Delhi District Court
State vs . Mohd Shahid on 11 May, 2020
IN THE COURT OF MS TANYA BAMNIYAL,
METROPOLITAN MAGISTRATE02 (SOUTH DISTRICT), SAKET
COURTS COMPLEX, NEW DELHI
STATE Vs. MOHD SHAHID
FIR No. 473/17
U/s :392/411/34 IPC
P.S. : Malviya Nagar
Date of Institution : 17.03.2018
Date on which case reserved for Judgment : 19.03.2020
Date of judgment : 11.05.2020
JUDGMENT
1.eFIR No. of the case : 473/17
2.Date of the Commission : 19.12.2017
of the offence
3.Name of the accused : 1. Deepak,
: S/o Late Devo,
: R/o US8/297B, Begampur,
: Malviya Nagar, New Delhi.
: 2. Mohd Shahid,
: S/o Mohd Ali,
: R/o H. No. 267B/2,
: Hauz Rani, New Delhi.
: 3. Saif Siddiqui,
: S/o Sh. Zaver Siddiqui,
: R/o Village Khauna Post Khauna,
: PS Basopatti, Distt. Madhubani, Bihar.
4.Name of the complainant : Sh. Kamlendra Kumar Rawat,
: S/o Sh. Nisha Kant Rawat,
: R/o D10, STC Colony,
FIR No. 473/17 State Vs. Mohd Shahid
: Malviya Nagar, New Delhi.
5.Offence complained of : U/s 392/411/34 IPC
6.Plea of accused : Pleaded not guilty.
7.Final order : All the accused persons are acquitted
: for the offences U/s 392/34 IPC and
: accused Shahid and Deepak are also
: acquitted for offences U/s 411 IPC.
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 19.12.2017 at about 6.30 pm at Vijay Mandal Park, Begum Pur, Malviya Nagar, within the jurisdiction of PS Malviya Nagar all accused persons namely Deepak, Mohd Shahid and Saif Siddiqui in furtherance of their common intention robbed the complainant Sh. Kamlender Kumar Rawat of his mobile phone make MI Note 4 Metallic Silver Colour and Rs. 100/ from the pocket of the Pyjama of the complainant by snatching the same from him and by pushing him and thereby committed the offence punishable U/s 392/34 IPC. It is further alleged that on aforesaid date at Bakshi Park Begum Pur, near MCD School, within the jurisdiction of PS Malviya Nagar accused Shahid was found in possession of the stolen mobile phone make MI Note 4 of the complainant and accused Deepak was found in possession of the stolen amount i.e. Rs. 100/ belonging to the complainant which was retained by them in furtherance of their common intention, knowing or having reasons to believe the same to be stolen property and thereby committed the offence punishable U/s 411/34 IPC.
FIR No. 473/17 State Vs. Mohd Shahid
2. FIR No. 473/17 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 392/411/34 IPC was filed before the court on 17.03.2018.
4. On the basis of prima facie material available on the record charge for the offence punishable under section 392/34 IPC was framed against all the accused persons and charge U/s 411 IPC was framed qua accused Shahid and Deepak, to which they pleaded not guilty and claimed trial on 10.07.2018.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined eight witnesses.
(a) PW1 was the complainant namely Sh. Kamlendra Kumar Rawat. He deposed about the incident and exhibited his statement/complaint as Ex. PW1/A, indemnity bond as Ex. PW1/B, mobile phone make MI Note as Ex. P1 and two photographs of mobile phone make MI Note as Ex. P2 and Ex. P3, seizure memo as Ex. PW1/C, seizure memo of Rs. 100/ as Ex.
PW1/D, invoice of mobile phone as Ex. PW1/E, site plan as Ex. PW1/F, recovery site plan as Ex. PW1/G, arrest memos of accused persons as Ex. PW1/H to Ex. PW1/J.
(b) PW2 was MHC(M) namely HC Sushil Kumar who exhibited the relevant entry of Register no. 19 of the year 2017 pertaining to deposition of case properties in the malkhana i.e. mobile phone make MI Note 4, Rs. 100/ one purse, Rs. 350/ and one Aadhaar card in the malkhana of PS Malviya Nagar as Ex. PW2/A FIR No. 473/17 State Vs. Mohd Shahid
(c) PW3 Ct Sanjeev Kumar was on patrolling in the area of Begampur on the date of incident.
