IN THE COURT OF Ms. [ENTITY] METROPOLITAN MAGISTRATE-01(CENTRAL), TIS HAZARI COURTS, DELHI - 110054 FIR No.280/08 [PRECEDENT] [ENTITY] U/[SECTION] [ACT] CNR No. DLCT-02-000733/09 CIS No.300481/16 JUDGMENT
(a) Sr. No. of the Case 300481/16 (b) Date of offence 03.11.2008 (c) Complainant [ENTITY] D/o. [ENTITY], R/o. M-25-, K-2, Dishad Garden, Delhi-95. (d) Accused [ENTITY] S/o. Sh. [ENTITY], R/o. [ENTITY], Near Metro Station, Shahdara, Delhi. (e) [SECTION] [ACT] (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 18.04.2009 (i) Date when judgment was 31.08.2018 reserved (j) Date of judgment 31.08.2018 FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 1 of 13 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Darya Ganj against accused [ENTITY] for the offence U/[SECTION] [ACT].
2. It is the case of the prosecution that on 03.11.2008, at about 04:30 pm, at Delhi Stock Exchange Building, Asaf Ali Road, accused dishonestly removed a gold chain belonging to complainant [ENTITY] from her neck without her consent and thereby committed offence punishable under [SECTION] [ACT].
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused [ENTITY] in compliance of [SECTION] [ACT] Thereafter, charge under [SECTION] [ACT] was framed against the accused by the Ld. Predecessor of this court vide order dated 22.07.2011 to which she pleaded not guilty and claimed trial.
4. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
5. In order to prove the guilt of the accused, prosecution examined as many as 6 witnesses.
6. PW-1 is [ENTITY], who deposed that on 03.11.2008, she was accompanied with her father Sh. [ENTITY] and two younger sisters [ENTITY] and [ENTITY], that at about 4:30 pm, she felt a sensation on her neck as if someone was removing her chain, that she immediately checked and saw the accused had removed her chain and her hand was on her shoulder, that she caught hold of her hand but she immediately took the chain in her other hand and handed over the same to some other lady behind her, that she had seen the other lady who managed to FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 2 of 13 flee away from the spot, that she took the accused to the police station and reported the matter, that her complaint is Ex. PW-1/A, that case property was never recovered, that arrest memo and personal search memos are Ex. PW-1/B and Ex. PW-1/C, that disclosure statement of accused is Ex. PW-1/D.
7. In the cross examination, she deposed that there was a big crowd at the spot as it was a day of [ENTITY], that the police officials never came to the spot with her after she visited the PS, that her statement was recorded at the PS on the same day at about 4:45 pm, that the proceedings were conducted by the police officials in her presence at the PS, that police officials had recorded statement of her father as well, that she never met police officials after the day of incident, that she remained at the PS for about 1 or 1.5 hours, that her statement was recorded only once by the police officials, that the police officials never demanded any bill of her chain, that she had raised alarm after the incident but loud music was there due to drums being played on the day, that nearby people had also seen the incident, that the other lady was standing at some distance and the accused had thrown the chain at her, that she was standing at a distance of about four-five meters towards right side of the accused, that the said lady was standing on footpath and a few persons were also present between her and the accused, that few persons were also present on the said footpath but it was not as crowded as the road, that her father had tried to chase the said lady but she managed to flee away taking benefit of the crowd, that at the time of incident, her father was standing at a distance of about one meter, that some persons was present between her and his father, that she told her father about theft of her chain when she raised alarm. She denied that no such chain of her was stolen, that her father was not present at the spot and was called later on phone, that she is deposing falsely.
8. PW-2 is [ENTITY], who deposed that on 03.11.2008, he was present in [ENTITY] with his children at Delhi Gate, near Delhi Stock Exchange Darya Ganj, that at about 4:30 pm, he went to a FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 3 of 13 water stall near the Delhi Stock Exchange, that after sometime, her daughter [ENTITY] told her that one lady had stolen her chain and she had caught hold of the said lady, that his daughter further informed that the said lady had handed over her chain to another lady, that a crowd had gathered at the spot, that he called the police and the police officials came to the spot, that they handed over the accused to them, that arrest memo is Ex. PW-1/B and disclosure statement is Ex. PW-1/D.
