Delhi District Court
State vs . Ravinder & Anr. on 20 October, 2009
FIR No. 145/01
P.S.: Jama Masjid
U/s.: 356/379/411 IPC
IN THE COURT OF SH. SIDHARTH MATHUR, METROPOLITAN
MAGISTRATE, CENTRAL - 02, TIS HAZARI COURTS, DELHI
State Vs. Ravinder & Anr.
FIR No.: 145/01
P.S.: Jama Masjid
U/s.: 356/379/411 IPC
JUDGMENT
1. S. No. of the Case : 30/JM/01 2. Date of Commission of Offence : 10.05.2001 3. Date of institution of the case : 13.08.2001 4. Name of the complainant : Smt. Roop Kali
5. Name of accused, parentage & address. :(1) Ravinder S/o Ram Hazoor R/o H. No. 1/3625, Ram Nagar, Mansarover Park, Shahdara, Delhi (2) Tek Chand S/o Trilok Chander R/o. 1/3647, Ram Nagar, Mansarover Park, Shahdara, Delhi
6. Offence complained or proved : 356/379/411 IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Accused Ravinder Convicted.
Accused Tek Chand Acquitted.
9. Date of Final Order : 20.10.2009 20.10.2009 Page 1 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC JUDGMENT
1. The case set up by the prosecution is that accused Ravinder with the use of criminal force on 10.05.2001 had snatched the gold chain being worn by complainant Smt. Roop Kali against her consent and ran away with it, whereafter the present FIR was lodged by the complainant.
It has been further averred by the prosecution that after lapse of some time of the above chain snatching episode, accused Ravinder & Tek Chand were arrested by S.I. Rameshwar Prasad in FIR No. 181/01, wherein the said police official had recorded the respective disclosure statements made by both the accused whereby accused Ravinder in his disclosure statement revealed that he had snatched the golden chain of the complainant on 10.05.2001, which chain was later handed over by him to the coaccused Tek Chand for selling the same in the open market. The coaccused Tek Chand in his separate disclosure statement revealed that he had retained the golden chain stolen in the instant case after receiving the same from accused Ravinder for selling it in the open market. Accused Tek Chand had also allegedly disclosed that he can assist the police party in effecting the recovery of the said golden chain whereafter coaccused Ravinder got the said golden chain recovered 20.10.2009 Page 2 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC from his residence.
During the investigation, accused Ravinder refused to participate in his TIP, while the TIP of the case property was conducted before the Court on 23.07.2001, wherein the complainant had identified the gold chain recovered in this case to be her own, which accordingly was released to the complainant on superdari.
After the completion of the usual investigation, the challan in the present case was filed against both the accused on 13.08.2001 in the Court.
2. After the filing of the challan, the cognizance of the offences was taken by the Court whereby provisions of Section 207 Cr. P.C. were accordingly complied on 13.08.2001. After the compliance of provisions of Section 207 Cr. P.C., the accused persons were given a hearing whereupon the following charges were framed against the accused persons respectively: A) Accused Ravinder was charged under Section 356 IPC for using criminal force against the complainant on 10.05.2001 while snatching the golden chain being worn by her and also under Section 379 IPC for committing theft of the said golden chain being worn by the complainant on 10.05.2001; and 20.10.2009 Page 3 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC B) Accused Tek Chand was charged under Section 411 IPC for dishonestly retaining the said golden chain belonging to the complainant, despite having reason to believe that the said golden chain was a stolen property.
Needless to say, both the accused pleaded "Not Guilty" to the charges respectively framed against them and consequently claimed trial.
3. During the course of the trial, the prosecution had examined as many as 8 witnesses.
The prosecution had examined the complainant as PW1 while the Duty Officer, namely, ASI Rishi Pal, who recorded the present FIR Ex. PW5/A at P.S. Jama Masjid was examined as PW7.
The IO of the case, namely, S.I. Yogender Nath was examined as PW5. PW4 was Ct. Subhash, who had accompanied the S.I. Abdul Kalim to the spot of the chain snatching after receipt of the information of the instant chain snatching episode.
