Delhi District Court
State vs . : Rajesh Kumar on 26 May, 2010
IN THE COURT OF SH. SHAILENDER MALIK:
METROPOLITAN MAGISTRATE (NORTH)
TIS HAZARI COURTS: DELHI
State Vs. : Rajesh Kumar
FIR No : 258/98
U/s : 356/379/411/34 IPC
P.S. : Kashmere Gate
JUDGMENT
S.N. Particulars Details
1 Serial number of the case : Not mentioned
2 Date of commission of offence : 25.07.98
3 Date of institution of the case : 03/08/99
4 Name of the complainant : Smt. Anita Gupta
5 Name of accused, parentage & : (1) Rajesh Kumar @ Sonu S/o Ramji Lal, R/o A12/22, Gali address No.8, South Gamdi, Delhi (2) Siraj Khan @ Sonu, S/o Ajmuddin, R/o A-514/3 South Gamdi, Delhi (3) Rajesh Kumar Tiwari @ Nanu S/o Jiya Lal, R/o A-
514/2, Gali No.4, South Gamdi, Delhi 6 Offence complained or proved : 356/382/34 IPC & 25 Arms Act 7 Plea of the accused : Pleaded not guilty 8 Final Order : All the three accused acquitted 9 Date of reserve for order : 10/05/10 10 Date of final order : 26/05/10 Brief facts of the case:
1. Accused Rajesh Kumar @ Sonu S/o Ramji Lal, Siraj Khan @ Sonu S/o Ajmuddin and Rajesh Kumar Tiwari @ Nanu S/o Jiya Lal have been sent up to face trail for offence U/s 356/379/411/34 IPC along with offence U/s 25 Arms Act. Factual matrix of the matter is that on FIR No. 258/98 1 State Vs. Rajesh Kumar & Oths.
25.07.98 upon receipt of DD no. 13B, ASI Balbir Singh along with Ct.
Pradeep Kumar went to Maharaja Agarsen Park chowk, where they met with complainant Anita Gupta, who while producing one plastic bag gave her statement to the effect that she is a house wife and on that day she had gone to Chandni Chowk to purchase sweets etc. in her maruti car bearing registration no. DL1C-E-1396 along with her servant Madhusudan and driver J.K. Jha. It is stated that after purchasing the sweets etc., at about 09.45 am when she was going back to her home, at ISBT chowk when her car was slow in speed, in the meantime, two boys who were aged about 20-22 years, out of which one boy wearing blue colour shirt and another boy was wearing cream colour lining shirt came near to her car and forcibly snatched her golden chain from her neck which was weighing around three and a half tola after putting their hand inside the car. Complainant further says that after the above said incidence she immediately raised the voice and accused tried to ran away after jumping the grill of the road and ran towards Maharaja Agarsen Park. However, in that process one plastic bag dropped from the hand of the accused and accused persons went inside of the park. Complainant further says that her servant and driver when took that bag and opened the same, one country made pistol, which is to be opened from the help of button and on which there was a coin attached whereas there was a wooden cover on the 'butt' of the said pistol and barrel was of iron. Complainant further says that she called the police by dialing 100 number from her cellular phone and upon reaching of the police she had produced that country made pistol and gave the said statement and upon her statement, present case was registered and investigation was carried out.
2. In the course of investigation, IO prepared the site plan and also prepared the sketch of the country made pistol and took into the police possession. It is stated that on 02.08.98 accused Rajesh Kumar Tiwari @ Nanu, Rajesh Kumar @ Sonu and Siraj Khan @ Sonu were arrested. It is stated that all the accused persons made a disclosure statement and also pointed out the place of occurrence. The golden FIR No. 258/98 2 State Vs. Rajesh Kumar & Oths.
chain snatched from the neck of the complainant was also got recovered from accused Rajesh Kumar Tiwari @ Nanu and was also taken into police possession. It is stated that case property i.e. golden chain was identified by the complainant in the course of investigation and in the course of investigation, accused refused to participate in the TIP proceedings before Ld. MM.
3. Upon completion of investigation, charge sheet was filed in the court. Copy of charge sheet was supplied to accused free of cost and after considering the material available on the record, Ld. predecessor of this court vide order dated 04.06.02 framed charge for offence U/s 356/382/34 IPC as against all the three accused whereas the charge for offence U/s 25 Arms Act was framed against the accused Rajesh Kumar Tiwari @ Nanu, to which accused persons pleaded not guilty and claimed trial.
