Delhi District Court
State vs Manish on 18 December, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE -08 (CENTRAL),
TIS HAZARI COURTS : DELHI
PRESIDING OFFICER: MS. MEENA CHAUHAN, DJS
FIR No. 543/2021
PS : Kotwali
U/s 356/379/411/34 IPC
State vs. Manish and Anr.
Date of Institution of case: 04.08.2021
Date when Judgment reserved: 20.11.2023
Date on which Judgment pronounced: 18.12.2023
JUDGMENT
A. Case No. : 7998/2021
B. Date of Institution of Case : 04.08.2021
C. Date of Commission of Offence : 14.06.2021
D. Name of the complainant : Sh. Vijay Kumar
E. Name of Accused persons : 1. Manish s/o Vinod
& their parentages and residences R/o Footpath Company Bagh,
Chandni Chowk, Delhi 2. Anshul S/o Sh. Subhash,
R/o Village Tikari Khurd,
District Hathras, UP.
F. Offences complained of : U/s 356/379/411/34 Indian
Penal Code
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquitted U/s 356/379/411/34/ IPC
I. Date of such order : 18.12.2023
FIR No. 543/2021
PS : Kotwali
U/s 356/379/411/34 IPC
State vs. Manish and Anr. Page No. 1/28
BRIEF FACTS OF THE CASE:
1. The case of prosecution in brief is that on 14.06.2021 at 7.45 pm, at Bus Route No. 926, near Dangal Maidan Parking, both the accused persons in furtherance of common intention used criminal force in committing theft of mobile phone make OPPO Red Colour from the complainant and on the same date, time and place, the above said mobile phone was recovered from accused persons which they dishonestly received or retained knowing or having reason to believe the same to be stolen property and thereby committing an offence punishable u/s 356/379/411/34 Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 04.08.2021 against the accused. Cognizance of offences was taken. Copies of charge sheet were supplied to both accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s 356/379/411/34 IPC was framed against both accused to which he pleaded not guilty and opted for trial.
3. In support of its version, the prosecution has examined 04 (four) witnesses.
4. PW-1 Vijay Kumar in his examination-in-chief has deposed that on 14.06.2021, he along with his family deboarded from the train at old delhi FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 2/28 railway station. At around 7:45 pm, he was waiting for the bus to go to Haryana at the bus stop near ODRS. He deposed that at the time of boarding the bus, someone had stolen his mobile from his pocket. He further deposed that as soon as his mobile got stolen, he de-boarded the bus and shouted. He deposed that the police official who was also present at the spot apprehended that person on hearing his shout. He further deposed that a police official called him to the police post and he went to the police post and there the police official seized the police property and asked him to get the case property from the court. He has correctly identified both the accused persons. He has also correctly identified the original mobile phone which was stolen by the accused person and witness submitted this was the mobile phone which was stolen by the accused and he got it released on Superdari by superdarinama Ex P-1. The photographs of the same Ex. P-2.
5. After seeking due permission from the court, Ld. APP has cross-examined the witness. During cross-examination, PW-1 admitted that his mobile phone was snatched from his hand. He admitted that the mobile phone had not been stolen from his pocket. He admitted that at the time of running away with the mobile phone the accused handed over the mobile phone to his co-associate. He also admitted that the police officials apprehended both the accused persons at the spot. He also admitted that the accused Manish (the name of whom he came to know later on) had stolen his mobile phone. He admitted that the name of the accused person to whom his mobile phone was handed over by the accused Manish was Anshul (the name of whom he FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 3/28 came to know later on). The original complaint exhibited as Ex.PW-1/A bore his signature point A. The site plan was prepared by the police officials on his stance Ex.PW-1/B bearing his signature point A. The seizure memo of his mobile phone exhibited as Ex.PW-1/C bearing his signature point A. The arrest memo of the both accused persons and their personal search exhibited as Ex.PW1/D, Ex.PW1/E, Ex.PW1/F and Ex.PW1/G bearing his signature at point A respectively on all the papers.