(d) PW4 Ct Amit Kumar and PW5 ASI Ramesh Chand were on patrolling duty at Begampur area.
(e) PW6 was Ct. Bajrang who alongwith Ct Sanjeev were on patrolling duty in the area of Begampur.
(f) PW7 HC Sonu Nain was on patrolling duty on the day of incident alongwith ASI Bharat Vinod in the area of Gupta Colony, Khirki Extension.
(g) PW8 was the Investigating officer (IO) of the case namely ASI Bharat Vinod. He exhibited the rukka as Ex. PW8/A
(h) Accused persons admitted factum of registration of FIR No. 0473/17 and exhibited the same as Ex. X1 on 12.03.2019.
6. Prosecution evidence was closed on 06.04.2019. However an application U/s 311 Cr.PC. was moved on behalf of accused Shahid which was allowed on 02.08.2019 and IO/PW8 ASI Bharat Vinod was recalled for cross examination. After conclusion of prosecution evidence, the Statements of accused persons Mohd Shahid and Deepak under section 313 r/w section 281 Cr.P.C were recorded on 11.10.2019. Accused persons did not seek to lead defence evidence. Statement of accused Saif Siddiqui under section 313 r/w 281 Cr.P.C. was recorded on 02.11.2019 and he also did not seek to lead DE.
FINAL ARGUMENTS:
7. It was argued by ld. APP for the State that there is no motive of the complainant to falsely implicate the accused persons in the present case. It FIR No. 473/17 State Vs. Mohd Shahid is further argued that recovery has already been effected from them and thus they be convicted for the offences charged.
8. On the other hand it was argued by ld. counsel for the accused Saif Siddiqui that neither the complainant could identify the accused nor recovery has been effected from him. It is further argued by ld. counsel for accused persons Deepak and Shahid that they are falsely implicated in the present case and case property has been planted upon them to falsely implicate them in the present case. Thus it prayed that all accused persons be acquitted for charges levelled against them.
REASONS FOR DECISION:
9. To prove its case prosecution examined eight witnesses. PW1 being the complainant is the star witness in the present case. It was deposed by PW1 that on 19.12.2017 at about 06:30 pm while he was walking in Sarvodaya Park situated at MMTC colony, one assailant came from behind and caught hold of his neck, snatched his mobile phone from his hand. Thereafter the assailant jumped the wall of the park and ran away. PW1 did not identify the accused persons in his examination in chief and even during cross examination by the Ld. APP for the State when leading questions were put to the witnesses at that time also he failed to identify the accused persons due to lapse of time. It is also the version of the prosecution that the complainant accompanied the police officials to Bakshi park, Begampur where apparently all accused persons were apprehended by the police. It is also the version of the prosecution that on conducting the personal search of the accused persons by the IO accused Mohd Shahid was found with one mobile phone and Rs. 100/ was found from the possession of the accused FIR No. 473/17 State Vs. Mohd Shahid Deepak and during the apprehension accused Shahid tried to flee from the spot however he was apprehended by the public persons.
10. The complainant categorically stated during his cross examination by the Ld. APP for the State that he did not accompany the police officials to Bakshi Park situated near the MCD school and he was present at the police booth. He also deposed that neither the accused persons were shown by the police officials to him nor did he tell anything about their identity to police officials. He also stated that he remained at PS for about two and half hours and accused persons were also present in the other room at PS. Thus it is clear from the above the complainant completely negated the version of the prosecution and did not accompany the police officials to Bakshi Park, where apparently the accused persons were apprehended and alleged recoveries were effected from them. It is pertinent to mention that no recovery has been effected from the accused Saif Siddiqui neither the complainant could identify the accused Saif or any other accused persons due to lapse of time. Thus there is nothing on record to connect any of the accused persons with the commission of the offence U/s 392 IPC. However the case property i.e. mobile phone make MI note 4 Metallic silver color was recovered from accused Shahid and amount of Rs. 100/ was recovered from accused Deepak.
11. To connect the accused persons with the recoveries of the case property, it is imperative to mention the ingredients of section 411 IPC.
