Delhi District Court
State vs . Amit Sharma Etc. on 1 May, 2019
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IN THE COURT OF SH. JITENDRA SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (CENTRAL DISTRICT) TIS HAZARI
COURTS, DELHI
FIR No. 8592015
PS: Paharganj
U/s. 392/411/34 IPC
Dated: 01.05.2019.
Case No.: 772016
STATE VS. AMIT SHARMA ETC.
Date of Institution : 20.02.2016
Date of Commission of offence : 24.12.2015
Name of the Complainant : Sh. Sanjay Kumar
Name parentage and address :
of the accused persons (1) Amit Sharma S/o Sh.
Dhaneshwar Sharma, R/o; C
355, Chinot Basti, Amar Puri,
Paharganj, Delhi.
(2) Ashu @ Aryan S/o Sh.
Ramesh Bharat, R/o; H.No.
7991, Gali No. 9, Multani
Dhandha, Nabi Karim, Delhi.
(3) Prakash @ Akash @ Chintu
S/o Sh. Daulat Ram, R/o; H.No.
C74, Gali No. 10, Chinot Basti,
Multani Dhandha, Nabi Karim
Delhi.
Offence Complained of : U/s. 392/411/34 of IPC
Plea of the accused persons : Pleaded not guilty.
FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 1/20
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Final Order : Acquitted.
Date for reserve for order : 01.05.2019.
Date of announcing of order : 01.05.2019.
JUDGEMENT
BRIEF FACTS
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 8592015, Police Station: Paharganj. The case of the prosecution as per the complaint of the Complainant is that on 24.12.2015, at about 8.45 pm, Chitra Gupta Road, near R.K. Ashram Metro Station red light, Paharganj, New Delhi, within the jurisdiction of Police Station Paharganj, accused persons in furtherance of their common intention robbed the complainant namely Sanjay Kumar by putting him under the fear of causing instant hurt with a knife and committed theft of this mobile phone make Spice M524 having IMEI No. 911319502593280 and cash amount of Rs. 1500/. Further, on 25.12.2015, the stolen mobile phone of the complainant was recovered from the possession of accused Parkash @ Akash @ Chintu, while the stolen currency amount of Rs. 1000/ was recovered from the possession of accused Amit Sharma and Rs. 500/ was recovered from the possession of accused Parkash @ Akash @ Chintu from the place specified as mentioned in the seizure memo Mark A, B and C. Further, accused persons have retained the possession of the stolen mobile phone and cash knowing fully well that it were stolen articles.
FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 2/20 3 PROCEEDINGS AFTER FILING OF CHARGE SHEET
2. On conclusion of the investigation, a charge sheet was filed against accused U/s. 392/411/34 IPC. Thereafter, a charge Under Section 392/411/34 IPC was framed against accused persons on 02.04.2016, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. The prosecution has examined six witnesses in all in the present case.
The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case, which are follows:
PW1 is ASI Shambu Nath, who proved on record DD Entry no. 23A, which is Ex. PW1/A1, copy of FIR, which is Ex. PW1/A, endorsement on rukka, which is Ex. PW1/B and certificate u/s. 65B of Evidence Act. The said witness was not cross examined on behalf of the defence. PW2 is Sh. Sanjay Kumar, who stated on oath that on 24.12.2015, at about 8.45 pm, he was going to Rama Krishna Metro Station on foot and when he reached Chitragupta Road, near red light Metro Station, three persons came on motorcycle and stopped their motorcycle. He deposed that two of them came near to him and snatched his mobile phone make Spice Model M24 and he was having purse containing Rs. 1500/ were also snatched by them. When, he protested they threatened him to kill on the point of knife. He further deposed that third person was on the motorcycle and was threatening him to keep quite, however, they are threatening him to kill with knife. He further deposed that thereafter they all ran away towards Paharganj on motorcycle. He further deposed that thereafter, he went to Police Station Paharganj, where he lodged a complaint about the incident which is Ex. PW2/A. The said witness was cross examined by the Ld. APP for the State as well FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 3/20 4 as Ld. Respective Counsel for the defence.