The recovery witnesses of the impugned chain, namely, Ct. Charan Pal & S.I. Rameshwar Prasad were respectively examined as PW 2 & PW6.
S.I. Abdul Kalim who initially reached the spot of the chain snatching on the receipt of the information from the complainant and 20.10.2009 Page 4 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC who had sent the ruqqa through Ct. Subhash (PW4) for registration of the FIR was examined as PW3.
Lastly, the prosecution had examined Sh. P.D. Gupta, the then Ld. M.M. as PW8, who in this case had conducted the TIP of the gold chain in question and also had recorded the refusal of the accused Ravinder to participate in his TIP.
4. After the completion of the prosecution evidence, the separate statements of the accused persons were respectively recorded under Section 313 Cr. P.C. wherein all the incriminating circumstances appearing against the respective accused were put to them whereby in response thereto, the accused persons had alleged the defence of "False Implication".
The accused persons led no evidence in their defence as they had stated in their respective statements under Section 313 Cr. P.C. that they does not want to lead any defence evidence, whereafter the matter was fixed for final arguments.
5. I have weighed the rival submissions made on behalf of the State by the Ld. APP and Ld. Defence Counsel in the light of the material appearing on the record.
20.10.2009 Page 5 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC
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. 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.
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 story whereby such reasonable doubt(s) entitles the accused to acquittal.
7. In the light of the above discussed legal position, I shall now step forward to divulge my opinion on the respective fate of the accused persons.
Since both the accused persons have charged separately for different offences, accordingly I shall be taking up the case set up against 20.10.2009 Page 6 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC accused Ravinder first in time, whereafter I shall be disclosing my opinion on the fate of accused Tek Chand.
CHARGES AGAINST ACCUSED RAVINDER
8. It has been asserted by the prosecution that accused Ravinder on 10.05.2001 at around 8.45 a.m. had snatched the golden chain being worn by the complainant against her consent by use of criminal force. In lieu of said allegations, the accused Ravinder was charged under Section 356 & 379 IPC.
In order to prove the offence under Section 356 IPC against accused Ravinder, it was incumbent for the prosecution to prove the following beyond reasonable doubt:
a) That accused Ravinder had used criminal force against the complainant at 8.45 a.m. on 10.05.2001; and
b) That the accused Ravinder had used the aforesaid criminal force against the complainant in order to commit theft of the golden chain being worn by the complainant on the said date & time.
Next in order to prove the offence under Section 379 IPC 20.10.2009 Page 7 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC against accused Ravinder, the prosecution was required to prove the following beyond reasonable doubt:
a) That accused Ravinder on 10.05.2001 at 8.45 a.m. had removed/snatched the golden chain being worn by the complainant against her Will ; and
b) That the aforesaid removal/snatching of the golden chain was committed by accused Ravinder with a dishonest intention.
9. In order to prove the aforesaid ingredients for the offences under Section 356 & 379 IPC against accused Ravinder, the prosecution had examined the complainant as PW1.
PW1 in her evidence had identified accused Ravinder as the culprit, who had snatched her gold chain on 10.05.2001. PW1 had also identified the chain Ex. P1 recovered in this case to be her own and as the one which was snatched by accused Ravinder on 10.05.2001.
PW1 had also deposed that after the incident of snatching of her gold chain on 10.05.2001, she had visited the police station only once and at the time of said visit to P.S., accused Ravinder was not present at the said P.S. PW1 also had deposed that inclusive of the date of recording 20.10.2009 Page 8 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC of her evidence before the court, she had visited the court thrice and during one of her appearances before the court, she saw accused Ravinder for the first time whereupon she identified him to be the culprit chain snatcher on her own. PW1 had categorically denied the suggestion given by the defence that the photographs of accused Ravinder were ever shown to her by the police.