6. During cross-examination of the witness by Ld. LAC for the accused persons, PW-1 stated that the alleged incident took place at about 7:30 am to 8:30 am. He remained at the spot for about 5 to 7 minutes while waiting for the bus. He deposed that someone had snatched his mobile phone from his hand. He admitted that someone had snatched his mobile from his hand nor from his pocket. He admitted that all the documents were prepared at PS Kotwali by the police. He admitted that he had signed all the documents at PS Kotwali. The police official had taken his statement only once. He admitted that the police official did not record his supplementary statement. He admitted that the police official did not come with him at the spot nor did they make any documents at the spot after the date of incident. He admitted that the police officials told him that they are the persons who had stolen his phone. He denied the suggestion that his phone was snatched by accused persons. He denied the suggestion that he was deposing falsely at the instance of the IO. He admitted that the place of the incident was a crowded area. He admitted that no public persons were interrogated by the IO in his presence. He FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 4/28 cannot say whether the CCTV camera was installed at the spot or not. He denied the suggestion that the CCTV camera and the public witness was not made in this case because the case was planted upon the accused persons at the instance of police officials.
7. PW-2 HC Dinesh Kumar in his examination-in-chief has deposed that on 14.06.2021, he along with SI Yogesh were on patrolling duty. During patrolling, when they reached near Kodiya Pul Red Light, they saw that one person was shouting ''Pakdo Pakdo'' and chasing two other persons. They saw that both the accused persons were coming towards them and after running a few steps, they apprehended both the accused persons. In the meanwhile, the person who was chasing the accused persons also arrived at the spot whose name was later revealed as Vijay Kumar. The complainant / Vijay Kumar told them that these two accused persons had snatched his mobile phone make OPPO color red. At the instance of SI Yogesh, he carried out cursory searches of both the accused persons whose names were later revealed as Manish s/o Sh. Vinod and Anshul s/o Sh. Subhash. The aforesaid mobile phone was recovered from the right pocket of the lower / trousers worn by the accused namely Anshul. SI Yogesh informed about the incident telephonically to the duty officer, PS Kotwali. After some time, IO / HC Radhey Shyam arrived at the spot and SI Yogesh handed over the custody of both accused persons along with the snatched mobile phone to him. IO recorded the statement of the complainant namely Vijay Kumar Ex.PW1/A and prepared rukka / tehrir and handed over the same to him for registration FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 5/28 of FIR. He went to the PS and after some time, he along with a copy of FIR and original rukka came back at the spot and handed over the same to IO / HC Radhey Shyam. IO prepared the site plan at the instance of complainant Ex.PW1/B bearing his signature at point B. IO seized the mobile phone vide seizure memo Ex.PW1/C bearing his signature at point B. IO arrested both the accused persons vide arrest memo Ex. PW1/D and Ex.PW1/E both bearing his signatures at point B and carried out their personal search vide search memos Ex.PW1/F and Ex.PW1/G both bearing his signatures at point B. IO recorded disclosure statements of both the accused persons vide disclosure memo Ex.PW2/A and Ex.PW2/B both bearing his signatures at point A. IO recorded his statement u/s 161 Cr.P.C and he was discharged. He has correctly identified both accused persons. He has also correctly identified photographs of case property i.e., snatched mobile phone make OPPO Ex.P2.
8. During cross-examination of the witness by Ld. LAC for the accused Anshul, PW-2 stated that he did not remember the exact duration for which he was posted in PS Kotwali but he was transferred to PCR on 05.10.2021. On 14.06.2021, his patrolling duty hours were from 5.00 am to 9.00 am. At the time of carrying out the cursory search of the accused, he along with SI Yogesh, complainant and both accused persons were present at the spot. The incident took place around 7.45 am approx. He admitted that the spot was crowded. He has not offered his search before searching the accused persons to any public persons or the accused persons. He went along with rukka for FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 6/28 registration of FIR at 11.45 am to PS Kotwali. He came back at the spot after the registration of FIR at 12.15 pm. He denied the suggestion that accused persons are falsely implicated in the present case. He denied the suggestion that all the documents were prepared while sitting at the PS. He denied the suggestion that no mobile phone was recovered from accused Anshul. He denied the suggestion that he was deposing falsely.
