Delhi District Court
State vs Chaman Lal Chauhan Etc on 18 December, 2023
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI. FIR No.295/2014 PS. OIA U/s. 392/411/34 IPC STATE VS CHAMAN LAL CHAUHAN & ORS. JUDGMENT
A. SERIAL. NO. OF : 363/2/14
B. DATE OF INSTITUTION : 08.09.2014
C. NAME OF THE : Ms. Simpi
COMPLAINANT W/o Rajesh Ranjan Singh
D. NAME OF THE : I. Chaman Lal Chauhan
ACCUSED S/o Madan Lal Chauhan
II. Vishal Gurang
S/o Rajender Gurang
E. OFFENCE COMPLAINED
OF : U/s. 392/34,411 IPC
F. PLEA OF ACCUSED : Pleaded not guilty.
G. FINAL ORDER : Convicted u/s 356/34 IPC
H. DATE OF COMMISSION
OF OFFENCE : 27.04.2014
I. DATE OF SUCH ORDER : 18.12.2023
BRIEF FACTS
1. Brief facts of the instant case as per the complaint of the complainant upon which the FIR was registered are that on 27.04.2014 when the complainant along with her 02 sons and her husband was going to her home in an e-rikshaw from Kalkaji Mandir, then at that time around 09:10 AM, when the e-rikshaw stopped at the red light of Kalkaji Bus Depot two boys wearing helmets came on a Pulsar black motorcycle from the Govindpuri side and snatched her gold chain. FIR u/s 392/34 IPC was registered. Site plan was prepared and statement of the witnesses were recorded. During investigation on 11.07.2014, information was :2: received vide DD entry 5 PP that the present accused persons namely, Chaman Lal Chauhan and Vishal Gurung have been arrested by the police officials of Special Staff in Kalandra u/s 41.1 CrPC and commission of offence of the instant case has been disclosed by them. Further, the gold chain was also recovered from the accused Vishal. Thereafter the accused persons were formally arrested in the instant case. The TIP of the accused persons were conducted and they were correctly identified by the husband of the complainant.
TIP of case property was also conducted and the complainant correctly identified the case property, after which Section 411 IPC was inserted. Thereafter, the remaining aspects of investigation were completed and present charge-sheet for judicial verdict was filed before this court.
CHARGE
2. After being prima-facie satisfied regarding the commission of offences, Cognizance was taken and after supply of the copy of charge- sheet and annexed documents, separate charge u/s 392/34 IPC was framed against both the accused persons and charge u/s 411 IPC was framed against accused Vishal Gurang, accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Prosecution in support of its case examined the following witnesses:
3.1. Sh. Rajesh Ranjan was examined as PW1, his examination in :3: chief is herein reproduced as under.
"On 27.04.2014, I alongwith my wife and children were returning from Kalkaji Mandir to our house by E-rickshaw. When we reached near C-lal chowk, red light. Due to red light rickshaw was standing on the crossing line. At about 9.10 am, two persons on one pulsar bike came from my wrong side i.e Govind puri side. The age of both persons might be of 22 to 23 years and they were wearing halemate. When they passed from our rickshaw, the pillion rider snatched golden chain from my wife and they started towards kalkaji mandir by service road. I chased them for a distance but they succeed to ran away. I could not note down no. of motorcycle. Thereafter, I called at 100 no. and police came at the spot. Police recorded statement of my wife which is Ex. PW1/A. After some times police called me to identify the accused persons. I alongwith police went to Tihar jail. I participated in TIP where I identified the accused persons from a distance. Both accused present in the court today, correctly identify by the witness. After TIP, lady judge suggested me that the persons I had guessed were the same persons who had committed offence. Copy of TIP proceeding attached as Ex. P1 and P2 bearing my signature at point A. My wife also came to court for TIP of gold chain. I can identified the gold chain of my wife if shown to me. At this stage MHCM produce one sealed pulinda having seal of PT. On permission of court seal is removed and pulinda opened. On plastic jar is taken out in which one peace of broken gold chain is recovered. Same is shown to witness and he correctly identify the same. The said Chain is :4: Ex. P1."