The IO of the case i.e. S.I. Yogender Nath was examined as PW5, who had deposed that on 30.07.2001, when PW1 accompanied him to the court for the superdari of her gold chain, accused Ravinder was also present in the court whereupon PW1 on her own identified accused Ravinder as the one who had snatched her gold chain on 10.05.2001.
10. The aforesaid corroborating testimonial statements of PW1 and PW5 clearly establishes the identity of accused Ravinder, as the one who had snatched the gold chain of PW1 on 10.05.2001 when nothing contradictory was being elicited by the defence out of the testimonies of the said witnesses so as to disbelieve them.
The above testimonial statement of PW5 would be taken on its face value as the said witness was not even crossexamined on behalf of the defence, which unrebutted testimony of PW5 adds strength to the 20.10.2009 Page 9 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC voice of PW1 who had identified accused Ravinder as the chain snatcher in the court by deposing that she saw the accused Ravinder for the first time only in the court where she on her own identified him to the chain snatcher of her chain.
The inevitable conclusion of the above discussion would be that it has been clearly proved on record by the prosecution that accused Ravinder was seen by PW1 for the first time in the court on 30.07.2001 after the chain snatching dated 10.05.2001 & that she had pointed towards accused Ravinder as the chain snatcher on her own with any guidance by the I.O. or anyone else whereupon she herself told to PW5, who was accompanying PW1 to the court on the said date, that accused Ravinder had snatched her gold chain Ex. P1 on 10.05.2001.
Except for a bald suggestion to PW1 that the photographs of accused Ravinder were shown to her by the police, no contradictory circumstances have been brought forth or pointed by the defence in the evidence of PW1 or PW5, so as to disbelieve their testimonies on the aspect of the identification of accused Ravinder by PW1. The defence had not given even a single suggestion to the I.O. PW5 on the aspect that any photographs of accused Ravinder were ever shown by him or any other police official involved in the investigation of the present case to PW1 during the intervening time between the date of snatching of the 20.10.2009 Page 10 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC gold chain on 10.05.2001 & the date when PW1 saw accused Ravinder in the court for the first time on 30.07.2001.
The aforesaid circumstances showing that accused Ravinder was the person who had snatched the gold chain of PW1 on 10.05.2001 receives further strength from the refusal of accused Ravinder to participate in his test identification Parade, which accused on 17.07.2001 had stated before Sh. PD Gupta, the then Ld. M.M., Delhi that he does not want to participate in TIP as police had taken his photographs which might have been shown to the witnesses. The said TIP proceedings were duly proved by PW8 Sh. PD Gupta, the then Ld. M.M./Delhi as Ex. PX.
The aforesaid refusal of accused Ravinder to participate in his TIP once is appreciated in the light of the aforesaid testimonies of PW1 & PW5, then it inspires me to draw an adverse inference against accused Ravinder for his said refusal.
Thus, the cumulative effect of the aforesaid adverse inference drawn against accused Ravinder and the strong testimonies of PW1 & PW5 is the clear establishment of the identity of accused Ravinder as the one who had snatched the gold chain of PW1 on 10.05.2001, more so, when the defence has failed to point or produce anything on record so as to disbelieve PW1 (whose testimony has a high probative value attached to it since she being the victim herein) or PW5.
20.10.2009 Page 11 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC PW1 had also deposed that the accused Ravinder on 10.05.2001 first came near to her & then snatched her gold chain whereafter he ran away with it. Now it is matter of common sense that the said snatching of gold chain would not have been possible for accused Ravinder without use of criminal force by him whereby he definitely would have caused motion or change of motion not only to the body of PW1 but of his body as well so as commit the said theft.
The above circumstances shows that the act of snatching of gold chain by the accused Ravinder was deliberate & intentional whereby it has to be presumed that he had the requisite knowledge of the fact that by use of criminal force against PW1, he might cause either injury or fear or annoyance to PW1.
Thus the aforesaid discussion clearly shows that the prosecution has succeeded in proving that accused Ravinder after using criminal force against PW1 on 10.05.2001 for snatching her gold chain, had committed the theft of gold chain belonging to PW1.