9. During cross-examination of the witness by Ld. LAC for the accused Manish, PW-2 admitted that he had not seen the accused persons snatching the mobile phone from the complainant. IO requested passers by to join the investigation but all of them refused by giving their reasonable excuses. No notice was served to them by the IO due to paucity of time. He denied the suggestion that the statement of the complainant was not recorded at the spot. He admitted that IO had informed the complainant about all the documents on which his signatures were taken. He denied the suggestion that both accused persons are falsely implicated in the present case. He denied the suggestion that he was deposing falsely.
10.PW-3 SI Yogesh in his examination-in-chief has deposed that on 14.06.2021, he alongwith Ct. Dinesh was on patrolling duty vide DD No. 14A Mark X1 . During patrolling, when they reached near Kodiya Pul Red Light, they saw that one person was shouting ''Pakdo Pakdo'' and chasing two other persons. They saw that both the accused persons were coming towards them and after running a few steps, they apprehended both the FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 7/28 accused persons. In the meanwhile, the person who was chasing the accused persons also arrived at the spot whose name was later revealed as Vijay Kumar. The complainant / Vijay Kumar told them that these two accused persons had snatched his mobile phone make OPPO color red. At his instance, Ct. Dinesh carried out a cursory search of both the accused persons whose names were later revealed as Manish s/o Sh. Vinod and Anshul s/o Sh. Subhash. The aforesaid mobile phone was recovered from the right pocket of the lower / trousers worn by the accused namely Anshul. He informed about the incident telephonically to the duty officer, PS Kotwali. After some time, IO / HC Radhey Shyam arrived at the spot and he handed over the custody of both accused persons along with the snatched mobile phone to him. IO recorded the statement of the complainant namely Vijay Kumar Ex.PW1/A and prepared rukka / tehrir and handed over the same to Ct. Dinesh for registration of FIR. Ct. Dinesh went to the PS and after some time, he along with a copy of FIR and original rukka came back at the spot and handed over the same to IO / HC Radhey Shyam. IO prepared the site plan at the instance of complainant Ex.PW1/B. IO seized the mobile phone vide seizure memo Ex.PW1/C bearing his signature at point C. IO arrested both the accused persons vide arrest memo Ex. PW1/D and Ex.PW1/E both bearing his signatures at point C and carried out their personal search vide search memos Ex.PW1/F and Ex.PW1/G both bearing his signatures at point C. IO recorded the disclosure statement of both the accused persons vide disclosure memo Ex.PW2/A and Ex.PW2/B both bearing his signatures at point B. IO recorded his statement u/s 161 Cr.P.C and he was discharged.
FIR No. 543/2021PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 8/28 He has correctly identified both the accused persons. He has also correctly identified photographs of case property i.e., snatched mobile phone make OPPO Ex.P-2.
11. During cross-examination of the witness by Ld. LAC for the accused Anshul, PW-3 stated that he was posted at PS kotwali since 07.04.2020. On 14.06.2021, his patrolling duty hours were from 5.00 am to 9.00 am. At the time of carrying out the cursory search of the accused, he alongwith Ct. Dinesh, complainant and both accused persons were present at the spot. The incident took place around 8:00 am approx. He admitted that the spot where the incident took place was crowded but where they apprehended both the accused persons was not a crowded place. Ct. Dinesh carried out the cursory search of the accused persons in the presence of the complainant and him. Ct. Dinesh has offered his search before searching the accused persons to both the accused persons and the complainant. Ct. Dinesh went along with rukka for registration of FIR at 11.45 am to PS Kotwali. He came back at the spot after the registration of FIR at 12.15 pm. He denied the suggestion that accused persons are falsely implicated in the present case. He denied the suggestion that all the documents were prepared while sitting at the PS. He denied the suggestion that no mobile phone was recovered from accused Anshul. He denied the suggestion that he was deposing falsely.
12.During cross-examination of the witness by Ld. LAC for the accused Manish, PW-3 admitted that he had not seen the accused persons snatching FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 9/28 the mobile phone from the complainant. IO requested passers by to join the investigation but all of them refused by giving their reasonable excuses. No notice was served to them by the IO due to paucity of time. He denied the suggestion that the statement of the complainant was not recorded at the spot. He admitted that IO had informed the complainant about all the documents on which his signatures were taken. He denied the suggestion that both accused persons are falsely implicated in the present case. He denied the suggestion that he was deposing falsely.
