Pawan vs The State (Nct Of Delhi) & Anr
2015 Latest Caselaw 2413 Del

$~
*	IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

Date of Decision:  23rd March, 2015
+ 	CRL.REV. 717/2014
	PAWAN							        ..... Appellant
Through:	Mr.Mir Akhtar Hussain, Mr.S.Lakhi Singh and Mr.Ahmad Parvez, Advocates
				versus

	THE STATE (NCT OF DELHI) & ANR		   ..... Respondents

Through: Ms.Fizani Hussain, APP for the State along with SI Sandeep Singh from police station Sarai Rohilla, Delhi.

CORAM:

HON'BLE MS. JUSTICE SUNITA GUPTA

J U D G M E N T

: SUNITA GUPTA, J.

1. This is a revision petition under Section 401 Cr.P.C read with Section 482 Cr.P.C filed by the petitioner aggrieved by the judgment and order dated 30.10.2014 passed by learned Additional Sessions Judge (Central), Tis Hazari Courts, Delhi in Crl.A.No.36/14 whereby the conviction of the petitioner dated 07.11.2013 and order on sentence dated 05.09.2014 passed by the learned Metropolitan Magistrate was partly confirmed and he was convicted under Section 411 IPC and sentenced to undergo simple imprisonment for one year.

2. On 26.04.2005 Smt.Pooja had gone for morning walk in park at about 7.00 am. When she was returning home and reached near Hanuman Mandir outside Darbar Khan Nursery two boys came in a two wheeler scooter coloured green make Chetak aged about 30/35 years wearing cream colour pant and shirt snatched her gold chain weighing two tolas and managed to run away. She raised alarm but nobody came to her rescue. She informed police on 100 number. On the basis of which DDNo.9A was recorded. Her statement Ex.PW1/A was recorded which culminated in registration of FIR. During the course of investigation, accused Pawan and Amit were arrested. Two wheeler scooter No. DL 6SF 1267 was seized. Chain was also recovered which was seized vide memo Ex.PW1/C. After completing investigation, chargesheet was submitted against the two accused under Sections 356/379/411/34 IPC.

3. In order to substantiate its case, prosecution examined five witnesses. Both the accused pleaded their innocence and alleged false implication in this case.

4. Vide order dated 07.11.2013 accused Amit was acquitted however accused Pawan was convicted for offence under Sections 356, 379 and 411 IPC by the learned Metropolitan Magistrate. Vide order dated 05.09.2014, he was sentenced to undergo simple imprisonment for one year for offence under Section 379 and 411 IPC.

5. Feeling aggrieved, an appeal bearing CA No.36/14 was preferred by the convict Pawan. The appeal was dismissed and the findings of the learned Trial Court in regard to offence under Section 411 IPC were confirmed.

6. This order has been challenged by filing the present revision petition.

7. Learned counsel for the petitioner submits that in the initial complaint made by the complainant she did not give the registration number of the scooter but gave its colour and make as Chetak. However, the scooter which was seized by the police was LML. Moreover, according to complainant, the accused were between the age group of 30 to 35 years however at the time of alleged commission of offence the accused was only 23 years of age. Further, in her complaint, she stated that she can identify accused, however, in her deposition before the Court she could not identify the accused by stating that they were wearing helmet. Except her, there is no other witness to establish the identity of the accused. Moreover, as per the complainant, on the date of incident her niece Shruti was with her but she was not examined by the prosecution. Similarly, it is alleged that at the time of recovery of scooter and the chain her husband was with her but for reasons best known to prosecution even he has not been examined. As regards recovery of chain, it was submitted that there is no special identification mark on the chain and the complainant admitted in her cross-examination that if the chain is mixed with other chains she will not be able to identify the same. No test identification parade of the same was got conducted and as such, it is not established beyond reasonable doubt that the recovered chain belongs to the complainant. He also referred to the contradictions appearing in the testimony of the prosecution witnesses and as such, it is submitted that the learned Trial Court as well as learned Additional Sessions Judge committed grave error in convicting the petitioner and, therefore, the findings deserves to be set aside.

8. On the contrary, although it was conceded by learned Public Prosecutor for the State that in the initial statement made by the complainant, number of the scooter was not given, however, it was submitted that the chain was recovered from the possession of petitioner which was duly identified by the complainant as such, he was rightly convicted under Section 411 IPC. The impugned judgment does not call for any interference as such, revision is liable to be dismissed.

