Delhi District Court
Cr. Case/189/2022 on 20 January, 2023
IN THE COURT OF MS. RUBY NEERAJ KUMAR, ACMM, WEST, TIS HAZARI COURTS, DELHI State v. Arjun @ Rahul @ Kanchi FIR No. 588 /2021 u/s 356/379 IPC PS: Patel Nagar Unique Case I.D No. DLWT02-000389-2022 JUDGMENT
Serial No. of the case 189/2022
Date of commission of offence 16.11.2021
Date of institution of case 12.01.2022
Name of the complainant Dev Chopra
Name of Accused, parentage Arjun @ Rahul @ Kanchi
& Address S/o Sh. Som Bahadur
R/o H.No.726, Shiv Basti,
Rama Road, Shadipur Railway
Line,
Delhi.
Offence complained under section 356/379 IPC
Plea of Accused Pleaded not guilty
Final Order Acquitted
Date of Judgment 20.01.2023
BRIEF FACTS
1. Succinct facts of the case as enunciated by the prosecution are that on 16.11.2021 at about 04:15 pm, in front of Ashu Fashion, W-9, West Patel Nagar, Delhi, within the jurisdiction of PS Patel Nagar, accused Arjun @ Rahul @ Kanchi committed theft of one mobile phone make VIVO Y-83 Pro (black colour) having IMEI No.869936035222418 & 869936035222400 belonging to PW-4/ Complainant Dev Chopra by using criminal force. It is the case of the prosecution that the FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 1 of 13 information regarding the alleged incident was recorded by Duty Officer Head Constable Kuldeep Singh vide DD No.71-A dated 16.11.2021. It is further the case of the prosecution that on receiving said DD, PW-2/Investigating Officer SI Sandeep Yadav reached at the spot alongwith PW-3 Constable Bhupender Kumar and recorded the statement of PW-4/Complainant, prepared rukka, which is Ex. PW-2/A and handed over the same to PW-3 for registration of FIR. It is alleged that on the basis of the rukka, present case FIR i.e. Ex. A-1 was registered under section 356/379 IPC. Allegedly, PW-2/IO prepared the site plan at the instance of PW-4/Complainant, which is Ex. PW-2/D. It is further the case of the prosecution that during investigation of the present case, on 17.11.2021, accused Arjun @ Rahul @ Kanchi was arrested in case FIR no. 589/2021 registered under section 457/380/511 IPC at PS Patel Nagar vide arrest memo Mark PW- 1/X2 and therein, he had disclosed having committed the offence in the present case vide disclosure statement, which is Mark PW- 1/X4. It is further stated that PW-2/IO formally arrested the accused, in the present case, vide arrest memo, which is Ex.PW- 2/D and recorded his disclosure statement, which is Ex.PW-2/C. It is further the case of the prosecution that on 24.11.2021, Ms. Karuna, Ld. MM conducted Test Identification Parade of the accused and therein, accused was correctly identified by PW- 4/Complainant. The TIP proceedings is Ex. A-3. It is further the case of the prosecution that despite efforts, the stolen property could not be recovered.
2. Investigation was concluded and chargesheet was filed in the court. Cognizance of the offence was taken and copy FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 2 of 13 of chargesheet was supplied to the accused, in compliance of section 207, Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C').
3. Arguments on charge were heard and vide order dated 04.04.2022, charge for offence under section 356/379 IPC was framed against the accused by the Ld. Predecessor. The accusation was read over and explained to the accused to which he pleaded not guilty and claimed trial.
EVIDENCE RECORDED DURING TRIAL
4. The prosecution has examined four witnesses to substantiate the allegations levelled against the accused.
5. PW-1 ASI Satish Kumar has deposed that on 17.11.2021, he had arrested the accused in case FIR No.589/2021 registered at PS Patel Nagar and therein, accused had disclosed having committed the offence in the present case. He has further submitted that he informed regarding the same to PW-2 i.e. the Investigating Officer of the present case and also handed over to him, photocopies of all the relevant documents i.e. disclosure statement, arrest memo & personal search memo of the accused and site plan. He has further deposed that in case FIR No.589/2021, he had arrested the accused vide arrest memo, which is Mark PW-1/X2, conducted his personal search vide personal search memo, which is Mark PW-1/X3 and recorded his disclosure statement, which is Mark PW-1/X4.
FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 3 of 136. PW-2 Sandeep Yadav is the Investigating Officer of the present case. He has deposed that on 16.11.2021, on receiving DD No.71-A, he alongwith PW-3 Constable Bhupender Kumar reached at the spot and recorded the statement of PW- 4/Complainant. He has further deposed that on the basis of the statement of PW-4/Complainant, he prepared rukka, which is Ex.PW-2/A and handed over the same to PW-3 for registration of FIR. He has deposed that after the registration of the FIR, he prepared site plan at the instance of PW-4/Complainant, which is Ex. PW-2/B. He has further deposed that on 17.11.2021, PW-1 informed him that in case FIR no. 589/2021 PS Patel Nagar, accused has disclosed having committed offence in the present case. He has further deposed that he recorded the disclosure statement of the accused in the present case, which is Ex. PW-2/C and arrested the accused vide arrest memo, which is Ex. PW-2/D. He has further deposed that he got conducted the TIP proceedings of the accused wherein, PW-4/Complainant had correctly identified the accused and prepared pointing out memo of the place of incident at the same being pointed out by the accused, which is Ex. PW-2/E. He further stated to have completed the investigation and filed the chargesheet before the court.
7. PW-3 Constable Bhupender Kumar had joined the investigation of the present case with PW-2/IO. He has deposed on the same lines as PW-2.
8. PW-4 Dev Chopra is the Complainant. He entered the witness box and deposed that on the date of incident, when he was returning to his residence from Hasan Coaching Centre and FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 4 of 13 reached near a cloth shop, accused came from the front side and collided with him. He has further deposed that after about a minute, when he searched the pocket of his wearing trouser, he found that his mobile phone make VIVO Y83 was missing. He has further deposed that he realized that the accused has stolen his phone but by that time, accused had already fled away from the spot. He has deposed that he went to the police station and lodged complaint with respect to the same. He has further deposed that on the next day, he received information regarding apprehension of the accused and he went to Tihar jail & identified the accused.
9. Further, in his cross-examination, he went on to depose that on receiving information regarding the apprehension of the accused, he went to the police station and correctly identified the accused in the lock-up. He further stated that police official had informed his father regarding conducting of the TIP proceedings but he does not remember the date, when he went to Tihar Jail to identify the accused. He admitted that when the phone was taken out from his pocket, he did not realize that it has been stolen and only after some time, he found out that his phone has been stolen. He further stated that he had seen the accused when he was coming from the front but he did not see him while committing the theft.
10. It is pertinent to mention herein that during the course of trial, vide separate statement recorded on 04.04.2022, in accordance with the provisions of section 294 of Cr.P.C, accused while disputing the contents, admitted the registration of FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 5 of 13 present case FIR no. 588/2021 dated 16.11.2021 registered under section 379/356 IPC at PS Patel Nagar, which is Ex. A-1, Certificate under section 65-B of Indian Evidence Act, which is Ex.A-2 and TIP proceedings dated 24.11.2021 conducted by Ms. Karuna, Ld. MM, which is Ex.A-3. In view of the admission made, Duty Officer, Head Constable Kuldeep & Ms. Karuna, Ld. MM were dropped from the list of witnesses.
11. PE was closed on 19.11.2022. Statement of accused under section 313 r/w 281 Cr. P.C was recorded on 09.12.2022 wherein, all the incriminating evidence were put to the accused. In his statement recorded under section 313 r/w 281 Cr.P.C, accused has stated that he has not committed any offence and he has been falsely implicated in the present case Accused stated that he does not want to lead any evidence in his defence. Accordingly, matter was straight away fixed for final arguments.