11. The contradiction between the testimony of PW2 Ct. Charan Pal who had stated that both the accused were arrested by P.S. Darya Ganj in another case wherein the accused persons gave their respective disclosures Ex. PW2/A and PW2/B admitting their involvement in the 20.10.2009 Page 12 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC present case and the testimony of PW6 that the accused persons were rather arrested in FIR No. 181/01 of P.S. Jama Masjid wherein the above disclosures of both the accused were recorded by him at P.S. Jama Masjid, is totally inconsequential and immaterial as regards accused Ravinder in view of the strong and unrebutted testimonies of PW1 and PW5 clearly establishing the identity of accused Ravinder as the one who had snatched the gold chain of PW1 on 10.05.2001.
The aforesaid contradiction may be relevant in respect of the case of the prosecution asserted against accused Tek Chand regarding the recovery of gold chain from his residence, but for the reasons assigned herein above the said contradiction is inconsequential in respect of the case asserted by the prosecution against accused Ravinder.
12. In view of the above, I am satisfied that the prosecution has succeeded in proving that accused Ravinder on 10.05.2001 not only had used criminal force against PW1 in order to snatch her gold chain but the said accused on the said date also had snatched the gold chain Ex. P1 of PW1 and ran away with it.
Accordingly I hold accused Ravinder guilty for committing the offences U/s 356 IPC and 379 IPC.
20.10.2009 Page 13 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC CHARGES AGAINST ACCUSED TEK CHAND
13. The case set up by the prosecution against accused Tek Chand is that he had received & retained the gold chain Ex. P1 with the knowledge of the same being stolen by accused Ravinder.
To prove allegations U/s 411 IPC against accused Tek Chand, the prosecution was required to prove the following ingredients :
a) That accused Tek Chand had dishonestly retained or received the gold chain stolen in this case by accused Ravinder on 10.05.2001 ; and
b) That accused Tek Chand had retained or received the said gold chain despite knowing or having reason to believe that the same was a stolen property.
Now, in order to prove the above ingredients against accused Tek Chand, the prosecution had relied upon the disclosure statement of accused Tek Chand Ex. PW2/B recorded by the police and the circumstance of subsequent recovery of gold chain Ex. P1 at the instance of accused Tek Chand from his residence.
Thus I shall evaluate the relevant evidence appearing on record against accused Tek Chand, so as to form an opinion as to 20.10.2009 Page 14 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC whether the prosecution has succeeded in proving the offence U/s. 411 IPC against him or not.
14. The case of the prosecution against accused Tek Chand for committing the offence U/s. 411 IPC rests squarely on the testimonies of PW2 Ct. Charan Pal (1st recovery witness), PW6 S.I. Rameshwar Prasad (2nd recovery witness) & PW5 S.I. Yogender Nath, which thus are required to be discussed.
PW6 had deposed that both the accused were arrested by the police officials of P.S. Jama Masjid in another FIR No. 181/01 wherein the police recorded the respective disclosure statements of both the accused persons, namely, Ravinder & Tek Chand as Ex. PW2/A & Ex. PW2/B. PW6 also had testified that accused Tek Chand in pursuance of his disclosure statement Ex. PW2/B got effected the recovery of gold chain Ex. P1 from his residence, which was earlier stolen by accused Ravinder on 10.05.2001.
Similarly, PW5 also had deposed that the accused persons were arrested in the above FIR no. 181/01 wherein they made the above disclosures as above whereupon PW6 effected the recovery of gold chain Ex. P1 at the instance of accused Tek Chand.
However the aforesaid recovery aspect propounded by PW6 20.10.2009 Page 15 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC & PW5 in their testimonies received a serious jolt from the testimony of the remaining recovery witness i.e. PW2 Ct. Charan Pal, who had contradicted his fellow recovery witness PW6 on the material aspects of the circumstances leading up to the recovery of gold chain Ex. P1 by PW6 from the residence of accused Tek Chand.