13.PW-4 ASI Radhey Shyam in his examination-in-chief has deposed that on 14.06.21, he was on emergency duty from 8.00 p.m. to 8.00 a.m. On that day, SI Yogesh telephonically informed him about the incident and at the instance of SI Yogesh and Duty Officer went to the spot i.e. Kodiya Pul Red Light. After reaching there, he met SI Yogesh, Ct. Dinesh, Complainant namely Vijay Kumar and two persons who are accused in the present case. SI Yogesh handed over the custody of both the accused persons to him. SI Yogesh told him that both the accused persons had snatched the mobile phone make Oppo, the color red belonging to the complainant. On enquiry, the name of both the accused persons was revealed Manish and Anshul. He recorded the statement of the complainant namely Vijay Kumar Ex.PW-1/A bearing his signature at Point B and prepared tehrir/rukka Ex.PW-4/A, bearing his signature at Point A and handed over the same to Ct. Dinesh for registration of FIR at about 11.45 a.m. Accordingly, Ct. Dinesh went to the PS and got the FIR registered and came back at the spot and handed over the FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 10/28 copy of FIR and original rukka to him. He prepared the site plan at the instance of complainant Ex.PW1/B, bearing his signature at Point C. He seized the mobile phone, make Oppo vide seizure memo Ex.PW-2/C, bearing his signature at Point D. He arrested both the accused persons vide memos Ex.PW-1/D and Ex.PW-1/E, both bearing his signatures at Point D and carried out their personal search vide memos Ex.PW-1/F and Ex.PW- 1/G, both bearing his signatures at Point D. He recorded the disclosure statement of both the accused persons Ex.PW-2/A and Ex.PW-2/B, bearing my signature at Point C. He recorded the supplementary statement of the complainant and he was discharged. Both the accused persons were taken to hospital and were medically examined and were later produced before the Concerned Court and were sent to JC. He recorded the statements of witnesses U/Sec.161 Cr.P.C and they were discharged. The case property was later on released on superdari vide superdarinama Ex.P-1. The panchanama of the mobile phone Ex.PW-4/B, bearing his signature at Point A. On completion of investigation, he filed the charge-sheet before the concerned court. He has correctly identified both accused. He has also correctly identified photographs of the case property i.e. Oppo Mobile phone Ex.P-2.
14.During cross-examination of the witness by Ld. LAC for the accused Manish, PW-4 admitted that the incident did not take place in his presence. He was not an eyewitness to the incident. All the documents were prepared at the spot. He remained at the spot for about 3 hours (9.30 a.m. to 12.30 p.m.). No FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 11/28 written notice was given to the public to join the investigation. No CCTV camera was installed at the spot and no photos of the accused persons were taken at the time of recovery. He denied the suggestion that the accused persons are wrongly implicated in the present matter and nothing incriminating was recovered from the accused person. He denied the suggestion that he was deposing falsely.
15.During cross-examination of the witness by Ld. LAC for the accused Anshul, PW-4 stated that the spot of the incident was a different place, however, the accused persons were apprehended from the different place. He admitted that the place of arresting accused persons was a crowded place. He asked family members of the complainant to join the investigation as a witness but they refused to join the investigation being ladies. He did not mention the names of the family persons of the complainant on documents prepared during the investigation. He denied the suggestion that the accused persons were wrongly implicated in the present matter and nothing incriminating was recovered from the accused person. He denied the suggestion that he was deposing falsely.
16.Both the accused persons have made a joint statement u/s 294 Cr.P.C dated 27.03.2023 and admitted an FIR as Ex.A-1, Endorsement as Ex.A-2 and certificate u/s 65(B) Indian Evidence Act as Ex.A-3 by giving statement without oath.
17.The prosecution evidence was closed on 04.08.2023. Statements of both the FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 12/28 accused u/s 313 read with section 281 Cr.P.C were recorded in which the accused Anshul stated that he had been falsely implicated in the case and the complainant is an interested party who planted and the case property is planted upon him at the instance of the complainant. He further stated that nothing was recovered from his possession. Accused Manish stated that he has been falsely implicated in this case and the complainant is an interested party who planted and the case property is planted upon him at the instance of the complainant. He stated that he has not committed any offence. He also submitted that he did not want to lead defence evidence. Final arguments in the matter were heard at length on 20.11.2023.