The ingredients of Section 411 IPC. It runs as follows: "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with FIR No. 473/17 State Vs. Mohd Shahid imprisonment of either description for a term which may extend to three years, or with fine, or with both".
12. A mere reading of the above section shows that the person concerned should in the first place dishonestly receive or retain the stolen property. This ingredient envisages that before the stolen property goes into the hands of the accused appellant it must be shown that the said property as a stolen property had been in possession of somebody else before it reached the hands of the appellant and that he received it or retained it dishonestly. The next ingredient is that he should receive or retain the said stolen property knowing or having reason to believe the same to be stolen property. It follows that the burden lies on the prosecution to lead evidence and to prove that the accused appellant had knowledge or at least reason to believe that the said property was stolen.
13. As already observed above, the complainant already turned hostile on the aspect of recovery being effected in his presence and did not favour the prosecution. That raises the question as to whether the other prosecution witnesses who are formal/police officials should be believed on this point or not. Normally no basis is attached to the evidence of police personnel. They are as good citizens as anyone else. From that standard their evidence should not be discarded merely because they happen to be police constables. But the Court cannot lose sight of the other glaring circumstances which had shorn their statements of credibility. It is clear that PW1/complainant was not present at site of recovery of case property; he further reiterated that he was present at the police booth. The mobile phone was shown to him by the police officials and he identified the same. Neither FIR No. 473/17 State Vs. Mohd Shahid the accused persons were shown by the police officials to him nor did he tell anything about their identity to the police officials. Complainant also admitted in his cross examination that the accused persons present in the Court were not shown to him in the police station Malviya Nagar and he was made to sign on blank papers. These facts and circumstances by itself are sufficient to introduce an element of doubt in the whole affair.
14. It is the version of the prosecution that at the time of apprehension of the accused persons and recovery of the case property from Shahid and Deepak, the complainant as well as the public persons who were present at the place of recovery and apprehension however neither the complainant proved the version of the prosecution nor the prosecution could examine any independent witness to fortify the same. Thus it can be concluded that, only police officials are witnesses of the recovery. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory FIR No. 473/17 State Vs. Mohd Shahid explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under :
"Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
15. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure FIR No. 473/17 State Vs. Mohd Shahid proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
16. It is not the prosecution's case that no public persons were present at the spot. The IO very casually stated that although there were public persons present at the spot but no one came forward to join the investigation. Even it is believed for the sake of the arguments that no public witnesses came forward to join the investigation at least the IO could have noted their names, addresses and phone numbers which could have corroborated the version of the IO. It appears that IO did not make any effort at all in this regard. The police officials have put forward a stereo typed version which does not inspire confidence. It casts doubt on the sincere efforts made by the investigating officer to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused. The fact that no public witness has been joined in the investigation creates serious doubts over the recovery. The benefit of which ought to be given to the accused.
17. Furthermore, to prove the receipt or retention of the stolen property U/s 411 IPC, it should be established that the property alleged to be stolen, was recovered from the possession of the accused. If the story of recovery fails, the case of receipt of retention would automatically collapse FIR No. 473/17 State Vs. Mohd Shahid 10
18. Though the recoveries shown to have been effected from the accused Shahid and Deepak however the main witnesses i.e. the complainant did not corroborate the fact that the recovery had been effected from the accused persons. Thus considering that PW1 did not support the case of the prosecution on the aspect of identity of accused persons as well as recovery of the case property, the prosecution failed to prove its case beyond reasonable doubt and no reliance on the alleged recovery of mobile phone and Rs. 100/ can be placed. Thus all the accused persons are acquitted for the offences U/s 392/34 IPC and accused Shahid and Deepak are also acquitted for offences U/s 411 IPC.
19. File be consigned to Record Room after necessary compliance. Digitally signed by TANYA TANYA BAMNIYAL BAMNIYAL Date:
2020.05.11 Announced in the Court 17:29:10 +0530 on 11.05.2020 (TANYA BAMNIYAL) MM02(SD)/11.05.2020 Certified that this judgment contains 11 pages and each page bears my signatures. TANYA Digitally signed by TANYA BAMNIYAL BAMNIYAL Date: 2020.05.11 17:29:17 +0530 (TANYA BAMNIYAL) MM02(SD)/11.05.2020 FIR No. 473/17 State Vs. Mohd Shahid 11