15. PW2 Ct. Charan Pal in his evidence had categorically deposed that on 18.07.2001 when he was on investigating duty with PW6, then PW6 removed both the accused from lock up of P.S. Darya Ganj in which police station they were lodged and recorded the disclosure statements Ex. PW2/A & Ex. PW2/B where after accused Tek Chand took PW6 & PW2 to his residence and got effected the recovery of gold chain Ex. P1 from his residence.
PW2 had maintained even in his crossexamination by deposing that the accused persons were in the lock up of P.S. Darya Ganj when their disclosures as above were recorded by PW6. Now, this part of the testimony of PW2 contradicts PW6 who earlier had deposed that the accused persons were arrested in FIR No. 181/01 of P.S. Jama Masjid. This contradiction amongst PW2 & PW6 on the name of the P.S. where the accused persons were lodged at the time of recording of their disclosures renders a serious dent to the story of prosecution against 20.10.2009 Page 16 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC accused Tek Chand qua the recovery aspect.
There are numerous other circumstances as well which have created reasonable doubts in the storyline of the recovery of the gold chain Ex. P1 at the instance of accused Tek Chand from his residence.
16. The testimony of PW6 suggests that all the writing work relating to recovery of gold chain Ex. P1 & the sealing of gold chain Ex. P1 after its recovery was done at the residence of accused Tek Chand, however, the testimony of the remaining recovery witness PW2 suggests otherwise who in his crossexamination had admitted that the entire writing work pertaining to the recovery of gold chain Ex. P1 and sealing of the case property Ex. P1 was done at the P.S. The aforesaid contradiction deepens the crisis for the prosecution on the aspect of genuineness, legality & reliability of recovery of the gold chain Ex. P1 allegedly effected by the police at the instance of accused Tek Chand.
17. As per testimony of PW2, public persons were present at the spot of recovery of the gold chain Ex. P1.
PW6 earlier had deposed that none of the public persons were ready to accompany him for witnessing the recovery of the gold chain 20.10.2009 Page 17 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC Ex. P1. PW6 also had deposed that none of the public witnesses available at the spot of recovery were called by him to join the police proceedings relating to the sealing of the case property Ex. P1.
Now the above testimonies of PW2 & PW6 shows that no serious attempt was made by the concerned police officials i.e. PW2 & PW6 to get independent public persons to join the police proceedings of the recovery or sealing of the gold chain Ex. P1 despite availability of such public witnesses.
In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party in the manner stated as above by PW6, then the concerned police officials could have served the said public witnesses with a notice in writing to join the police proceedings at the relevant time of conducting the police raid for effecting recovery or at the time of sealing of the recovered gold chain Ex. P1, as there was no possibility of accused Tek Chand escaping or his crime going undetected when at that time accused Tek Chand was already under custody.
In my opinion, in these facts and circumstances of the case, the concerned police officials must have asked the public persons available at the spot of recovery of the gold chain Ex. P1 by serving them with a notice in writing and further in case of their refusal to join police 20.10.2009 Page 18 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC proceedings, the concerned police officers should have taken action against them under Section 187 IPC. However, the facts and circumstances of the case suggest that no sincere efforts was made by the concerned police officials to join independent public witnesses in the police proceedings of recovery of the gold chain Ex. P1 & of the sealing of the said case property despite admitted availability of the independent public witnesses.
In this regard reliance can be placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), wherein 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 evident 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 the case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court had held 20.10.2009 Page 19 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC 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 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".
In the case law reported as "Sadhu Singh Vs. State of Punjab"
20.10.2009 Page 20 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC 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, Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. 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 stereotype 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".
18. The testimonies of the recovery witnesses i.e PW2 & 6 have brought nothing on record to even remotely suggest that before effecting the recovery of the gold chain Ex. P1 from the house of accused Tek Chand, the said police officials had offered their own personal search, either to accused Tek Chand or to any other member of the public/family member's of accused Tek Chand, who admittedly were present at the spot of the recovery.
20.10.2009 Page 21 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa" decided on 24/11/1984 wherein the following was held : "10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cr. L.J.