3.2. Ms. Simpi, was examined as PW2, her examination in chief is herein reproduced as under.
"On 27.04.2014, I alongwith my husband and two children was going to my house from Kalkaji Mandir in E-rickshaw. At around 09:10 am, when we reached Kalkaji Bus depot, there was red light signal, so my rickshaw was stopped. In the meantime, two persons on a motorcycle make Pulsur came from Govindpuri side and the pillion rider of the motorcycle snatched my gold chain from my neck and thereafter, they fled away. Both the accused persons are present in the court today, (correctly identified by the witness). I gave my complaint to the police as already Ex.PW1/A bearing my signatures at point A. Police prepared the site plan at my instance. I can identify the case property, if shown to me.
At this stage, MHC (M) has produced a white pullanda duly sealed with the court seal. Seal was broken and one plastic jar is taken out which is found containing a broken piece of gold chain. The said chain has been shown to the witness but witness failed to identify the said gold chain."
At that stage, Ld. APP for the State sought permission from the court to cross examine the witness as she was resiling from her statement.
In the cross-examination of Ld. APP, PW2 stated that it is wrong to suggest that she has forgot the look of her gold chain and that is :5: why she has failed to identify the case property brought by the MHC(M).
3.3. Ct. Sube Singh, was examined as PW3, his examination in chief is herein reproduced as under.
"On 27.04.2014, I was posted as constable at PP-OIA Phase- III PS-OIA. On that day, IO/ASI Karan Singh received DD no.5PP, OIA Phase-III regarding snatching of gold chain. On this, I alongwith the IO went to the spot at red light Kalkaji bus depot, Anandmai Marg and met with complainant Simpy Singh. IO recorded her statement and prepared the rukka and gave it to me and sent me to PS-OIA for registration of FIR. After registration of FIR, I came back at the spot and handed over the original rukka and copy of FIR to IO. We made effort to search the accused but to no avail. IO recorded my statement."
3.4. HC Sanjay Kumar, was examined as PW4, his examination in chief is herein reproduced as under.
"On 27.04.2014, I was posted as constable at PP-OIA Phase- III, PS-OIA and was working as a DD writer from 08:00 am to 08:00 pm. On that day at around 09:57 am, I recorded DD no.5 PP regarding snatching at Nathu Sweets, C-Lal Chowk, near Kalkaji Depot. The copy of the said DD is exhibited as Ex.PW4/A, bearing my signature at point 'A'. Today, I have brought DD register, containing the abovesaid DD in original (OSR). After recording DD number, I handed over the same to ASI Karan Singh.
On 24.07.2014, I alongwith ASI Karan Singh went to Saket :6: Court Complex, where ASI Karan Singh with the permission of court formally arrested the accused VIshal and Chaman Lal in my presence vide arrest memo Ex.PW4/B and Ex.PW4/C both bears my signature at point 'A'. IO interrogated from both the accused persons and recorded their disclosure statement vide Ex.PW4/D and Ex.PW4/E, both bearing my signatures at point A. IO recorded my statement."