PW3 is ASI Ranbir Singh, who stated on oath that in the intervening night of 2425.12.2015, he was posted as Constable at Police Station Paharganj and was on emergency duty with IO/SI O.P. Mandal. IO had got registered the FIR on the complaint of the complainant Sh. Sanjay Kumar. IO had arrested accused Amit Sharma, Ashu Aryan and Prakash @ Akash @ Chinu, vide arrest memo, which are Ex PW3/A, Ex. PW3/B and Ex. PW3/C. Their personal search memo were also conducted, vide Ex. PW3/D, Ex. PW3/E and Ex. PW3/F. He further deposed that the Spice mobile recovered from the possession of accused Ashu was seized, vide memo Ex. PW3/G. One Sony Xperia mobile and Rs. 500/ recovered from accused Parkash @ Akash @ Chinu were seized, vide seizure memo Ex. PW3/H and Ex. PW3/I and Rs. 1000/ recovered from accused Amit Sharma, vide seizure memo Ex. PW3/J. He further deposed that one motorcycle Pulsar bearing registration no. DL10SC8600 recovered from the accused Parkash @ Akash was seized, vide seizure memo Ex. PW3/K and case property was deposited in the malkhana.
The said witness was cross examined by the Ld. Counsel for the defence. PW4 is SI OP Mandal, who stated on oath that on 24..12.2015, he was posted at PS Paharganj as SI. On that day complainant came at the PS and narrated the whole story. He recorded his statement, which is already Ex. PW2/A and after that he prepared the rukka, which is already Ex. PW1/B. FIR was registered. He further deposed that thereafter, he alongwith Ct. Ranbir went to the spot with complainant and prepared the site plan, which is Ex. PW4/A. He further deposed that on the same night, he received information from DO of PS Paharganj that some of the accused persons of the present case were apprehended by the patrolling FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 4/20 5 party. He further deposed that he reached over there and seized one mobile phone Spice handed over to him by Ct. Nagesh, which was recovered from accused Ashu, vide seizure memo Ex. PW3/G and he also seized one mobile phone make SonyXperia, which was handed over to him by HC Ram Vilas as the same was recovered from the accused Prakash, vide seizure memo already Ex. PW3/H. He further deposed that he also seized one currency notes handed over to him by HC Ram Vilas and the same was recovered from the accused Parkash, which is already Ex. PW3/I. He further deposed that he seized two currency notes of Rs. 500/ handed over to him by HC Arvind as the same was recovered from accused Amit Sharma, which is already Ex. PW3/J. He also seized one Pulsar motorcycle bearing registration no. DL10SC8600, vide seizure memo already Ex. PW3/K. He further deposed that he arrested the accused persons, vide memos already Ex. PW3/A, Ex. PW3/B and Ex. PW3/C and personal search of the accused persons were also conducted, vide memo already Ex. PW3/D, Ex. PW3/E and Ex. PW3/F. He prepared the pointing out memo Ex. PW4/B. The said witness was cross examined by the Ld. Counsel for the defence. PW5 is ASI Arvind, who stated on oath that on 24.12.2015, he was posted at PS Paharganj as HC. On that day, he was on petrolling duty alongwith HC Ram Vilas and Constable Nagesh. At about 10.45 pm, they reached near Pul Paharganj, where one secret informer met them and stated that some persons, who were indulging in chain snatching would come to gali tail mil to sell some mobile phone to another person namely Kalia. He further deposed that on the said information they constituted raiding party and went to gali tail mill and they their position. He further deposed that at about 11.20 pm, three persons came on black colour FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 5/20 6 pulser motorcycle, secret informer identified them. After this they over powered them and apprehended them. He further deposed that they made enquirers from them and conducted personal search and on personal search they found to mobile phones make Soni Xperia, black colour and Spice White Colour. He further deposed that on further enquiry they disposed their name to be Amit Sharma, Ashu and Parkash. He further deposed that on further enquiry they disposed that they have snatached Soni Xperia phone from East Patel Nagar and Spice Mobile Phone from the area near R.K. Asharam Metro Station. He further deposed that thereafter, HC Ram Vilas informed the apprehended and recovery to the PS Paharganj. After some time, SI O.P. Mandal along with Ct. Ranbir came at the spot and they handed over all the three apprehended persons and the recovered mobile pones to SI O.P. Mandal. He further deposed that SI O.P. Mandal seized the recovered mobile phone, vide memos already Ex. PW3/G and Ex. PW3/H. SI O.P. Mandal also seized the motorcycle, vide memo already Ex. PW3/K. He further deposed that SI O.P. Mandal also seized one currency note of Rs. 500/ denomination recovered from accused Prakash and also seized two currency note of Rs. 500/ denomination recovered from accused Amit Sharma, vide memo already Ex. PW3/I and Ex. PW3/J. He further deposed that SI O.P. Mandal also arrested and personally searched all the three apprehended persons, vide memos already Ex. PW3/A, Ex. PW3/B and Ex. PW3/C, Ex. PW3/D, Ex. PW3/E and Ex. PW3/F. He further deposed that thereafter, IO/SI O.P. Mandal sealed the currency notes with the seal of OPM before seizing them. He further deposed that the seal after use was handed over to Ct. Nagesh. He further deposed that they alongwith apprehended persons and recovery case property to PS, FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 6/20 7 where SI O.P. Mandal recorded his statement and he was relieved thereafter.
