Delhi District Court
Ranjeet @ Rana S/O Mahavir Singh vs The State on 27 November, 2013
In the court of Additional Sessions Judge03 (NE), Room no.
53, Karkardooma Courts, Delhi.
Cr. Appeal no. 16/12
PS Karawal Nagar
Ranjeet @ Rana S/o Mahavir Singh
R/o House No. 560, Gali no. 11,
Shaheed Bhagat Singh Colony,
Karawal Nagar, Delhi94
... Appellant
Versus
The State, N.C.T. of Delhi
...Respondent
Date of filing : 18.12.2012
Date of Institution : 19.12.2012
Decision reserved on : 20.11.2013
Date of decision : 27.11.2013
JUDGMENT: 1.1 (Introduction) Appellant Ranjeet @ Rana s/o Mahavir Singh was caught red handed and arrested on the complaint of Smt. Munni Devi w/o Chattar Singh (PW1). He was charge sheeted and charged u/s 356/379/411 for allegations that on 28.09.2011 at about 1.40 PM in gali no. 23, near Jaya Bharti Cr. A. no. 16/12 1/9 Public School, SBS Colony, Karawal Nagar, he snatched gold chain from the neck of complainant and while making attempt of theft of gold chain, he used criminal force or assaulted her vis a vis the appellant was apprehended by the public persons at the spot and the chain was recovered from his right pocket. The appellant / accused pleaded not guilty to the charge framed and claimed trial.
At the stage of evidence, five witnesses were examined, out of them PW1 Smt. Munni Devi is author of FIR, PW2 HC Hoshiyar Singh was duty officer and recorded the formal FIR and PW3 Ct. Devender was accompanying IO PW5 SI Neeraj Kumar while visiting the spot and investigation was carried and PW4 SI Manoj recorded supplementary statement of Munni Devi, when he became IO of the case. Statement of appellant / accused u/s 313 Cr PC was also recorded, however, he had denied all the allegations, pleading his innocence but without opting for defence evidence.
1.2 (Finding of trial court) - The trial court of Sh. M. P. Singh, Metropolitan Magistrate considered the record as well as the submission of both sides, after analyzing them, the Cr. A. no. 16/12 2/9 appellant was acquitted of charge u/s 411 IPC on the ground that when appellant was caught red handed with the case property, there was no occasion to held him guilty u/s 411 IPC. However, the appellant was held guilty u/s 356/379 IPC, by judgment dated 1711.2012. By order dated 19.11.2012, the appellant has been sentenced to RI for one year and fine of Rs. 500/, in default one month SI u/s 356 IPC and RI for 18 months and fine of Rs. 1000/, in default SI for one month u/s 379 IPC while extending the benefit of section 428 Cr PC, and both the sentences were directed to be run concurrently.
2. (Plea in appeal) - The appellant assails the impugned judgment and order on point of sentence that the trial court had given much weight to examination in chief of witnesses than appreciation of cross examination of such witnesses like statement of PW1 Munni does not inspire confidence on the ground that she failed to tell where photographs of her chain were taken by the police, there was no public or independent witness joined by the police, besides there are contradictions amongst the statement of PW1, PW3 and PW5, which put many doubt in the story of prosecution and appellant deserves Cr. A. no. 16/12 3/9 benefit of such doubt. There are also many factors, which trial court failed to appreciate, as police had received information through police control room but no witness was examined who called the police, the complainant /PW1 came in the court while wearing the chain, how the story of prosecution could be believed that her chain was removed or stolen. It was a common thorough place but no public witness has been joined, consequently investigation is not fair. The record speaks that complainant is not aware, where her statement was recorded. However, these aspects have not been appreciated by the trial court, that is why appellant came in the form of appeal.
Otherwise, Ld. Counsel Sh. Dhruv Charitra Verma, Advocate for appellant emphasizes that the trial court has acquitted the appellant u/s 411 IPC, there was no occasion to held him guilty u/s 356/379 IPC. The impugned judgment and order is bad and arbitrary, without applying judicial mind. The appellant has been held guilty under surmises and conjectures. The appellant deserves acquittal.