3.5. HC Anil Kumar, was examined as PW5, his examination in chief is herein reproduced as under.
"On 10.07.2014 I was posted as HC at Special Staff, South- East District. On that day I alongwith SI Sandeep Godara, HC Vinod, Ct. Shekhar and Ct. Suresh were on patrolling duty on Govt. gypsy bearing no. DL1CM4759 which was being driven by Ct. Suresh. During patrolling at about 4.30 pm when we reached at Govindpuri Metro Station, a secret informer met SI Sandeep Godara and given information that a criminal namely Chaman Lal alongwith his associates involved in robbery and snatching and today he alongwith his associates came near Govt. School No. 2, Kalkaji for the purpose of selling the robbed articles. Thereafter SI Sandeep shared the said information with us. Thereafter SI Sandeep prepared a raiding party including us and secret informer. Thereafter we reached near Udgam School, Kalkaji which was situated oppst. Govt. School No. 2. SI Sandeep requested some public persons to join the raiding party, however none of them agreed. At about 5.10 pm two persons came from the side of 7/5 picket, Kalkaji wearing helmets on motorcycle bearing no. DL3SBS8381. Said boys parked their motorcycle :7: near the school and started talking to one of the person already standing there. Secret informer pointed out towards the said person and we apprehended the said two persons. The rider of bike informed his name as Vishal while the pillion rider informed his name as Chaman. The person to whom Vishal and Chaman were talking to flee away from the spot. On the personal search of accused Chaman Lal one gold chain and one part of gold chain was recovered from the pocket of his trouser. He informed that he had got one of the said chain by snatching from one female at Aravali Apt. and other by snatching from a female at GK. On personal search of accused Vishal Gurung, a part of gold chain was recovered from the right pocket of his trousers. It is informed by accused Vishal that about two and a half month back he alongwith accused Chaman Lal had snatched the same from a lady from E-Rickshaw near Kalkaji Depot, Red Light. Upon the same, IO verified the said information from PS-OIA and he was informed that an FIR No. 295 is already registered. The items so recovered from the accused persons were sealed in different pullandas with the seal of 'GS'. The case property of the present case was given a mark-C and same were seized vide seizure memo Ex. PW5/A and PW5/B bearing my signatures at point-A. Thereafter IO seized the abovesaid motorcycle in my presence vide Ex. PW5/C bearing my signatures at point-A. Thereafter accused persons were arrested and their personal search was conducted vide memos Ex. PW5/D, PW5/E, PW5/F and PW5G bearing my signatures at point-A. Disclosure statement of accused persons were also recorded vide Ex. PW5/H and PW5/I bearing my :8: signatures at point-A. IO of present case recorded my statement on 14.07.2014. Both accused persons are present in the court today (correctly identified by the witness)."
At that stage, MHCM produced a white pullanda duly sealed with the Court Seal. Seal was broken and plastic jar was taken out which contained a broken piece of gold chain. The same was shown to the witness and witness correctly identified the same. The same was now Ex. P1.
3.6. SI Sandeep Godara, was examined as PW6, his examination in chief is herein reproduced as under.
"On 10.07.2014 I was posted as SI at Special Staff, South- East District. On that day I alongwith HC Anil, HC Vinod, Ct. Shekhar and Ct. Suresh were on patrolling duty on Govt. gypsy bearing no. DL1CM4759 which was being driven by Ct. Suresh. During patrolling at about 4.30 pm when we reached at Govindpuri Metro Station, a secret informer met me and given information that a criminal namely Chaman Lal alongwith his associates involved in robbery and snatching and today he alongwith his associates came near Govt. School No. 2, Kalkaji for the purpose of selling the robbed articles. Thereafter I shared the said information with Insp. Rajesh Kumar, Special staff, who directed me to take appropriate action. Thereafter I prepared a raiding party including abovesaid staff and secret informer. Thereafter we reached near Udgam School, Kalkaji which was situated oppst. Govt. School No. 2. I :9: requested some public persons to join the raiding party, however none of them agreed. At about 5.10 pm two persons came from the side of 7/5 picket, Kalkaji wearing helmets on motorcycle bearing no. DL3SBS8381. Said boys parked their motorcycle near the school and started talking to one of the person already standing there. Secret informer pointed out towards the said person and we apprehended the said two persons. The rider of bike informed his name as Vishal while the pillion rider informed his name as Chaman. The person to whom Vishal and Chaman were talking to flee away from the spot. On the personal search of accused Chaman Lal one gold chain and one part of gold chain was recovered from the pocket of his trouser. He informed that he had got one of the said chain by snatching from one female at Aravali Apt. and other by snatching from a female at GK. On personal search of accused