The said witness was cross examined by the Ld. Counsel for the defence. PW6 is ASI Ram Vilas, who deposed on the same lines as deposed by PW5 ASI Arvind.
The said witness was cross examined by the Ld. Counsel for the defence.
STATEMENT OF ACCUSED PERSONS U/S. 313 OF CR.P.C.
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused persons were recorded, wherein they stated that they do not want to lead their defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused persons.
7. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 7/20 8 story whereby such reasonable doubt(s) entitles the accused persons to acquittal.
INGREDIENTS OF SECTION 392/411 OF INDIAN PENAL CODE
8. To prove the offences U/s. 392/411 of IPC, the prosecution is required to prove the following: Section 392 IPC
(a) that the accused committed theft;
(b) that he caused or attempted to cause to some person (a) death, hurt or wrongful restraint: or (b) fear of instant death, or of instant hurt, or of instant wrongful restraint;
(c) that he did as above (a) in committing such theft; or (b) in order to commit such theft, or (c) in carrying away, or attempting to carry away, the property obtained by such theft;
(d) that he acted as in (ii) voluntarily.
Or prove:
(a) that the accused committed extortion;
(b) that he was, at the time of committing it, in the presence of the person so put in fear;
(c) that he committed it by putting that person or some other person in fear of instant death, or of instant hurt, or of instant wrongful restraint;
(d) that he thereby induced the person so put in fear to deliver up then and there the thing extorted.
SECTION 411 IPC
(a) that the property in question is stolen property.
(b) that the accused received or retained such property.
(c) that he did so dishonestly.
FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 8/20
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(d) that he knew or had reason to believe that the property was stolen property.
9. I have heard the contention of Ld. APP for State as well as Ld. Legal Aid Counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined six witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the robbery has been committed by the accused persons and the same were recovered from the possession of the accused persons. In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused persons or not.
REASONS FOR THE DECISION WITH THE RESPECT OF THE SECTION 392/34 OF INDIAN PENAL CODE
10. The prosecution had examined the complainant Sh. Sanjay Kumar, who stated on oath that on who stated on oath that on 24.12.2015, at about 8.45 pm, he was going to Rama Krishna Metro Station on foot and when he reached Chitragupta Road, near red light Metro Station, three persons came on motorcycle and stopped their motorcycle. He deposed that two of them came near to him and snatched his mobile phone make Spice Model M24 and he was having purse containing Rs. 1500/ were also snatched by them. When, he protested they threatened him to kill on the point of knife. He further deposed that third person was on the motorcycle and was threatening him to keep quite, however, they are threatening him to kill with knife. He further deposed that thereafter they all ran away towards Paharganj on motorcycle. He further deposed that thereafter, he went to Police Station Paharganj, where he lodged a complaint about the incident which is Ex. PW2/A. FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 9/20 10
11. Establishing the identity of the accused persons: In the case where the accused persons are not known to the complainant and the complainant for the first time has the opportunity to see the accused persons at the time of commission of offence, the prosecution is required to prove beyond reasonable doubt the identity of the accused persons.
In the instant matter, it has been brought out in the cross examination of complainant (PW2) Sh. Sanjay Kumar that at about 12 mid night, he received a call from police station that mobile phone has been recovered. Thereafter, he reached at the police station at around 1.00 am and at that time, he was shown 4/5 persons and identified three persons, who snatched his mobile phone and purse. Now the question arises what would be the evedentiary value regarding the identity of the accused persons, in the circumstance where the Investigating Officer fails to conduct proper Test Identification Parade to establish the identity of the accused persons ? The Hon'ble Supreme Court in the case titled as Budhsen and another Vs. State of UP, AIR 1970 Supreme Court 1321(I) has laid down the necessity for conducting Test Identification Parade by the Investigating Officer during investigation. The relevant extract of the same is reproduced below for ready reference: ".....7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in the court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the /particular accused persons and the details of the part which the accused played in the crime in question with FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 10/20 11 reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. There may, however, be exception to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the office, who are not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Identification proceedings in their legal effect amount simply to this, that certain persons are brought jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute substantive evidence.