4. In order to substantiate the charge prosecution has examined eight witnesses. PW1 is K.C. Varshey, Sr. Scientific Officer of FSL Malviya Nagar, who has testified that he had examined the case property i.e. country made pistol Ex. P1 and which was found to be in working condition. He proved his report Ex. PW1/A. PW2 is HC Ashok Kumar, who has testified that on 02.08.98 when he was posted at PS Kashmere Gate, he joined the investigation of the present case with SI Harish Kumar and were checking the buses coming from Trans Yamuna area. PW2 says that three boys got down from one bus and upon apprehension, their names were revealed to be Rajesh Kumar Tiwari, Rajesh Kumar and Siraj Khan and on conducting of personal search, one golden chain was recovered from the possession of accused Rajender Kumar Tiwari from the right side pocket of his shirt. The said chain was kept in a match box and was sealed with the seal of HCR and taken into possession vide seizure memo Ex. PW2/A. PW2 further says that all the three accused persons were interrogated and upon which they made disclosure statement Ex. PW2/B, 2/C and 2/D. PW2 further says that accused even pointed out the place of occurrence and as per their disclosure statement, pointed out memo Ex. PW2/E to 2/G were FIR No. 258/98 3 State Vs. Rajesh Kumar & Oths.
prepared. Case property is stated to be deposited in the Malkhana of PS and thereafter same was identified by the witnesses to be the same which was recovered from the possession of accused Rajesh Kumar Tiwari.
5. PW3 is complainant Anita Gupta, who has testified that on 25.07.98 when she was returning from Chandhi Chowk in her maruti car bearing registration no. DL1C-E-1396 which was being driven by her driver J.K. Jha. PW3 states that at about 09.40 am when here vehicle reached near ISBT chowk, two young boys aged about 20-22 years, one of them was wearing blue colour shirt and second one was waring cream colour lining shirt. PW3 further says that the boy, who was wearing blue colour shirt snatched her golden chain weighing about 3.5 tola from his neck after putting his hand in the left side window of his car. Thereafter, those persons started running towards Maharaja Agresen Park. PW3 further says that she shouted and came out from her car and those accused persons who were having one bag containing one country made pistol in their bag, fell down on the road. Complainant thereafter says that she called the police by dialing 100 number from her cell phone and subsequently when police came there and took up the said bag containing one country made pistol and recorded her statement Ex. PW3/A. Complainant further says she pointed out the place where the alleged occurrence of snatching of golden chain had taken place. On the basis of which IO prepare the site plan and said country made pistol was also taken into possession by the police. PW3 states that she identified the golden chain in front of Magistrate which is still with the police and witnesses had also identified the accused Rajesh Kumar @ Sonu S/o Sh. Ramji Lal and accused Siraj Khan to be the persons who were present at the time of occurrence, out of which she identified the accused Rajesh Kumar @ Sonu to be the accused who snatched her golden chain from her neck. PW3 also identified the country made pistol recovered from the spot as well as her golden chain which were proved Ex. P1 and P2.
6. In the course of trial, PW3 was again called upon in terms of FIR No. 258/98 4 State Vs. Rajesh Kumar & Oths.
provisions of Section 311 Cr.PC for cross-examination as at the time of recording examination in chief, the counsels for the accused persons were not available and Ld. Predecessor of this court closed the opportunity to cross-examine her. As such PW3 was duly duly cross- examined on 10.09.09. Her cross-examination will be discussed in the later part of the judgment.
7. PW4 is ASI Kaushal, who was the duty officer and has proved the formal FIR Ex. PW4/A. PW5 is SI Balbir Singh, who partly investigate the matter and stated that upon receipt of DD no. 13B he along with Ct. Pradeep Kumar had gone to ISBT chowk near Maharaja Agresen Park where they met with complainant Anita Gupta, who produced one plastic bag containing country made pistol. PW5 further states that he recorded the statement of complainant and prepared the rukka and handed over the same to Ct. Pradeep Kumar for getting the case registered. PW5 further states that he also prepared site plan Ex. PW5/A at the instance of complainant and had also prepared the sketch of the country made pistol Ex. PW5/B, which was subsequently taken into possession after sealing it vide seizure memo Ex. PW5/C.
8. PW6 is SI Harish Chander, who has also partly investigate the matter. He has testified that on 02.08.98 he was present at Mori Gate Terminal along with HC Ashok Kumar and other staff and checking the buses. PW6 says that he has received the secret information to the effect that three boys, who are involved in the present case of golden chain snatching are coming from the bus from Trans Yamuna. Upon checking, three boys got down from the bus and upon suspicion they were apprehended and their name were revealed to be Rajesh Tiwari, Siraj @ Sonu and Rajesh Kumar and upon personal search of accused Rajesh Kumar Tiwari, one golden chain was recovered from the right pocket of his shirt which was kept in the match box and was sealed with the seal of HCR which was taken into possession vide memo Ex. PW6/A. Rest of the evidence is on the same terms as PW2.