279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated". Being guided by above said case law, the possibility of false planting of the case property by the police against accused Tek Chand can not be ruled out beyond reasonable doubt, which makes the story of prosecution qua recovery of the gold chain Ex. P1 at the instance of accused Tek Chand from his residence highly doubtful.
19. As per PW6 S.I. Rameshwar Prasad, the seal belonging to him 20.10.2009 Page 22 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC after being used on the pulanda containing the gold chain Ex P1 allegedly recovered from the house of the accused Tek Chand was given to none else but to his accompanying police partner PW2 Ct. Charan Pal, the one who is a material prosecution witness being member of the recovery party & one of the witnesses to the alleged recovery of the gold chain Ex. P1 from the house of the accused Tek Chand. Such material witness of a case is always interested in the success of the case of the prosecution and thus keeping in view this fact, the chances of fabrication & false plantation of the case property Ex. P1 cannot be ruled out beyond reasonable doubts, particularly, when it was admitted by PW 2 that the entire sealing work qua the gold chain Ex. P1 after its recovery was done by PW6 at the police station.
Further it is equally pertinent to note that the testimonies of all the prosecution's witnesses including that of PW2, PW5 & PW6 are silent as to when & to whom the said seal was given back by the PW2 or as to what happened to it after the FIR was lodged & the requirement of the said seal was over as far as the instant case is concerned.
20. The aforesaid circumstances clearly shows the loopholes which have brought the prosecution's case alleged against accused Tek Chand for committing the offence Under Section 411 IPC under serious doubt 20.10.2009 Page 23 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC whereby the entire recovery exercise of the police relating to the recovery of the gold chain Ex. P1 from the residence of accused Tek Chand at his own instance seems to be motivated, falsely planted and fabricated.
Except for the mere disclosure of accused Ravinder Ex. PW 2/A implicating accused Tek Chand in this case and the disclosure statement of accused Tek Chand Ex. PW2/B confessing his involvement in this crime, there is nothing substantial produced on record by the prosecution so as to connect accused Tek Chand either with the recovery of the gold chain Ex. P1 or with the offence U/s. 411 IPC in any other possible manner.
Once I have opined that the recovery of the gold chain Ex. P1 alleged against accused Tek Chand seems to be improbable, motivated and falsely planted, then none of the said disclosure statements of any of the accused can be used against accused Tek Chand, particularly when it had been admitted by PW2 & PW6 in their respective testimonies that the disclosure statements of both the accused were recorded in the police station whilst they were in police custody whereby such disclosure statements are hit by Section 25 & 26 of Indian Evidence Act which bar further renders such statements useless even for the purpose of Section 27 Indian Evidence Act after the prosecution has failed in proving the 20.10.2009 Page 24 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC connection between the recovery of the gold chain Ex. P1 & accused Tek Chand beyond reasonable doubt.
21. For the reasons assigned herein above, I am of the view that the prosecution has failed in proving the offence U/s 411 IPC against accused Tek Chand beyond reasonable doubt whereby accused Tek Chand is entitled to the benefit of doubt.
Conclusion
22. For the reasons assigned herein above, the fate of the accused persons stands decided in the below said manner : A) Accused Tek Chand is given the benefit of doubt for the above reasons & thus is acquitted of the offence charged against him U/s 411 IPC.
The B/B & S/B of accused Tek Chand are discharged. Original documents of the Surety of accused Tek Chand, if any on record, be released to such surety against receipt after cancellation of the endorsements thereupon.
20.10.2009 Page 25 of 26 of Pages FIR No. 145/01 P.S.: Jama Masjid U/s.: 356/379/411 IPC B) Accused Ravinder is held guilty for committing the offences U/s 356 & 379 IPC for the above quoted reasons & is accordingly convicted U/s 356 & 379 IPC.
Copy of this judgment be given free of cost to both the accused. Announced in the open court on 20.10.2009.
(SIDHARTH MATHUR) M.M. (CENTRAL - 02) DELHI 20.10.2009 Page 26 of 26 of Pages