9. As regards the factum of snatching the chain of complainant on 26.04.2005 when she was returning from park, the same stands proved from the testimony of the complainant.

10. The sole question for consideration is whether the petitioner was the perpetrator of this crime. In this regard as stated above, in the initial complaint made by the complainant she had merely stated that two boys came on a two wheeler scooter make Chetak aged about 30 to 35 years and snatched her chain and they managed to escape. She further stated that she can identify them if shown to her. She was examined on 19.05.2007 and deposed that on 26.04.2005 when she was returning from park to her house with her niece Shruti and when she reached at Hanuman Mandir two persons came on a two wheeler scooter and snatched her gold chain which she was wearing. She raised alarm but they managed to run away. She further deposed that in the month of May police called her outside Gopal Mandir where they had apprehended one two wheeler scooter and two persons were standing and police told her that a chain had been recovered from them. She identified the scooter by its number i.e., DL 6SF 1267 as this was the same scooter on which two persons who had snatched her chain had come and ran away after snatching the chain. But she could not identify those persons as they were wearing helmet at the time of incident. She further deposed that she had not seen two persons who were standing with the police as police got only the scooter identified from her. She was recalled for further examination on 30.06.2011 then she deposed that she was taken to Gopal Mandir alongwith her husband by police in search of accused persons. They waited for sometime to see the scooterist. Thereafter one person came near the scooter who was apprehended by the police. She could not say whether the police had seized the chain there where the scooter was standing. She reiterated that she cannot identify the accused who came at the spot due to the lapse of time. In cross-examination, she stated that she gave information regarding incident to the police for the first time through mobile. Thereafter police came to her house at Shastri Nagar between 8.00 am to 9.00 am. Her statement Ex.PW1/A was recorded by the police at police station. Although she deposed that she had given the scooter number in her statement Ex.PW1/A, however, she was confronted with her statement where it was not recorded. She further deposed that after giving statement at police station, she returned back to the house. On the same day, in the evening she again went to police station but could not say what proceedings were conducted by the police at that time. She could not say at what time they went to Gopal Mandir. She admitted that public persons were moving about at Gopal Mandir however police did not ask any public person to witness the investigation in her presence. She admitted that the chain Ex.P-1 if mingled with the chains of same size, colour and shape, it would be difficult to identify. As per her statement, when the incident of snatching took place at that time her niece Shruti was with her. Subsequently, when she was called at Gopal Mandir and one of the accused was apprehended and chain was recovered, her husband was accompanying her however neither her niece Shruti nor her husband were made witnesses. Although a conviction can be based on the solitary testimony of a witness however the evidence of sole eye witness should be cogent, reliable and must necessarily fit into the chain of events, as stated by the prosecution. However, in the instant case, the complainant does not appear to be wholly reliable and, therefore, implicit reliance cannot be placed on her sole testimony. Besides that, at Gopal Mandir public persons were passing but the investigating officer did not bother to join any independent person in the investigation.

11. Then there is testimony of two police officials PW-3 Constable Om Pal and PW-5 SI R.B.Joshi. According to Constable Om Pal, on receipt of DD No.9A, he alongwith SI R.B.Joshi went to house no. B-958, Shastri Nagar where Smt.Pooja Garg and her husband met them. Investigating officer recorded the statement of Smt. Pooja Garg and thereafter proceeded for the spot. At the spot, investigating officer made endorsement and handed over rukka to him for registration of the case. Accordingly, he went to police station and after getting the case registered, came back at the spot. The complainant and her husband were present at the spot. The investigating officer tried to search for accused. On the basis of a secret information, he alongwith investigating officer, complainant and her husband went to Gopal mandir where one scooter bearing No. DL 6SF 1267, LML green colour was standing and complainant identified the said scooter by stating that accused were riding on the same scooter and snatched her chain. Thereafter they hide themselves and waited for the accused. At about 6.00 pm one person came and tried to start the scooter. He was overpowered and his name was revealed as Pawan. On his personal search, one broken chain was recovered which was identified by the complainant and she also identified accused. Thereafter accused was arrested.

12. PW-5 SI R.B.Joshi also deposed regarding recording of statement of the complainant and getting the FIR registered. He further deposed that in the evening a secret information about the scooter parked at Gopal Mandir which was involved in this case was received. Thereafter they reached at Gopal Mandir and saw one scooter bearing No. DL 6SF 1267 parked at the spot and they waited for the scooter owner. At about 6.00 pm, one person came and tried to start the scooter. He was apprehended and his name was disclosed as Pawan. Complainant identified the accused. On cursory search of accused, one broken chain was recovered from right side pocket of his trouser which was identified by the complainant. The same was seized. Accused was arrested. In cross-examination, he admitted that in the statement Ex.PW1/A the complainant did not give the registration number of the scooter. He further admitted that he did not prepare any identification memo of the chain by the complainant.