Vishal Gurung, a part of gold chain was recovered from the right pocket of his trousers. It is informed by accused Vishal that about two and a half month back he alongwith accused Chaman Lal had snatched the same from a lady from E-Rickshaw near Kalkaji Depot, Red Light. Upon the same, I verified the said information from PS-OIA and I was informed that an FIR No. 295 is already registered. The items so recovered from the accused persons were sealed in different pullandas with the seal of 'GS'. The case property of the present case was given a mark-C and same were seized vide seizure memo already Ex. PW5/A and PW5/B bearing my signatures at point-B. Thereafter I seized the abovesaid motorcycle vide memo already Ex. PW5/C bearing my signatures at point-B. :10: Thereafter accused persons were arrested and their personal search was conducted vide memos already Ex. PW5/D, PW5/E, PW5/F and PW5G bearing my signatures at point-B. Disclosure statement of accused persons were also recorded vide memo already Ex. PW5/H and PW5/I bearing my signatures at point-B. Thereafter I prepared site plan Ex. PW6/A bearing my signatures at point-A. Thereafter I deposited the case property at PS-Malkhana, Kalkaji. On 11.07.2014 accused persons were produced before the Court in muffled face. I prepared kalandra and submitted before the Court. The copy of same is Ex. PW6/B bearing my signatures at point-A. On 14.07.2014 IO of present case recorded my statement u/s 161 CrPC. Both accused persons are present in the court today (correctly identified by the witness)."
At that stage, MHCM produced a white pullanda and seal of the same was already broken today in the deposition of PW-5. Jar was taken out which containing a broken piece of gold chain. The same was shown to the witness and witness correctly identified the same. The same was already Ex. P1.
3.7. HC Vinod Kumar, was examined as PW7, his examination in chief is herein reproduced as under.
"On 10.07.2014, I was posted in Special Staff, South East District. At about 03:30pm we left the office along with SI Sandeep Godhara, HC Anil, Ct Shekhar, Ct. Suresh DVR in Govt Vehicle DL1CM 4759 for petrolling. At around 04:30pm we reached near Metro Station, :11: Govindpuri. A secret informer met with SI Sandeep Godhara. He informed that about 05:30pm a snatcher namely Chaman Lal will be arrived at Govt School, No 2, Kalkaji. The said information shared with the Inspector Rajesh Kumar, Special Staff. SI Sandeep Godhara asked some public persons to join the investigation however, no one agree to join the investigation and they went from the spot without disclosing their name and addresses. At 05:00pm we reached at Govt School, No. 2, Kalkaji in Govt vehicle (Gypsy). The Gypsy driver Ct. Suresh asked to hide the vehicle towards to K Block. At about 05:30pm, two motorcyclist waring helmet on FZ Yamha having blue colour reached at the school gate. They parked the bike and started talking with a person. The secret informer pointed towards accused Chaman Lal. The secret informer left the place after this. SI Sandeep Godhara apprehended the two persons with the help of us and the third person ran away. After interrogation, SI Sandeep Godhara found the driver of motorcyclist name is Vishal Goran @ Sumit and the second person was Chaman Lal. In personal search of Chaman Lal SI Sandeep found two gold chain (one chain was broken). The weight of the chain is 10-12gm approx and the weight of broken chain was 03 gm approx. One chain connected with a case registered at PS Kalkaji and the broken chain was connected with a case registered at PS - GK. Then, SI Sandeep Godhara conducted the personal search of Vishal and found a broken chain in his right pocket of paint. They disclosed that the said gold chains were snatched at DTC Kalkaji Depot, near Red Light from a lady, who was travelling through e-Rickshaw.:12:
After inquiry it was found that the present case was registered in this respect. Further, Vishal disclosed that the remaining part of said chain is available with the other persons namely Ravi who ran away from the spot. After that, SI Sandeep prepared the seizure memo of gold chains. The gold chain recovered from the Chaman Lal kept in a box and marked A & B and the other gold chain recovered from the accused Vishal was kept in other plastic box and marked as C. These three plastic box sealed with the seal of GS. After that disclosure statement of both accused person were recorded. SI Sandeep seized the motorcycle and prepared the seizure of the same. Both accused persons were taken into police custody. After that, as per disclosures, we reached at JJ Colony, Govindpuri and met a person namely Satender to whom they sold one gold chain. Satender shown a receipt of Manipuram Gold Loan, Kalkaji, where he kept the said chain in against a loan. After that, Satender has been arrested in another case. The case property deposited in Malkhana. Both accused persons were brought to the Special Staff Office for further interrogation and the information given to concerned PS. On next day, both accused persons were produced before the court in muffled face. On 14.07.2014, IO ASI Karan Singh recorded the statement u/s 161 CrPC."