9. PW7 is HC Shiv Prasad, who had taken the case property to FSL, Malviya Nagar. PW8 is SI Dal Chand, who after receiving of FSL FIR No. 258/98 5 State Vs. Rajesh Kumar & Oths.
report and recorded the statement of certain witnesses and filed the charge sheet in the court.
10. Upon completion of prosecution evidence all the incriminating evidence were put to the accused in statement of accused recorded u/s 281/313 Cr. PC, in which accused separately denied the evidence and have taken the plea that they have been falsely implicated in this case. Accused Siraj Khan has taken the plea that he is innocent and was falsely implicated in this case and he was apprehended at his house on 29.07.98 at the instance of Ct. Pradeep Kumar and brother of Deva, who is BC of PS Usmanpur. Similar is the plea of accused Rajesh Kumar @ Sonu and Accused Rajesh Kumar Tiwari.
11. In defence two witnesses were examined by the accused. DW1 is Man Singh, who has stated that he is acquainted with accused Rajesh S/o Ramji Lal for last 15 years. He further says that as per his information, police never lifted the accused Rajesh in his presence. However, he had seen five persons in normal cloths came at about 05.00 am in the morning of 29.07.98 and came to his store and inquired about the house of the accused Rajesh and thereafter, he took those persons to the house of the accused Rajesh where from Rajesh was forcibly taken and when he inquired from them, they stated that they are taking the Rajesh to PS Kashmere Gate and he will be released by 07-08.00 am and he had not seen anybody else along with the Rajesh, when he came back at the house. DW2 Smt. Santosh, who has stated that he is acquainted with Siraj @ Sonu and Rajesh Kumar Tiwari for about 20 years as they are her neighbors. DW2 says that Siraj Khan and Rajesh Kumar Tiwari were arrested on 29.07.98 at about 04.30 am she saw Rajesh Kumar Tiwari @ Nanu being arrested by 4-5 police persons. DW2 says that police persons inquired from her about the house of Siraj Khan and she pointed out the police persons regarding the house of Siraj Khan and thereafter they arrested him. DW2 further says that other neighbors were also gathered at that time and when she inquired from the police officials as to why are they taking away the accused FIR No. 258/98 6 State Vs. Rajesh Kumar & Oths.
Siraj and Rajesh Kumar Tiwar upon which police persons told her that they are making some inquiries from them they will be released subsequently. DW2 further says that police persons were in normal cloths.
12. Having heard the submissions at bar and having gone through the record carefully, if we appreciate the evidence came on the record, question to be seen is that as per the complainant Smt. Anita Gupta when she gave the statement to police according to her there were two accused persons who were present at the spot at the time when her golden chain was snatched but police has charge sheeted three accused persons. If we go through the evidence of PW3 Anita Gupta she in her deposition has stated that it was accused Rajesh Kumar @ Sonu S/o Ramji Lal and Siraz Khan @ Sonu S/o Ajmuddin whom PW3 identified to be the accused persons who were present at the time of incidence and out of which it was accused Rajesh Kumar @ Sonu who stated to have snatched the golden chain from her neck by putting his hand inside the window of the car. Now, in view of the specific evidence given by PW3 question arises regarding identity of the accused persons. PW3 though has stated that she identified the case property i.e. golden chain before the MM as well as also identified the accused persons on the same day but there is no Test Identification Parade against any of the accused persons. It is to note prior to trial, there is no TIP of any of the accused on record. Although on minute analysis of the facts and the investigation would show that IO ASI Balbir Singh had applied before Ilaka MM on 06.08.98 for TIP of all the three accused persons and Ilaka MM marked the TIP proceedings to Link MM but there is an endorsement on the application itself on 06.08.98 and it would be evident from the police file that since the accused persons refused to go for TIP therefore TIP was not carried out but surprisingly there is no refusal recorded from any of the accused. Neither specific statement of refusal of accused to join in TIP is on record nor the name of MM, who carried out the proceedings is cited in list of witness. Moreover, in this background the supplementary FIR No. 258/98 7 State Vs. Rajesh Kumar & Oths.