13. The aforesaid evidence led by the prosecution makes it clear that in the absence of giving the number of the scooter in the initial complaint made by the complainant, merely from the colour of the scooter it is not established beyond reasonable doubt that scooter bearing No. DL 6SF 1267 was used in the commission of crime. Further, so far as identification of the accused being the perpetrator of crime is concerned, although the police officials have deposed that when accused came to start the scooter, he was identified by the complainant but complainant on both occasions categorically deposed that she could not identify those persons as they were wearing helmet at the time of snatching her chain and even at Gopal Mandir she did not identify him. Under the circumstances, the fact that the chain was snatched by the accused is not proved.

14. The only other piece of evidence alleged against the accused is that a chain was recovered on his cursory search which was identified by the complainant. Here again, the complainant does not corroborate their version as she has deposed that in the month of May she was called outside Gopal Mandir where police had apprehended one two wheeler scooter and two persons were standing and police told her that chain had been recovered from them. It has nowhere come in her statement that recovery of chain was effected in her presence or that she identified the chain to be belonging to her. Admittedly, no identification memo was prepared by the investigating officer of the case. Furthermore, if the testimony of complainant is believed that the recovery of chain was not effected from the accused in her presence then it was incumbent upon the investigating officer of the case to have arranged test identification parade of the chain which was not done. In this regard, reliance was placed by the learned counsel for the petitioner on Chatru v. The State 1953 Cri.L.J.708; Shamim Rehmani v. State 1992 JCC 108; Pawan Kumar v. State of Haryana (2003) 11 SCC 241; Gulshan S/o Ahmed Ali v. State 2005 (2) JCC 13 and Manoj Kumar & Anr. v. State 2007 (4) JCC 2785. In all these cases it was observed that identification of the article which has no special identification mark, in the absence of test identification parade is of no avail to the prosecution. The complainant has admitted in her cross-examination that if her chain is mingled with the chains of same size, colour and shape, it would be difficult for her to identify the same. Under the circumstances, it was not proved that the petitioner had snatched the chain belonging to the complainant and probably for that reason although the learned Metropolitan Magistrate had convicted the petitioner for offence under Section 356/379/411 IPC, the learned Additional Sessions Judge convicted him only under Section 411 IPC. However, even this finding of the learned Sessions Judge cannot be sustained keeping in view the fact that primarily the findings of the learned Trial Court has been sustained on the ground of not giving appropriate suggestions to the prosecution witnesses. It is cardinal principle of criminal jurisprudence that burden of proof is squarely on the prosecution to prove its case beyond reasonable doubt and this burden of proof never shift. The prosecution could have taken advantage from the lapses on the part of the accused for not conducting effective cross-examination only if the testimony of the witnesses were totally credible, reliable and trustworthy. As discussed above, the identity of the petitioner being the snatcher of the chain is not established. Although, according to the police officials, the chain was recovered from the accused in the presence of the complainant however, as per the version of the complainant, she was informed by the police that two persons who were apprehended with one two wheeler scooter, chain has been recovered from them. However, testimony of the police officials is confined to accused Pawan only who tried to start the scooter and was apprehended. As regards co-accused Amit is concerned, it is the case of prosecution that subsequently at the instance of accused Pawan he was apprehended, therefore, it is not clear as to who was the second person who was standing alongwith this accused on the two wheeler and from which of the two persons the chain was recovered. Moreover, the factum of chain belonging to the complainant is also not duly established. Under the circumstances, the entire case of the prosecution remained in the realm of suspicion. Suspicion, howsoever grave, cannot take the place of proof. That being so, the petitioner was entitled for benefit of doubt.

15. Accordingly, the revision is allowed and the impugned judgment dated 30.10.2014 passed by learned Additional Sessions Judge is set aside and appellant is acquitted of the offence alleged against him. As per record, the petitioner was granted interim bail vide order dated 17.12.2014 which was being continued thereafter, as such, surety of the petitioner stands discharged.

16. Copy of the judgment alongwith the trial court record be sent back.

(SUNITA GUPTA) JUDGE MARCH 23, 2015 mb