3.8. HC Shekhar, was examined as PW8, his examination in chief is herein reproduced as under.
"On 10.07.2014, I was posted in Special Staff, South East District. At about 03:30pm we left the office along with SI Sandeep Godhara, HC Anil, HC Vinod, Ct. Suresh DVR in Govt Vehicle DL1CM :13: 4759 for petrolling. At around 04:30pm we reached near Metro Station, Govindpuri. A secret informer met with SI Sandeep Godhara. He informed that about 05:30pm a snatcher namely Chaman Lal will be arrived at Govt School, No 2, Kalkaji. The said information shared with the Inspector Rajesh Kumar, Special Staff. SI Sandeep Godhara asked some public persons to join the investigation however, no one agree to join the investigation and they went from the spot without disclosing their name and addresses. At 05:00pm we reached at Govt School, No. 2, Kalkaji in Govt vehicle (Gypsy). The Gypsy driver Ct. Suresh asked to hide the vehicle towards to K Block. At about 05:30pm, two motorcyclist waring helmet on FZ Yamha having blue colour reached at the school gate. They parked the bike and started talking with a person. The secret informer pointed towards accused Chaman Lal. The secret informer left the place after this. SI Sandeep Godhara apprehended the two persons with the help of us and the third person ran away. After interrogation, SI Sandeep Godhara found the driver of motorcyclist name is Vishal Goran @ Sumit and the second person was Chaman Lal. In personal search of Chaman Lal SI Sandeep found two gold chain (one chain was broken). One chain connected with a case registered at PS Kalkaji and the broken chain was connected with a case registered at PS - GK. Then, SI Sandeep Godhara conducted the personal search of Vishal and found a broken chain in his right pocket of paint. They disclosed that the said gold chains were snatched at DTC Kalkaji Depot, near Red Light from a lady, who was travelling through e-Rickshaw. After inquiry it was found that the :14: present case was registered in this respect. Further, Vishal disclosed that the remaining part of said chain is available with the other persons namely Ravi who ran away from the spot. After that, SI Sandeep prepared the seizure memo of gold chains. The gold chain recovered from the Chaman Lal kept in a box and marked A & B and the other gold chain recovered from the accused Vishal was kept in other plastic box and marked as C. These three plastic box sealed with the seal of GS. After that disclosure statement of both accused person were recorded. SI Sandeep seized the motorcycle and prepared the seizure of the same. Both accused persons were taken into police custody. After that, as per disclosures, we reached at JJ Colony, Govindpuri and met a person namely Satender to whom they sold one gold chain. Satender shown a receipt of Manipuram Gold Loan, Kalkaji, where he kept the said chain in against a loan. After that, Satender has been arrested in another case. The case property deposited in Malkhana. Both accused persons were brought to the Special Staff Office for further interrogation and the information given to concerned PS. On next day, both accused persons were produced before the court in muffled face. On 14.07.2014, IO ASI Karan Singh recorded the statement u/s 161 CrPC."
3.9. Sh. Lovekush, was examined as PW9, his examination in chief is herein reproduced as under.
"I am residing at above mentioned address alongwith my family. I am illiterate and neither write nor read Hindi or English language, however, I can sign in Hindi. I am a taxi driver at present :15: however, when the alleged incident occurred I was living in Delhi for my livelihood and I used to ride e-rickshaw. Owner of e-rickshaw was Man Singh Rathore. I do not remember the date, month and year of the incident, however, probably it took place six years ago. Police had inquired me regarding this case, however, I do not remember if I was inquired at the place of occurrence or in PS. Police recorded my statement.