3. (Plea of State) Whereas Sh. R. K. Pandey, Ld. Addl. PP for the State has opposed the appeal on all counts, firstly the Cr. A. no. 16/12 4/9 contentions being raised in the appeal were also contested before the trial court and each aspects have been answered by reasoned judgment. Therefore, findings have been given after considering all these aspects. Since the appellant was caught red handed, chain was recovered from his pocket then and there, there was no occasion to held the appellant guilty u/s 411 IPC, otherwise on the eve of his acquittal of charge u/s 411 IPC it does not mean that he is to be acquitted for charges u/s 379/356 IPC, which has been proved beyond all doubts. Since the chain was released on supurdagi, that is why witness may have appeared with the case property, it cannot be considered fatal to the prosecution case. The complainant has narrated all the aspects inconsistently, therefore, there is no merit in the appeal to set aside either the judgment or order on point of sentence. So far plea of public witnesses are concerned, it was also considered by the trial court. The appeal is liable to be dismissed.
4. (Findings) - The rival contentions are assessed in the light of material on record, the findings given by the trial court and the contentions raised in appeal. One of the vital aspect Cr. A. no. 16/12 5/9 contested is that complainant / Munni Devi came in the court wearing her chain, firstly she was not cross examined on this aspect, secondly the gold chain was released to her on supurdagi (supurdginama Ex.PW1/E is matter of record).
The second vital aspect is that when chain was recovered, it is was not sealed as per law and how it was photographed, whereas as per seizure memo Ex. PW1/A, the chain was sealed by the IO with seal impression of 'NK'. As per memo Ex. PW1/A and after order to release the same, the same was photographed and it was released to the complainant. To that extent objections raised are not plausible. Now other issues are taken.
5. So far other pleas of appellant are concerned, the same does not carry any merit and appeal is dismissed for the following reasons :
(i) The impugned judgment not only taken into account the statements (i.e examination in chief of witnesses) but also the plea / defence put to witnesses during their cross examination. To say there is balance approached while analyzing the statement of witnesses.
(ii) PW1 admits that there was crowd at the spot and police did not record statement of any public person, it would not give any benefit to the appellant, as complainant / PW1 in her Cr. A. no. 16/12 6/9 statement to the police and in the court reiterated a common fact that appellant was caught red handed and he was handed over to the police.
(iii) PW1 was cross examined on the point of ownership of chain and paragraph 11 of the Judgment answers that in cases of theft or of stolen property, such kind of plea does not sustain in law.
(iv) PW1 was also cross examined of her failure to give account as to where the chain was photographed by the police, the appellant cannot derive any benefit, since she had also explained not only mark / words appearing in chain as well as from where she got the same.
(v) So far calling the police is concerned, there is no straightjacket formula that in each case caller to the police may be material witness. A caller may or may not be eye witness.
Since appellant was apprehended at spot and he was handed over to the police, consequently it would not fatal the case of prosecution in case caller is not examined; otherwise nothing has come on record in cross examination of any of the witnesses that caller to the police was a material witness and his non examination is fatal to the case.
Accordingly, the findings given by the trial court in judgment dated 17.11.2012 is affirmed while responding to the issues raised in appeal. The appeal is dismissed. Cr. A. no. 16/12 7/9
6. Now the another question left to be decided is in respect of order on point of sentence. The appellant requests that he is a poor person and he has to look after his five younger brothers, one sister and ailing parents and the same may be considered as mitigating circumstances. Whereas Ld. Addl. PP for the State has reservations that firstly the gravity of circumstances are to be seen, secondly the trial court has already considered these aspects and that is why reasonable imprisonment has been awarded, it does not require any interference.
Now on the one side appellant is suggesting and proposing mitigating circumstances and the State requests and points out not only aggravating circumstances vis a vis the leniency has already been exercised in favour of appellant. It is a settled law that sentence should be proportionate to the offence committed. What appears from the order dated 19.11.2012, it comprises three parts, the substantive punishment, fine and benefit of section 428 Cr PC along with direction that both the sentences will run concurrently. Section 356 IPC prescribes maximum punishment of two years and section 379 IPC prescribes maximum punishment of three Cr. A. no. 16/12 8/9 years, besides fine. Therefore, order dated 19.11.2012 is a balanced order being proportionate to offence committed, family background and status of appellant. Similarly financial aspects have also been considered and nominal fine of Rs.500/ and Rs. 1000/, under each head, has been awarded in respect of offences for which appellant was held guilty. Consequently, there is no merit in the appeal on the point of sentence. The impugned order is also confirmed. The appeal is also dismissed on this count.
Trial court record be sent back along with copy of judgment. The appeal file be consigned to record room.
Announced in open court (Inder Jeet Singh)
5 Agrahayana, SAKA 1935 Additional Sessions Judge03
(NE District), Room No.53,
IInd Floor, Karkardooma Courts,
Delhi.
27.11.2013
Cr. A. no. 16/12 9/9