12. I have heard the rival contentions of Ld. APP for the State as well as Ld. Legal Aid Counsel for the accused and carefully perused the entire material available on record.
13. Ld. Legal Aid Counsel for the accused has argued that there are material improvements/discrepancies in the testimony of the Complainant with respect to the identity of the accused and the prosecution has failed to establish the identity of the accused as the offender beyond reasonable doubt. He has further argued that the accused has been wrongly identified by the Complainant/PW-4 at the instance of the police as he has himself admitted during his cross-examination that he had seen FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 6 of 13 the accused in the police station ahead of the TIP proceedings. He has further argued that the stolen property was not recovered from the possession of the accused, which shows that the accused has been falsely implicated in the present case & the prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore, accused deserves to be acquitted of the alleged offence.
14. Ld. APP for the State has submitted that cumulative reading of testimony of all the prosecution witnesses unmistakably points towards the guilt of the accused. Ld. APP for the State has contended that the prosecution has proved its case against the accused beyond reasonable doubt and therefore, accused deserves to be convicted and sentenced as per law.
15. In the instant case accused has been charged for offence punishable under section 356/379 IPC. Before proceeding further on merits of the case, it would be apposite to first refer to the provisions of law for which charge has been framed against the accused.
16. Section 379 IPC specifically provides punishment for the offence of theft defined under section 378 IPC. Section 378 IPC defines theft as: "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moved that property in order to such taking, is said to commit theft." Thus, in order to bring home the guilt of the accused for committing offence punishable under section 379 IPC, prosecution is required to prove that the accused FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 7 of 13 dishonestly removed the stolen article from the possession of Complainant/ PW-4 without his consent.
17. Further, Section 356 IPC provides punishment for using criminal force in attempt to commit theft of property carried by a person, enunciating therein, "Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". As per Section 349 IPC, a person is said to use force on another when he causes motion, change of motion, or cessation of motion to that other, if he causes to any substance such motion, change of motion or cessation of motion as brings it in the contact with any part of that other's body, or with anything, which that other is wearing or carrying, or with anything so situated that such contact which affects the other's sense of feeling. This should be done by his own bodily power or by use of some substance or by inducing any animal to change the motion. Section 350 IPC further enunciates that the use of force will become criminal when it is done against the consent of any person with the intention of committing an offence, or to cause injury, fear or annoyance.
18. Adverting to the evidence brought on record by the prosecution, the entire case of the prosecution hinges upon the testimony of Complainant/PW-4 Dev Chopra as he is the only eyewitness of the alleged offence. Testimony of the Complainant/PW-4 is paramount for proving the prosecution's FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 8 of 13 case. Rest all witnesses are police /formal witnesses, who were not at the spot at the time of alleged incident. However, testimony of Complainant/PW-4 does not inspire confidence of this court as there are material improvements & discrepancies in the deposition of the Complainant/PW-4 before the court and his initial complaint Ex.PW-2/A. Firstly, in his initial complaint, Complainant/PW-4 has categorically stated that the accused while coming from front, collided with him and thereafter, snatched away his mobile phone from his pocket and fled away from the spot. On the other hand, testimony of the Complainant/PW-4 is totally silent on the aspect of snatching or use of any kind of force by the accused for commission of the alleged theft. Further, in his testimony, Complainant/PW-4 has admitted that prior to the TIP proceedings, he was called at the police station and therein, he had identified the accused. Strangely, neither the prosecution nor the Complainant/PW-4 has disclosed the said fact in his examination-in-chief, which raises reasonable doubt on their credibility. No doubt, the test identification parade is not a substantive piece of evidence but it can be used for the purpose of corroboration. In other words, it is utilized for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. But the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused was possibly shown to the witnesses before the identification parade, in the police station. Under such circumstances, when the accused was already shown to the FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 9 of 13 witness, his identification in the Court by the witness becomes meaningless. The statement of witness in the Court identifying the accused in the Court loses all its value and could not be made basis for recording conviction against the accused. Reliance in this regard could be placed on the. judgment of the Hon'ble Apex Court in case titled as Shaikh Umar Ahmed Shaikh & Anr v. State of Maharashtra; AIR 1998 Supreme Court 1922.