statement given by the complainant Anita Gupta becomes important which IO stated to have recorded on 06.08.98. Perusal of the said supplementary statement would show that in that statement complainant have stated that while bringing the accused to Tis Hazari Court she saw the accused persons and she identified Rajesh Kumar Tiwari and Siraz Khan to be the persons who were present at the time of incidence of chain snatching. Evidently, she stated different names of the accused persons at the time of giving her statement in the court on 18.11.98. In her deposition she named the accused Rajesh Kumar @ Sonu S/o Ramji Lal and Siraz. Those two boys who were present at the time of the incidence whereas in her statement to the IO recorded on 06.08.98 she named the accused Rajesh Kumar Tiwari along with Siraz to be the two persons who were present at the time of incidence. Evidently, there is conflict as to who were the two accused persons present at the time of incidence out of three accused and in such conflict of identity, proceedings of the TIP assumed even more importance which has not been carried out in the investigation. If we take the police file into consideration, if the accused have refused to undergo the TIP proceedings it was required to record the refusal of the accused but there is no TIP proceedings at all on the record nor IO had cited any of the MM as a witness for the TIP proceedings.
13. An identification for the first time in the court in the absence of any prior TIP makes the whole of the testimony of the witnesses doubtful. So far as regarding identity of the accused. This court is conscious of the fact that the serious crime of chain snatching had committed but at the same time court is also required to see that there should be some legal, cogent evidence for fastening the criminal liability against the accused. In this case whole of investigation is most shaky and improper and today because of improper investigation, legal admissible evidence could not come on the record.
14. PW3 on the one hand is testifying in her evidence that she identified the case property i.e. golden chain in front of the Magistrate, but there is no proceedings of identification of the case property FIR No. 258/98 8 State Vs. Rajesh Kumar & Oths.
carried before the Ld. MM on the record. She had identified the case property as well as the accused only for the first time in the court. In the facts of present case, one must born in mind that accused were unknown to complainant nor they were apprehended at the spot. In view of the conflicting version as to the involvement of the accused persons at the time of the crime there is some confusion as to their identity.
15. The matter can be appreciated from the another angel. Evidently, both the two accused persons involved in the incidence but three accused persons were arrested and in this regard the evidence of PW2 HC Ashok Kumar is very relevant. He has testified that on 02.08.98 he was present along with SI Harish Kumar for checking the buses etc. coming from Trans Yamuna and three boys got down from the bus. Upon apprehension they revealed their names to be Rajesh Kumar Tiwari, Rajesh Kumar and Siraj and it is only on the personal search of accused Rajesh Kumar Tiwari one golden chain was recovered. Subsequently, as per PW2 both those three accused persons gave the disclosure statement and point out the place of incidence. The disclosure statement in presence of police as to the involvement in the crime by itself is hit by provisions of Section 25 and 26 of Indian Evidence Act and in the absence of any recovery pursuant to said disclosure statement, is also not admissible U/s 27 of Indian Evidence Act because alleged recovery of golden chain had already been effected as per the evidence of PW2 prior to giving disclosure. Moreover, taking the story of prosecution on the face of it when golden chain has been recovered from the possession of accused Rajesh Kumar Tiwari whereas accused Rajesh Kumar Tiwari was not told by complainant in her statement to be one of the person present at the time of incidence. In such circumstance, identification of the accused persons was even more important but unfortunately TIP was not carried out by the IO. Moreover, evidence of PW2 is conflicting to evidence of PW6 SI Harish Chander. Thus even recovery of golden chain is also surrounded by some suspicious circumstances. Moreover, alleged recovery was FIR No. 258/98 9 State Vs. Rajesh Kumar & Oths.
effected at the time of when there is no independent witness.
16. So far as regarding charge of offence U/s 25 A. Act against the accused Rajesh Kumar Tiwari, I find that prosecution is miserably failed to substantiate that charge even as per the facts itself recovery of the Countrymade pistol has not been effected from the personal and constructive possession of the accused Rajesh Kumar Tiwari. As per the statement given by the complainant two accused persons while escaping from the spot of incidence and were trying to jump the grill in between the road a bag was fell on the road and subsequently complainant when checked the said bag one countrymade pistol was recovered. Thus, evidently when the countrymade pistol was not recovered from the personal possession of accused Rajesh Kumar Tiwari, I find that charge for offence U/s 25 A. Act cannot be established against the accused. Thus even this charge has also not been established by the prosecution rather facts are such that charge is not even made out. Consequently, for the reasons discussed above, I find that prosecution could not connect the accused with the crime and benefit of doubt has to be given to the accused persons. As such all the accused persons are acquitted. File be consigned to record room.
Announced in open
court on 26.05.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
FIR No. 258/98 10 State Vs. Rajesh Kumar & Oths.