/A and handed over the same to Ct. Rajbir for registration of the FIR, who had come back to the spot along with copy of FIR and original rukka and handed over the same to him. He prepared the site plan at the spot Ex. PW4/D. He had therefore taken the complainant and her husband to the PS. At the PS, statement of husband of the complainant and supplementary statement of the complainant were recorded. During statement, the complainant had told that the pillion rider appeared to be a girl as well and it was quite possible that the pillion rider was a girl, who was also wearing a cap. The husband of the complainant had also supported the version of the complainant and had clearly stated that the pillion rider was a girl. The complainant and her husband were then allowed to go. PW7 carried out further investigation and the mobile phone were put on tracking. He further deposed that on 28.08.2018, they had received secret information that the girl and boy who had committed the offence, were present in Nabi Karim Area and were sitting in DDA Park there. He had informed his seniors and then proceeded towards the said spot with Ct. Rajbir and Ct. Sube. The informer had taken them to the Park where they found both the accused persons sitting and one scooty was also parked there. The informer had pointed out FIR No. 219/2018 PS DBG Road Page 9 of 16 towards accused persons to be the offenders and the scooty to have been used in the offence, after which the informer was asked to leave. They had therefore apprehended both the accused persons. Upon cursory search of accused Morison, one pair of diamond tops and cash Rs. 7200/- were found in the pocket of his trousers. He had disclosed about his involvement in the offence and also the involvement of accused Preeti and the scooty parked there. Ct. Kavita was also with them in the team and Ct. Kavita had taken search of accused Preeti and during her search, one I Phone and cash of Rs. 4800/- were recovered from her. Since only Ct. Kavita had taken search of accused Preeti, he was not aware as to from where the said articles were recovered from her. Upon checking, the IMEI number of I Phone was found to be as was mentioned in the FIR. The number of the scooty was probably 2010. All the recovered articles were seized separately vide memos Ex. PW4/A, PW4/B, Ex. PW4/F, Ex. PW4/C and PW3/F. Both the accused persons were arrested and personally searched vide memos Ex. PW3/A to Ex. PW3/D. Both the accused persons were got medically examined and kept in muffled face. Both the accused persons were produced before the Court. PW7 deposed that accused Morison had refused to participate in TIP proceeding, but he was not surety if accused Preeti had also refused or not. He had then taking PC remand of accused Morison for two days. Accused Morison had kept on taking us to various places but finally taken them to a park near Gali no. 11, Nabir Karim, Multani Dhanda from where he had got recovered cash of Rs. 25,000/-. 12 notes were of Rs. 2000/- each FIR No. 219/2018 PS DBG Road Page 10 of 16 and 02 notes were of Rs. 500/- each, which were lying in a polythene in a heap of waste lying near the wall of the park. The said amount was seized vide seizure memo Ex. PW4/G. The accused however did not disclose anything further. Accused was then taken to PS. The complainant had come in the evening to the PS to inquiry about the matter. The complainant and her husband had seen the accused at the PS and identified him to be offender. Their statement were recorded. PW further deposed that he had also recorded the disclosure statements of the accused persons Ex. PW3/G and Ex. PW3/H. Accused was then produced before the Court and sent to JC and after few days, the investigation was transferred to second IO/SI Praveen. PW7 has correctly identified the case property in the photographs Ex. P1, Ex. P2 and Ex. P3.
5. Vide separate joint statement recorded under section 294 CrPC on 03.04.2019, accused persons admitted the genuineness of several documents, that is, FIR Ex. D1, TIP proceedings Ex. D2 and record of MHC(M) with register no. 19.
STATEMENT OF ACCUSED
6. Examined under Section 313 Cr. P. C, the accused persons asserted their innocence and alleged false implication. Accused persons further stated that they never involved in the said offence and the recovery has been falsely implanted upon them. They did not lead any evidence in their defence.
FIR No. 219/2018 PS DBG Road Page 11 of 16ARGUMENTS OF LD. APP FOR STATE AND LD. DEFENCE COUNSEL
7. Ld. APP for the State Sh. Rajiv Kamboj had contended that the accused was found in possession of the stolen mobile phone belonging to the complainant, possession thereof could not be explained by the accused. Further, the complainant correctly identified the accused before the Court. During investigation, the accused refused to participate in TIP proceedings, as a result whereof, adverse inference ought to be drawn against him. Ld. APP for the State further contended that all ingredients of the sections invoked against the accused have been proved beyond reasonable doubt, and thus the accused ought to be convicted for the offences he has been charged with.
8. Per contra, Ld. Legal Aid Counsel Sh. Ved Prakash has submitted that there are various discrepancies in the prosecution version, the benefit whereof should enure in favour of the accused, and thus they should be exonerated.