These parades are essentially govern by section 162 , Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the change of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (I) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the Court which is to judge the value of the identification evidence make take them into consideration in the appreciation of that evidence. The power FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 11/20 12 to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court...".
12. Calling the complainant at the police station and getting the accused persons identified without proper Test Identification Parade raises serious doubt to the case of the prosecution. Now the question arises whether it will be safe to convict the accused persons in the case where proper TIP is not conducted by the IO and the complainant identifies the accused persons in the police station ? The Hon'ble Supreme Court in the case titled as Kanan and other Vs. State of Kerala 1979 SCC (Cr.)621 has observed that it will be only unsafe to rely on bare testimony regarding the identification of the accused for the first time in the court. The relevant extract of the same is reproduced below for ready reference: "....It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observation. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only one. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 12/20 13 first time in Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T.I. parade and got the identification made before the witness was called upon to identify the appellant in the Court. On this ground alone, the testimony of PW 25 become unworthy of credence and must be excluded from consideration..".
13. In the case in hand the Investigating Officer had moved the application of Test Identification Parade, which was rejected by the accused persons on the ground that they were shown to the complainant in the Police Station. The reason for refusal seems to be valid in view of the admitted fact that the complainant identified the accused persons in Police Station. On the point of identification the case of the prosecution is that the complainant had identified all the accused persons in front of Court no. 247, Tis Hazari Courts, which has been categorically denied by the complainant. The relevant extract of cross examination is reproduced herein below for ready reference: "..It is incorrect to suggest that on 02.01.2016, I had identified all the accused persons in front of Court No. 247, Tis Hazari Courts, Delhi...".
14. The alleged fact of identification in front of Court No. 247, Tis Hazari Courts do not find mention in the charge sheet and in the testimony of PW4 SI O.P. Mandal, who is the Investigating Officer of the case.
15. In view of the above discussion this court is not hesitant to hold that the prosecution has miserably failed to establish the identity of the accused persons, therefore, they are entitled to be acquitted for offence u/s. 392/34 of Indian Penal Code.
REASONS FOR THE DECISION WITH THE RESPECT OF THE SECTION 411 OF INDIAN PENAL CODE
16. PW5 is ASI Arvind, who stated on oath that on on 24.12.2015, he was FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 13/20 14 posted at PS Paharganj as HC. On that day, he was on petrolling duty alongwith HC Ram Vilas and Constable Nagesh. At about 10.45 pm, they reached near Pul Paharganj, where one secret informer met them and stated that some persons, who were indulging in chain snatching would come to gali tail mil to sell some mobile phone to another person namely Kalia. He further deposed that on the said information they constituted raiding party and went to gali tail mill and they their position. He further deposed that at about 11.20 pm, three persons came on black colour pulser motorcycle, secret informer identified them. After this they over powered them and apprehended them. He further deposed that they made enquirers from them and conducted personal search and on personal search they found to mobile phones make Soni Xperia, black colour and Spice White Colour. He further deposed that on further enquiry they disposed their name to be Amit Sharma, Ashu and Parkash. He further deposed that on further enquiry they disposed that they have snatched Soni Xperia phone from East Patel Nagar and Spice Mobile Phone from the area near R.K. Ashram Metro Station. He further deposed that thereafter, HC Ram Vilas informed the apprehended and recovery to the PS Paharganj. After some time, SI O.P. Mandal along with Ct. Ranbir came at the spot and they handed over all the three apprehended persons and the recovered mobile pones to SI O.P. Mandal. He further deposed that SI O.P. Mandal seized the recovered mobile phone, vide memos already Ex. PW3/G and Ex. PW3/H. SI O.P. Mandal also seized the motorcycle, vide memo already Ex. PW3/K. He further deposed that SI O.P. Mandal also seized one currency note of Rs. 500/ denomination recovered from accused Prakash and also seized two currency note of Rs. 500/ denomination recovered from accused Amit Sharma, vide memo FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 14/20 15 already Ex. PW3/I and Ex. PW3/J. He further deposed that SI O.P. Mandal also arrested and personally searched all the three apprehended persons, vide memos already Ex. PW3/A, Ex. PW3/B and Ex. PW3/C, Ex. PW3/D, Ex. PW3/E and Ex. PW3/F. He further deposed that thereafter, IO/SI O.P. Mandal sealed the currency notes with the seal of OPM before seizing them. He further deposed that the seal after use was handed over to Ct. Nagesh. He further deposed that they alongwith apprehended persons and recovery case property to PS, where SI O.P. Mandal recorded his statement and he was relieved thereafter.