18.During final arguments, Learned APP for the state submitted that the prosecution has proved the case against both the accused beyond reasonable doubt as all the prosecution witnesses especially the eye-witness has supported its case and even the documentary evidence placed on record is cogent. He demanded that both the accused be convicted for offence u/s 356/379/411/34 IPC. Per Contra, learned LAC for the accused persons submitted that there are severe discrepancies in the prosecution evidence. He claimed that the testimony of eye-witness/complainant suggests that the complainant deposed regarding the theft of his mobile phone by some person and it did not talk about the offense of snatching nor the presence of any accused persons. It is further submitted that alleged recovery of case property is planted upon the accused persons as there is no public witness to the recovery. They pointed out that despite the availability of independent FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 13/28 witnesses they were not asked to be part of the investigation. They stated that both the accused have been falsely implicated and the case against them has not been proved beyond doubt, so he be acquitted of the offence u/s 356/379/34 and also u/s 411/34 IPC.
DISCUSSION, DECISION AND REASONS THEREON:
19.I have heard, Ld. APP for the state as well as counsels for the accused persons and also perused the record.
20. It is the cardinal principle of criminal jurisprudence i.e. presumption of innocence, the prosecution has to prove the guilt of the accused beyond reasonable doubt. In a criminal trial, the onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favor of the accused. In Rabindra Kumar Dey vs State Of Orissa 1977 AIR 170 it was held by Hon'ble Supreme Court that:
"Three principles of criminal jurisprudence which are well settled are as under:
(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty; and
(iii) that the onus of the prosecution never shifts."
21.Before proceeding further, let us first discuss the relevant provisions of law FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 14/28 for the purpose of the present case.
22. Let us first examine the provisions of law relevant for the purpose of this case. The essential ingredients to prove an offence under Section 379 IPC as follows:-
1. Accused had taken the movable property dishonestly.
2. Property was taken out of the possession of the complainant.
3. Property was taken out without the consent of the complainant.
4. The property was moved to such taking.
Section 356 IPC prescribed punishment for Assault or Criminal Force in an attempt to commit theft of a property carried by a person. The ingredients required to be fulfilled for the purpose of this section are :-
1. Use of Assault/criminal force by the accused.
2. Such Assault/criminal force was used against the person whose property is being stolen.
3. Such Assault/Criminal force was used in an attempt to commit theft of a property being worn/carried by such person.
23.In the case at hand, as per the prosecution case, both the accused in furtherance of their common intention had used criminal force on the complainant in order to commit theft of his mobile phone make OPPO in red color out of the possession of the complainant and on the same FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 15/28 day, the accused persons were apprehended, which led to the recovery of the mobile from their possession.
24. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
25. The sole eye-witness to the offence u/s 356/379/34 IPC is the complainant. Let us scan the testimony of the complainant first. A careful perusal of testimony of the complainant as PW-1 reflected that he deposed in his examination-in-chief that on 14.06.2021, while he was traveling with his family and boarding the bus, someone had stolen his mobile phone from his pocket. Here, it is pertinent to note that the alleged incident is dated FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 16/28 14.06.2021 and the testimony of the complainant was recorded on 30.08.2022, not much time has left between the two which leaves the scope for no major improvements by the reason of forgetfulness of human memory. As per the said testimony, the element of snatching a mobile phone from the hands of the complainant and witnessing the incident of snatching by the accused persons are absent. Further, PW-1 deposed that after the theft of his mobile phone, he deboarded the bus and ran behind that person and a police official present at the spot caught that person. Here also, one thing is notecable that the complainant only talked about the role of one person and apprehension of one person. PW-1 further deposed that police officials called him at the police post and there his stolen mobile phone was seized. The above version of the incident deposed by the complainant does not align with the story of the prosecution alleged in the first complaint of the complainant which is Ex. PW-1/A.
26.. Furthermore, PW-1 was cross-examined by the State, wherein he admitted the suggestion that his mobile phone was snatched from his hand and he further admitted that one accused snatched his mobile phone and while running away one accused handed over his mobile phone to the co-accused. All the documents including the first complaint which is Ex. PW-1/A and seizure memo of the case property which is Ex. PW-1/C are exhibited during cross-examination of the complainant.