On the day of incident at about 09:10 am. I was going towards Okhla Phase- I having 4-5 passengers from Kalkaji Temple. Complainant was sitting on the rear corner seat of e-rickshaw. When I reached near red light Kalkaji Bus Depot two boys came there from behind on a motorcycle and snatched the golden chain of complainant and ran away from the spot. I was busy in driving e-rickshaw due to which I could not see faces of the offenders. As I am illiterate due to which I could not note down the registration number of the motorcycle. Police was informed and present case was registered on the complaint of complainant."
3.10. Retd. SI Karan Singh, was examined as PW10, his examination in chief is herein reproduced as under.
"On 27.04.2014, I was posted as ASI at PP Okhla, Phase-III, PS Okhla Industrial Area. On that day, I was on emergency duty from 8:00 AM to 8:00 PM alongwith Ct. Sube Singh. I was marked DD No. 5- PP, already Ex. PW 4/A pertaining to chain snatching at around 10:00 :16: AM. I alongwith Ct. Sube Singh reached at the spot i.e. Red Light, in front of Kalkaji Depot, where we met the complainant Ms. Shimpi Singh alongwith her husband and kids. We inquired her about the incident and she got her statement recorded which is already Ex. PW 1/A. I prepared a tehrir vide Ex. PW 10/A bearing my signature at point A. I sent Ct. Sube Singh alongwith tehrir to the PS for registration of FIR. After registration of FIR, Ct. Sube Singh returned back to the spot alongwith original tehrir and copy of FIR and handed over them to me. I prepared the site plan vide Ex. PW 10/B bearing my signature at point A. I recorded statements U/s 161 Cr.P.C. of the complainant, her husband, Sh. Luvkush (eye witness) and Ct. Sube Singh. Thereafter, I returned back to PS. On 11.07.2014, DD No. 5-PP was marked to me from Special Staff, Madangir, South District pertaining to the arrest of accused in the present FIR. On 14.07.2014, I went to the office of Special Staff and collected the copy of Kalandara, already Ex. PW 6/B from SI Sandeep and recorded his statement U/s 161 Cr.P.C. On 16.07.2014, I plied for issuance of production warrants of accused persons and on 24.07.2014, 1 formally arrested the accused persons at Saket Court Complex vide arrest memos, already Ex. PW 4/B and Ex. PW 4/C, both bearing my signature at point B. Thereafter, I recorded the disclosure statement of accused persons vide already Ex. PW 4/D and Ex. PW 4/E, both bearing my signature at point B. I also took one day PC remand of accused persons after which, they were produced before the court and sent to JC.:17:
Thereafter, the TIP proceedings of the accused persons were conducted on 05.08.2014 during which, the husband of the complainant had correctly identified the accused persons vide already Ex. P-1 and Ex. P-2. On 11.08.2014, the case property was called from PS Kalkaji and deposited in the malkhana at PS OIA. On 12.08.2014, TIP proceedings qua the case property were done during which, the complainant correctly identified the case property. Thereafter, because of the recovery being effected from the accused persons, Section 411 IPC was added in the present case.
Both the accused persons are present in court today and correctly identified by the witness. Thereafter, I prepared the charge-sheet and filed the same before the Court."
STATEMENT OF ACCUSED
4. After conclusion of all the material prosecution witnesses, prosecution evidence was closed and statement of the accused persons u/s 281 CrPC r/w Section 313 CrPC was recorded. Accused persons submitted that they have been falsely implicated in the case. Accused Vishal stated that nothing has been recovered from his possession on the alleged point of date, time and place.
FINAL ARGUMENTS
5. I have heard the ld. Counsel for both the accused persons and the Ld. APP for the state.
6. Ld. APP for the state contended that the testimony of all the :18: all the prosecution witnesses corroborate with each other in material particulars and the case of the prosecution is proved beyond reasonable doubt.