17. The remaining witness examined by prosecution was PW6 ASI Ram Vilas, whose testimony is akin to that of PW5 ASI Arvind and thus need not to be reiterated.
18. It is clear from the testimonies of PW5/ASI Arvind and PW6/ASI Ram Vilas, when they were on patrolling duty in the area of PS Paharganj and said police party recovered the stolen case properties from the possession of the accused persons, which were wanted in the present case. Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "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 personality by FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 15/20 16 signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
19. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said PW5 ASI Arvind and PW6 ASI Ram Vilas. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of PW5 and PW6 and other police officials including IO, near the place of the recovery. It is also worth mentioning that as per the case of the prosecution that police officials who apprehended the accused persons were posted at concerned PS at the time of incident. However, no DD entry in support of this fact has been placed on record which PW5 and PW6 had left the PS office before the recovery and by which they had arrived at PS after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused and the recovery of the stolen case properties, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule.
At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 16/20 17 oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
20. Furthermore, though it appears from the testimony of PW5 ASI Arvind and PW6 ASI Ram Vilas that the recovery in question was effected from a crowded place, and public presence throughout but despite that PW5 and PW6 made no efforts whatsoever to join public witnesses to the recovery proceedings allegedly conducted by them. PW5 ASI Arvind and PW6 ASI Ram Vilas have categorically admitted in their cross examination that they asked public persons by to join the raiding party after disclosing the fact to them, but nobody join it and left the spot without disclosing their names and address. From the aforementioned circumstances, it is clear that the place of alleged recovery was a public place and despite that PW5 and PW6 did not made any sincere effort whatsoever to join the public witnesses to the recovery proceedings headed by them, which if would have done might have added strength to the tainted recovery proceedings.
21. In circumstances like the present one, the PW5 and PW6 should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused was already apprehended, since after the apprehension of the accused, there was no possibility of accused persons escaping their arrest or their crime going undetected. At least in these facts and circumstances of the case, in FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 17/20 18 my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 18/20 19 will result into enmity between them and the petitioner".
"4. 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 the witnesses from the public had refused 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 nonjoining 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".
22. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. 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".
"6. In the present case, the State examined two witnesses namely, Nirmal Kumar Jha SI who appeared as PW8 and HC Sukhpal Singh, PW9. Both the witnesses supported the prosecution version in terms of the recovery of opium FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 19/20 20 from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo type statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
23. During the cross examination of PW3 ASI/Ranbir Singh, it has been brought out that the accused persons were arrested from a public place, where the public persons were to & for near the spot. Non joining of public witnesses at the time of recovery raises serious doubt to the case of prosecution.
24. In view of the above discussion, I am of the considered opinion that the prosecution has miserably failed to prove the recovery of stolen properties from the possession of the accused persons.
CONCLUSION
25. Being guided by abovesaid case law, the possibility of false implication of the accused persons in the instant case by the police officials against accused persons can not be ruled out beyond doubt, which makes the story of prosecution qua the incident.
26. From the aforesaid testimonies, I am of the view that the prosecution has failed in proving the connection between the stolen case property and recovery of the stolen case properties wanted in the present FIR and the complicity of the accused persons.
27. The aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 20/20 21 against the accused beyond reasonable doubt, whereby the accused persons have become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused persons, whereby the accused persons are acquitted of the charges levelled against them.
Digitally signedAnnounced in the open by JITENDRA court today itself i.e. 01.05.2019. JITENDRA SINGH SINGH Date:
(JITENDRA SINGH)2019.05.10 14:03:18 +0530 ADDITINAL CHIEF METROPLITAN MAZISTRATE TIS HAZARI COURTS, CENTRAL DELHI,01.05.2019 FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 21/20 22 FIR No. 859/15, PS Paharganj, State Vs Amit Sharma 22/20