27. During the cross-examination of the complainant on behalf of accused FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 17/28 persons, PW-1 again deposed that someone snatched his mobile phone. Then again, he denied the suggestion that his mobile phone was snatched by the accused persons. He even admitted the suggestion that the police officials have told him that they(accused persons) are the person who had stolen his mobile phone. He even admitted that all the documents were prepared at the PS Kotwali, even though his examination is silent about visiting the police station on the alleged date of incident. In view of above discussion, it is observed that the testimony of complainant suffers from various contradictions, inconsistencies and improvements, the testimony could be considered as shaky as to the material aspects of the alleged offence, i.e. the element of snatching of mobile phone, commission of theft of mobile phone by the accused persons, handing over of phone from one accused to other at the spot and recovery of mobile phone at the spot itself.
28. As far as the other witnesses of the prosecution are concerned, PW-2, PW-3 and PW-4 are admittedly not the eye-witness of the alleged offence of snatching and theft of the mobile of the complainant. Their testimony could at best prove the other proceeding after the commission of alleged offences.
29.Hence, there is only one witness to the offences punishable u/s 356/379/34 IPC. It is apt here to note that if the accused has to be convicted on the basis of the sole testimony of the injured/victim, then his testimony has to be first- rate. In the matter of Ganesan v. State Represented by its Inspector of Police Criminal Appeal No. 680 of 2020 decided on 14.10.2020, the topmost FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 18/28 court of the land explained the meaning of first-rate or sterling quality in the following words:
9.3 Who can be said to be a "sterling witness", has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC
21. In paragraph 22, it is observed and held as under:
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
30.Judged on the yardstick laid down in Ganesan's case, the testimony of the victim/complainant in the present case can not be relied upon to convict the accused persons as the testimony is inconsistent, contradictory and does not FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 19/28 inspire confidence. In view of the above discussion, in my opinion the prosecution is not able to prove its case against the accused persons for the offence punishable u/s 356/379/34 IPC.
31. Now the question before the court is whether the accused persons are guilty of the offence under Section 411/34 IPC. The essential ingredients to prove an offence under Section 411 IPC are:-
1. The property should be in possession of the accused.
2. Such property should be 'stolen property' i.e it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated.
3. The accused received the same knowing or having reason to believe the same to be stolen property.
32.In the case at hand, the stolen mobile phone of the complainant was allegedly recovered from the possession of the accused persons soon after the incident. As per the story of prosecution, three witnesses of the alleged recovery are PW-1, PW-2 and PW-3. A comprehensive look at the deposition of PW-1 reflected that the complainant has not alleged about the recovery of his stolen mobile phone from the possession of any of the accused persons. Neither the complainant deposed regarding taking part in any of the recovery proceedings of the stolen mobile phone. PW-1 has merely exhibited the seizure memo of the mobile phone which is Ex. PW-1/C and identified his FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 20/28 signature at point A. The statements of the complainant put entire recovery proceedings in question and also raises questions over the authenticity of the seizure memo. The benefit of these inconsistencies and contradictions in the testimonies of the witnesses shall accrue to the accused.
33.As per the said seizure memo, it is written that SI Yogesh has produced the stolen mobile phone of the complainant and SI Yogesh has reported that the accused Manish had snatched the said phone and handed over the same to the co-accused Anshul and the phone has been recovered from the accused Anshul. The ocular testimony of the complainant before the court and the documentary evidence i.e. seizure memo of the case property does not corroborate with each other as the complainant has not deposed qua recovery of phone from the accused Anshul in his presence. Further, the said seizure memo also does not mention the essential details of the recovery i.e. the time and place of recovery. It is also not mentioned "how" the recovery is affected, from which part of the body of the accused or clothes of the accused the recovery is made. The said recovery memo appears to be based on the statements of SI Yogesh.