9. In the cross examination, he deposed that he had called the police through his mobile phone at about 4:40 pm soon after the incident, that the PCR reached there within 10 minutes, that local police came within 5 to 7 minutes thereafter, that the PCR officials did not do any writing work except noting their names, that the PCR vehicle left the spot after arrival of the officers of PS, that police officials had recorded the statement of her daughter at the first instance, that a huge crowd was present at the spot but no other person tried to include himself due to complications, that police officials did not record statement of any public person in his presence, that he remained at the spot for more than two hours, that police officials had requested several persons to join proceedings but none had agreed and left the spot, that police officials did not note the names of addresses of such persons and did not give any notice in writing to them, that the writing work was done while sitting at the empty stalls at the spot after the crowd had moved ahead, that the incident took place at the stall itself where the proceedings were conducted, that he had seen the site plan prepared by the police officials, that the said stall was shown in the same, that he cannot tell by what name the said stall was mentioned in the site plan, that he never saw the other lady to whom the chain had been handed over and this fact was told to him only by his daughter, that his daughter was standing within a distance of 5 meters from him at the time of incident, that number of persons were present between him and his daughter, that his daughter had raised alarm, that he never tried to chase the other lady as he was more concerned with his daughter. He again said that he had tried to go a few feet towards the other lady initially when her daughter raised alarm, but he returned FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 4 of 13 immediately. He deposed that he did not see the distance between his daughter and the other lady, that they left to their home from place after completion of proceedings, that he never went to the PS after the incident with respect to the present case. He voluntarily deposed that he had inquired about the case only on telephone. He deposed that the bill of the chain was never handed over to the police by his daughter. He denied that no such chain was stolen, that all the proceedings were conducted at the PS, that he is deposing falsely.
10. PW-3 is ASI [ENTITY], who deposed that on 03.11.2008, IO/WSI [ENTITY] produced rukka before him for registration of FIR, that on the basis of which he registered FIR Ex. PW-3/A, that endorsement on rukka is Ex. PW-3/B, that Certificate under [SECTION] of [ACT] is Ex. PW-3/C.
11. PW-4 is W/Ct. [ENTITY], who deposed that on 03.11.2008, she was posted at PS Darya Ganj as W/Ct., that she received one original rukka and copy of present FIR and went to Asaf Ali Road and handed over to SI [ENTITY], that IO recorded the disclosure statement of accused [ENTITY] in her presence which is Ex. PW-1/D, that IO arrested the accused vide arrest memo Ex. PW-1/B and personal search memo is Ex. PW-1/C, that she got the accused medically examined at JPN Hospital, that accused was brought to the PS and the recovered articles were deposited in the Malkhana.
12. PW-5 is Ct.[ENTITY], who deposed that he was posted as constable at PS Darya Ganj, that he accompanied SI [ENTITY] in the investigation of the present case, that they along with accused [ENTITY] had gone to Shadara Metro Station where they tried to search the other accused but in vain, that no one identified accused [ENTITY] there, that IO recorded statement some rehriwala who told that accused was not residing there, that IO recorded his statement.