19. At this stage, apposite it would be to refer to the latest judgment of the Hon'ble Apex Court in case titled as Gireesan Nair v. The State of Kerala; Criminal Appeal Nos. 18641865 of 2010 decided on 11.11.2022 wherein, it has dealt with the consequences of showing the accused to the witness prior to the test identification parade and held as under:
"25. ..........The object of conducting a TIP is threefold. First, to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with 18 (2012) 6SCC174 the said occurrence. Third, to test the witnesses' memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime (Mulla and Anr. v. State of U.P.).
26. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru alias Girish Chandra v. State of U.P.; Mulla and Anr. v. State of U.P. and C. Muniappan and Ors. v. State of Tamil Nadu). The evidence of a TIP is admissible under Section 9 of the Indian Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 10 of 13 accused can be sustained (State of H.P. v. Lekh Raj and Anr.; and C. Muniappan and Ors v. State of T.N.).
27. ...............
28. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form, i.e., physically, through photographs or via media (newspapers, television etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh and Ors v. State of U.P. and Suryamoorthi and Anr. v. Govindaswamy and Ors.).
29. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra )......."
20. Thus, judging on the touchstone of the observations made by the Hon'ble Supreme Court, in the present set of facts, the TIP of the accused has been vitiated & rendered futile and the identification of the accused, before the court, by Complainant/PW-4 becomes meaningless and redundant. In the light of the same, prosecution has failed to establish the identity of the accused beyond all reasonable doubts.
21. Furthermore, Complainant/PW-4 has admitted during his cross-examination that when the phone was taken out from his pocket, he did not realize that the same has been taken out and he had not seen the accused while committing theft. Meaning thereby, the prime/star witness of the prosecution has mere suspicion that the accused had committed the offence as he had collided with him. In a criminal trial, accused cannot be FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 11 of 13 convicted on the basis of the suspicion. The prosecution needs to establish beyond the shadow of all reasonable doubts that the accused had committed the alleged offence. Moreover, it cannot be overlooked that no recovery has been affected from the possession of the accused. Though, recovery of stolen property from the accused is not a sine qua non to prove the offence of theft but in the given facts & circumstances of the case, it is a relevant factor to decide upon the liability of the accused.
22. As discussed above, in the peculiar facts and circumstances of the instant case, I do not deem it judicious to convict the accused on the basis of the testimony of solitary witness as his testimony is a weak piece of evidence. In S. L. Goswami v. State Of Madhya Pradesh; 1972 SCR (3) 948, the Hon'ble Apex Court had observed as under:
" ..... the onus of proving all the ingredients of an offence is always ;upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is Palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests. upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt."
23. Further, in Kali Ram v State of Himachal Pradesh, AIR 1973 SC 2773 the Hon'ble Apex Court has FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 12 of 13 observed that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable.
24. Keeping in view the above discussed facts, circumstances and evidence adduced, this court is of the considered view that the case put forward by the prosecution has many discrepancies and the prosecution has despondently failed to establish its case beyond the shadow of all reasonable doubts & bring home the guilt of the accused. In view thereof, accused Arjun @ Rahul @ Kanchi S/o Som Bahadur is hereby acquitted of the offence under section 379/356 IPC.
25. Personal bond in the sum of Rs. 10,000/- has been furnished by the accused, in terms of Section 437-A Cr.P.C. Same is duly accepted for six months from today.
26. File be consigned to record room after due compliance.
RUBY Digitally signed
by RUBY
Announced in open court NEERAJ NEERAJ KUMAR
Date: 2023.01.20
on this 20th day of January, 2023 KUMAR 16:32:17 +0530
(Ruby Neeraj Kumar)
ACMM/West/Delhi
FIR No. 588 /2021 State v. Arjun @ Rahul @ Kanchi PS: Patel Nagar Page 13 of 13