34.Coming to the testimony of PW-2/Ct. Dinesh Kumar and PW-3/SI Yogesh, they deposed that they were on patrolling duty at Kodia Pul Red Light, where they apprehended both the accused and on cursory search of the accused Anshul, the stolen mobile was recovered from his possession from right side of the lower/trousers worn by him. The said recovery proceedings FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 21/28 are not recorded in the seizure memo of the case property. Since, the complainant has not supported the case of prosecution qua recovery proceedings from the accused persons, it is essential for the prosecution to prove the presence of both the recovery witnesses at the spot. However, the DD entries vide which PW-2 and PW-3 were present at/near the spot has not been placed proved on record. Hence, the very presence of the said witnesses at the spot has not been duly proved.
35.Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
"22.49. Matters to be entered in Register No. II :- The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
36.In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the patrolling of the police officials has not been proved on record.
37.Further, Section 100(4) Cr.P.C provides that "Before making a search of the FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 22/28 officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do".
38.At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
39.Admittedly, no public witness has joined the recovery proceedings in the present case. The place of incident is near the Bus Stand at around 07:45 pm and the alleged offence occurred while boarding the bus, hence, the availability of public at the spot could not be denied by the prosecution. PW- 1 has even admitted the suggestion that the place of incident was a crowded area. Even, PW-2 admitted the same suggestion put to him during his cross- examination by the accused. PW-2 and PW-3 also admitted that the public persons were asked to join the investigation by the IO, which also shows the FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 23/28 presence of the public at the place of recovery. PW-4/IO had categorically deposed that neither any public had joined the investigation nor had he given any notice to any public person who refused to join the investigation. Since the prosecution has failed to comply with the above said provisions of law, their story shall be viewed with doubt and suspicion.
40. Further, it has been held in Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
41.With regard to the personal search of the accused Anshul before the alleged recovery of stolen mobile phone from the possession of the accused, it was stated by the PW-2 Ct. Dinesh that he made a cursory search of the accused. During the examination-in-chief of the above witness, he has not mentioned FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 24/28 giving the opportunity to the accused to search himself before and then did the personal search of the accused so as to eliminate the chance of planting case property. During his cross-examination, when specifically asked to him, he deposed that he had not offered his personal search before the search of the accused. Contrary to this version, PW-3 deposed that the search was offered to the accused before conducting his cursory search, which creates further doubts in the story of prosecution. In the case of Orissa High Court reported as Rabindernath Prusty v/s State of Orissa, it was held that "One of the formalities that have to be observed in searching a person is that the searching Officer and other assisting him should give their search to the accused before searching the person of the accused."
42.In the present case, neither any search was offered to the accused nor the recovered case property has been sealed after its seizure and it remained unanswered in whose possession the case property was after its seizure, which again questions the safe custody of the case property as possibilities of the tampering of the case property and even planting of case property at this stage could not be negated.
43.It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 25/28 accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reason doubt in the prosecution case entitles the accused to acquittal.
44.It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
45.Now, I don't discount the possibility that there may be an element of truth in the prosecution story when considered as a whole, but the standard of proof in criminal cases dictates that the accused persons can be held guilty only when it is established that the accused has committed the offence. The prosecution has to traverse the distance between may have committed to must have committed in the light of cogent and unimpeachable evidence. Thus it is quite clear that the prosecution has failed to deliver on this end in the instant case.
46.Hence, considering the discussion made above and after such deliberation, it is my opinion that in the circumstances of the case, the evidence on record does not suffice in proving the guilt of the accused persons u/s 411/34 IPC FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 26/28 beyond reasonable doubt. The evidence on record in the instant case is not sufficient to warrant the conviction of the accused persons under section 411/34 IPC. Thus, the accused persons will have to be given the benefit of doubt.
CONCLUSION:
47.On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution for offence u/s 356/379/411/34 IPC. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, the accused Manish s/o Sh. Vinod and accused Anshul S/o Sh. Subhash are hereby acquitted for an offence punishable under Section 356/379/411/34 of Indian Penal Code.
48.File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court Digitally signed on 18th of December, 2023. MEENA by MEENA CHAUHAN CHAUHAN Date:
2023.12.18 16:47:56 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 27 pages and each page bears the initials of FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 27/28 undersigned and the last page bears the complete sign of undersigned.] FIR No. 543/2021 PS : Kotwali U/s 356/379/411/34 IPC State vs. Manish and Anr. Page No. 28/28