7. Per contra, Ld. Counsel for the defense pointed out certain contradictions in the testimonies of the prosecution witnesses. It was argued that no videography/photography of the recovery was made. Despite presence of members of general public on the spot, IO has failed to join any public witness during investigation and therefore, there is no independent corroboration to the story of the prosecution. It was argued by the Ld. Counsel that the victim failed to identify the case property in the court, it was also argued that it is an admitted position that accused persons were wearing helmets at the time of commission of offence and there was no occasion for the complainant to see their faces, hence the identification during TIP and in the court cannot be relied upon.
8. DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
The question to be decided in the instant case is that whether the prosecution has been able to prove beyond the reasonable doubt the essential ingredients of the offences punishable under Section 392 IPC and Sec 411 IPC for which charges against the accused persons have been framed. Section 392 IPC provides for punishment for robbery, Section 390 IPC provides that theft is robbery when in order to commit theft, or in committing theft, in carrying away or attempting to carry away property by theft, the offender for that end voluntarily causes or attempts :19: to cause any person, death, hurt or wrongful restraint or fear of instant death, or of instant hurt or of instant wrongful restraint. Robbery is punishable under Section 392 IPC.
9. In a nutshell, the case of the prosecution is that on 27.04.2014 at about 09:10 AM at Maa Anandmai Marg, Kalkaji bus depot red light. Accused persons came on a bike, and snatched the gold chain of the complainant while she was sitting in an e-rikshaw along with her husband and 02 sons. Further, the case of the prosecution is that the stolen chain was recovered from accused Vishal on his arrest on the basis of a secret information.
10. The victim PW2 Ms. Simpi has no where stated in her testimony that the accused persons stopped or wrongfully restrained her. Victim/PW2 has also not stated that the accused persons caused hurt or attempted to cause hurt to her. Victim/PW2 has stated that accused persons came on a motorcycle and the pillion rider snatched the gold chain from her neck. The question to be decided by this court is that whether act of snatching can come under the definition of hurt. Section 319 IPC defines hurt as "whoever causes bodily pain, disease or infirmity to any person is said to cause hurt".
11. In the instant case there is no claim of the complainant of causing any bodily pain, disease or infirmity by the accused. For the sake of argument one may say that when the chain is snatched, that act might result into bodily pain, however, that wider interpretation does not seem appropriate when read in light of the punishment provided for the offence :20: u/s 392 IPC. Therefore, in the opinion of this court the present facts cannot constitute an offense punishable u/s 392 IPC. Rather the act of snatching the gold chain involves use of criminal force in commission of theft and is well covered u/s 356 IPC. Section 356 IPC provides for punishment when assault or criminal force is used in attempt to commit theft of property carried by a person. Section 356 provides that whoever assaults or uses criminal force to any person in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to 02 years or with fine or both.
12. Another related question is that since no charge of Section 356 IPC was framed against the accused persons, can they be convicted for these offenses. In this regard, it is pertinent to mention Section 222(2) CrPC which provides that when a person is charged with an offense and facts are proved which reduce it to a minor offense, he may be convicted of the minor offense, although he is not charged with it. Therefore, further analysis of the material available on record is required to ascertain that whether the prosecution has been able to prove the essential ingredients of Section 356 IPC.
13. Prosecution in order to prove its case has examined 10 witnesses. PW1 the husband of the complainant and victim/PW2 are the most crucial witnesses of the prosecution. PW1 Sh. Rajesh Ranjan and PW2 Ms. Simpi, narrated the factual matrix of the present case in their examination in chief, the versions of both the PWs corroborate with each :21: other. The testimony of PW9 Luv Kush who was the e-rikshaw driver at that time also corroborates with the version of PW1 and PW2 and consequently strengthens the case of the prosecution. In the present case the establishment of the identity of the accused persons is of utmost importance as from the testimonies of the prosecution witnesses, there is no doubt as to the fact that offence of snatching was committed against the complainant Ms. Simpi. The question that whether the present accused persons committed the said offence is to be adjudicated by this court.