13. PW-6 is SI [ENTITY], who deposed that on 03.11.2008, she was posted FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 5 of 13 as SI at PS Darya Ganj, that at about 6:30 pm, complainant [ENTITY] along with her father [ENTITY] and one foreigner lady namely [ENTITY] and accused [ENTITY] came to the police station, complainant stated that accused [ENTITY] stole her gold chain from her neck, that complainant gave her complaint which is Ex. PW-1/A. She further deposed that she prepared one tehrir on the statement of complainant and the said tehrir Ex. PW-6/A and thereafter, she handed over the same to DO for registration of FIR, that she along with complainant, father of complainant and her friend and accused went to the spot i.e. Delhi Stock Exchange Building near Asaf Ali Road, Darya Ganj, Delhi, at the spot, she prepared site plan at the instance of complainant Ex. PW-6/B, that in the meantime, W/CT. [ENTITY] came to the spot and handed over to her original tehrir and copy of FIR, that she also arrested the accused vide memo ex. PW-1/D, that she also conducted personal search of accused vide memo Ex. PW-1/C, that she also recorded the disclosure statement of accused which is Ex. PW-1/D, that she also tried to search for co- accused [ENTITY] and tried to find out the case property but could not find them, that she also got the medical examination of accused conducted at JPN Hospital, that on 04.11.2008, she inspected the address given by accused but the same address was found to be incorrect and she recorded the statement of two local persons namely [ENTITY] and [ENTITY] who stated that they had never seen the accused, that the statement are on record and are Ex. PW-6/C and Ex. PW-6/D, that she also tried to obtained PC remand of the accused for searching the accused and case property but could not get the permission of the same.
14. In the cross examination, she deposed that she cannot say to whom complainant first interacted with after entering in PS Darya Ganj, that SHO PS Darya Ganj handed over the investigation of this case to her, that she do not remember the DD number of the same, that she could not say whether complainant met SHO or not on that day, that she may have handed over the tehrir to DO at about 7:00 pm, that she left the PS along with along with complainant at about 7:05 pm vide DD No. 28-A, that she came back to PS at about 8:55 pm and made the DD entry no. 30-A for FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 6 of 13 the same, that copy of FIR that was handed over to her was of one page written on both sides, that Certificate under [SECTION] of [ACT] for the present FIR was not filed with the chargsheet, that they may have reached at the spot at about 7:10 pm, that she recorded the statement of father of complainant, supplementary statement of complainant, arrest memo, personal search memo, disclosure statement of accused, site plan, that one foreigner lady [ENTITY] who was accompanying complainant also gave her complaint against the accused for trying to steal the gold chain of said foreigner lady, that the said statement is Ex. PW-6/E, that arrest memo was signed by her, complainant, her father and lady Ct. [ENTITY], that personal search was signed by complainant and lady Ct. [ENTITY] and the articles found in person search were mentioned in the personal search memo Ex. PW-1/C and she do not remember the said articles due to lapse of time, that some public persons were present at the spot and she tried to enquire from them but none agreed, that she also enquired from the shops nearby the spot of incident but did not take any action against them for refusal to join the investigation, that she do not remember whether she has shown the said shops in the site plan or not, that Asaf Ali Road is a busy road, that she cannot say whether public persons stopped while police investigation was going on while seeing the police official or not, that she do not know whether any official were present at DSE building or not at that time, that from the spot, she took accused to LNJP Hospital for getting her medical examination done and may have reached there at about 8:00 pm, that she is not able to recall as to what spots or places were visited by her in search of co-accused and case property after the medical examination of the accused, that she did not make [ENTITY] and [ENTITY] as witness in the present case. She denied that all the investigation was done while sitting in the PS, that all the documents were prepared while sitting in the PS, that she never visited the spot of incident, that she is deposing falsely.
15. It is pertinent to mention here that PW [ENTITY] was dropped from the list of witnesses considering that she is a supporting witness only vide order dated 20.03.2015 passed by Ld. Predecessor of this FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 7 of 13 Court.
16. It is also pertinent to mention here that PW Ct. [ENTITY] and PW HC [ENTITY] were dropped from the list of witnesses vide order dated 17.05.2016 passed by Ld. Predecessor, on the submissions of Ld. APP for the State as PW-5 has deposed on the same facts.
17. Thereafter, PE was closed and matter was fixed for SA. Statement of the accused [ENTITY] under [SECTION] [ACT] was recorded vide order dated 25.06.2018 by putting entire incriminating evidence to the accused. She denied the allegations against her and stated that she has been falsely implicated in the present case. Accused did not chose to led DE, therefore, DE was closed and the matter was fixed for final arguments.
18. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
19. Perusal of the record reveals that accused [ENTITY] was charged with the offence under [SECTION] [ACT].
20. 379 [ACT] stipulates that:-
" Punishment for theft- whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
21. It is the case of the prosecution that on 03.11.2008, at about 04:30 pm, at Delhi Stock Exchange Building, Asaf Ali Road, accused dishonestly removed a gold chain belonging to complainant [ENTITY] with from her neck without her consent and out her possession and thereby committed offence punishable under [SECTION] [ACT].
FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 8 of 13
22. The only eye witness examined in the case in hand is PW- 1/victim/complainant [ENTITY], who categorically deposed that at the time of incident she was accompanied with her father [ENTITY] and two sisters namely [ENTITY] and [ENTITY], however, aforesaid [ENTITY] and [ENTITY] are neither cited nor examined as witness in the case in hand for the reasons best known to the investigating agency.
23. PW-2 [ENTITY], father of the complainant categorically deposed that at the time of incident he went to water stall and after sometime PW-1 told him that one lady has stolen her chain which gives impression that his testimony is hearsay being derived from the knowledge of her daughter and he is not an eye witness of incident in question. He further deposed that he never tried to chase the other lady as he was concerned about her daughter, on the contrary PW-1 in her cross examination categorically deposed that her father i.e. PW-2 tried to chase the said lady but she managed to flee away from the place of incident by taking benefit of crowd present over there, thereby contradicting testimony of PW-2 regarding chasing of other accused lady. PW-1 deposed that her father was standing at the distance of about one meter at the time of incident, however, PW-2 deposed in his cross examination that he was standing five meters away from his daughter, thereby contradicting the testimony of PW-2 regarding distance.
24. It is also pertinent to note that PW-1 deposed that her statement was recorded in the PS on the same day at bout 4;45 pm but PW-2 deposed that they left for the home from the spot and had not gone to the PS which is again a material contradiction.
25. Admittedly there is no recovery of case property/stolen property in the present case so as to establish the guilt of the accused beyond reasonable doubt and testimony of PW-1 and PW-2 consist of several material contradictions.
FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 9 of 13
26. Perusal of the testimony of PW-1 and PW-2 reveals that incident happened in the crowded place and public persons were present there despite that independent public witness has not been join for the reasons best known to the investigating agency.
27. The non-joining of other public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of other public witnesses and no efforts seem to have been made for joining other independent witnesses.
28. The Law in this regard has also been enunciated clearly in case titled as "[PRECEDENT], wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "[PRECEDENT], it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "[PRECEDENT], it has been held as under :-
FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 10 of 13 "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "[PRECEDENT] it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "[ENTITY] Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"[ENTITY] has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to [ENTITY], he did not join any public witness in the case while according to [ENTITY], no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. 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 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 FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 11 of 13 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. In the case of "[PRECEDENT], the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "[PRECEDENT], conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "[PRECEDENT], it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "[PRECEDENT] and "[PRECEDENT], it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
29. Other witnesses are formal in nature who cannot establish the guilt of the accused beyond reasonable doubt.
30. In view of the aforesaid facts and circumstances, appreciation of FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 12 of 13 evidence, absence of case property/stolen property, material contradiction in the testimony of PW-1 and PW-2 and non joining of other public witnesses, prosecution has failed to establish its case against the accused [ENTITY] beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused [ENTITY] stands acquitted of the offences under [SECTION] [ACT] accordingly.
31. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of [SECTION] A [ACT]. Same is accepted for a period of six months from today.
32. File be consigned to the record room after due compliance.
Pronounced and Signed [ENTITY] signed by [ENTITY] in the Open Court on 31.08.2018 JAIN Date: 2018.08.31 16:42:31 +0530 ([ENTITY]) MM-01(Central)/THC/Delhi 31.08.2018 FIR No.280/08 [PRECEDENT] [ENTITY] Page No. 13 of 13