9. I have heard both parties and have perused the record.
10. It is pertinent to note that the complainant in the FIR had stated that when the said robbery took place, her husband was sitting in the car reversing it. However, PW2 in his statement stated that the said incident took place when he opened the gate of the car and was about to get inside. Thus, the above two versions are contradictory as to the actual location of the husband. Further, PW1 in her statement stated FIR No. 219/2018 PS DBG Road Page 12 of 16 that when alleged robbery took place, the girl/co-accused Preeti had snatched her bag and while snatching it, the shirt of PW1 got torn. It is to be noted that the torn piece of the cloth was not produced by the prosecution. Nowhere had PW1 mentioned that she had seen the face of the accused. The complainant in DD no. 22A has mentioned that two boys snatched away her bag which had three mobile phones and Rs. 5,00,000/- but in the FIR, she had mentioned that she lost Rs. 5,00,000/-, three diamond tops, two diamond rings, three mobile phone namely I Phone 5, I Phone 6S and I Phone 6S Plus and approximately Rs. 2,50,000/- in cash. Strangely, in his examination, she had made two contradictory statement as to the number of the mobile phones she was carrying. This can be seen as a major discrepancy in the version given by the complainant.
11. As far as lacunae in investigation is concerned, the site plan prepared by the IO was not signed by the complainant. The complainant stated that she went to the Police Station only once. This raises question as to when the site plan was made. Also, the Ld. APP for the State stated that the accused had refused to participate in the TIP proceedings. However, a perusal of the record would reveal that no TIP proceedings were filed along with the charge-sheet. The IO did not even bother to file supplementary charge-sheet containing TIP proceedings.
12. Further, PW1 has stated in her statement that they visited the temple at around 01:30 PM. However, in her statement under Section 161 Cr.P.C, she stated that they visited the temple at around 10:30 AM. In her examination-in-chief, she stated that they had parked their car FIR No. 219/2018 PS DBG Road Page 13 of 16 opposite Bharam Kumari Mandir, New Rohtak Road whereas in her statement under Section 161 Cr.P.C, she stated that they parked it opposite House no. 16, New Rohtak Road. She further stated in her examination that her husband sat in the car when one girl and one boy came to snatch their bag whereas in her statement under Section 161 Cr.P.C, she stated that her husband was reversing the car when two boys came. Such contradictions create doubts on the version of the prosecution.
13. It is to be noted that PW1 in her examination had stated that she got CCTV footage collected, but the same was not presented before the Court. However, the police witnesses did not substantiate her claim. Also, the bills of the mobile phones and ornaments were not produced before the Court as evidence.
14. As far as recovery of stolen items is concerned, the recoveries seem doubtful. PW3 Ct. Kavita had stated in her examination that on signal of a secret informer, she had apprehended the accused Morison and Preeti and on their formal search, one gold tops and one mobile phone were recovered from accused Preeti. She stated that some amount of money was also recovered from accused Morison and Preeti but she does not remember the exact amount. Further, PW7 SI Lalit in his statement has stated that he checked the CCTV Cameras nearby the spot but there was no clue therein. PW7 further stated that the accused Morison took them to a park from where they recovered cash of Rs. 25,000/-, 12 notes were of Rs. 2000/- each and two notes were of Rs. 500/- each which were lying in a polythene in a heap of waste lying near the wall of the park. On being cross-examined, she FIR No. 219/2018 PS DBG Road Page 14 of 16 stated that some passersby were present at the spot but IO did not record the statement of any such public person. This Court has found that the IO has not made any sincere efforts to join any public person in the investigation. The Apex Court in the case reported as State of Punjab versus Wassan Singh, (1981) 2 SCC 1 held that "omission on the part of investigating officer to join with him some independent persons or respectables the localities to witness the recovery, held, devalues evidence regarding the recovery but does not render it in admissible". In the case in hand, the recovery was made in day light at a public place but despite that no independent witnesses were joined by the police. Thus, this Court is not inclined to place reliance on the evidence of the prosecution qua recoveries.
15. It is a cardinal principle of criminal jurisprudence that the accused is always presumed to be innocent and the prosecution has to establish its case beyond reasonable doubt. In the case in hand, the accused were charged under Section 392/411 IPC. The prosecution in the case has not successfully proved the offences beyond reasonable doubts. There are several discrepancies in the version of prosecution. Hon'ble Supreme Court in the case reported as Kali Ram versus State of Himachal Pardesh (1973) 2 SCC 808 held that another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
FIR No. 219/2018 PS DBG Road Page 15 of 1616. In the entirety of these given facts and circumstances and for want of suitable evidence on record, it can be said that the prosecution has not been able to establish the guilt of the accused persons. The accused persons are entitled to be given benefit of doubt.
17. Accused Morison and Preeti are thus held not guilty and are accordingly acquitted of the charges.
18. File be consigned to Record Room.
Digitally signed by ARUL ARUL VARMA
Announced in the open Court VARMA Date:
2019.12.09
this 07th Day of December, 2019 15:31:10 +0530
(Arul Varma)
Chief Metropolitan Magistrate (Central)
Tis Hazari Courts, Delhi
FIR No. 219/2018 PS DBG Road Page 16 of 16