14. For the purpose of identification, it is observed that PW1 and PW2 have correctly identified both the accused persons in the court. PW1 Sh. Rajesh Ranjan had correctly identified the accused persons during the TIP proceedings conducted on 05.08.2014. Those TIP proceedings were admitted by the accused persons in their statement u/s 294 CrPC. Those proceedings corroborate the identification done by the PW1 before this court. In Malkhan Singh & Ors. Vs. State of MP (2003) 5SCC, the Hon'ble Supreme Court held:
As a general rule, the substantive evidence of a witness is the statement made in 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 purpose of a prior test identification, therefore, is 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 witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.
15. PW1 was duly cross-examined by the Ld. Defence Counsel, :22: however, no material contradiction which shakes the testimony of the PW1 qua the commission of theft and use of criminal force has arisen. There is another aspect which requires consideration before relying on the testimony of PW1 regarding identification, that aspect was also raised by the Ld. Defence counsel which is that how the PW1 has identified the accused persons, when the PW1 himself has stated that the accused persons were wearing helmet at the time of offence. The said answer finds mention in the cross-examination of PW1 in which PW1 stated that when the accused persons fled with a high speed, he got to see the alleged snatchers body structure/ physical appearance from a distance while they took a turn. PW1 has also stated in the cross-examination that it is incorrect to suggest that he did not see the physical appearance of the alleged accused.
16. It can be concluded that PW1 identified the accused person in TIP on the basis of the physical structure of the accused persons, which the PW1 noticed at the time of offence. In the opinion of this court, to discard the testimony of PW1 regarding identification of both the accused in the court as well as during the TIP, on the basis that accused persons were wearing a helmet will not be appropriate as adopting such an approach would send a message that commission of snatching by wearing a helmet protects a wrong doer from being punished. It is not difficult or impossible for a person to identify someone on the basis of their body structure. The facts of the case indicate that sufficient time was available with PW1 to notice the body structure of the accused persons as the :23: accused after snatching took a u-turn to move into opposite direction towards Kalkaji Mandir. Thus, this court finds the testimony of PW1 regarding identification of both the accused persons before this court reliable.
17. In light of the above discussion, this court is of the opinion that offence u/s 356 IPC stands proved beyond reasonable doubts, the testimonies of PW1 and PW2 proves the factum of commission of offence and the testimony of PW1 proves the identity of the offenders, this testimony of PW1 is also found to be reliable in light of the cross- examination conducted on the aspect of identity.
18. It is also to be noted that accused Vishal is charged in the instant case for offence u/s 411 IPC as well. The Hon'ble High Court of Delhi in 'Sunil Mashi@ Silly vs State Nct Of Delhi ' (Criminal appeal no.610/2013 decided on 14.10.2014) held., "As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under Section 411 IPC. As such, his conviction under Section 411 IPC is set aside."
Further the Hon'ble High Court of Allahabad in ' Gopi Jaiswal vs State Of U.P.' (Criminal appeal no.1899/2009 decided on 8 November, 2011) held, "In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be made under Section 379 IPC. His conviction :24: under Section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under Section 411 IPC. Therefore, the order of conviction and sentence passed against the appellant under Section 411 IPC cannot be upheld."
19. In light of the law discussed in the above-mentioned respected judgments, since this court has already arrived at a conclusion that offence u/s 356/34 IPC is duly proved beyond reasonable doubt against both the accused persons, therefore, this court does not deem fit to convict the accused Vishal for offence u/s 411 IPC. Hence, no discussion regarding the objections regarding recovery and identification of the case property is herein made.
20. In light of the above discussion, this court holds that the prosecution has been able to establish its case beyond reasonable doubt and accused Chaman Lal Chauhan and Vishal Gurang are convicted for offence u/s 356 IPC r/w Section 34 IPC.
Pronounced in the open court on 18.12.2023.
Judgment contains total 24 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 18.12.2023