Delhi District Court
3.Title State vs . Naved on 16 August, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 479/2010, PS Bhajanpura
2.Unique Case no. 460609/2015
3.Title State Vs. Naved
3(A).Name of complainant Sh. Santosh Gupta
W/o Sh. Kihsan Das Gupta
R/o H. No. C202,Gali no. 9, Bhajanpura
A Delhi 110053.
3(B).Name of accused Sh. Naved
S/o Babu
R/o H. No. Alvi Nagar Loni, Ghaziabad,
UP.
4.Date of institution of challan 03.01.2011
5.Date of Reserving judgment 10.08.2023
6.Date of pronouncement 16.08.2023
7.Date of commission of offence 29.09.2010
8.Offence complained of U/s 392/411 IPC
9.Offence charged with Accused U/s 392/411 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Convicted u/s 379/356/411 IPC
12. Date of receiving of judicial 03.01.2011
file in this court
Argued by : 1. Amit, Ld. APP for the State.
2. Ms Asha, Counsel for accused person
JUDGMENT
1. The present prosecution case was put into action with the complaint Ms. Santosh Gupta stating that on 29.09.10 at C7/65, Gali No.7, Bhajanpura, at about 3.15 pm one person came from behind, hit her neck and snatched the State Vs. Naved Page 1 of 14 FIR No. : 479/2010 gold chain. But the person was caught hold by her husband and some public persons after chasing and gold chain recovered from him. On this basis, the present FIR was registered U/s 392/411 IPC. After completion of investigation, chargesheet was filed U/s 392/411 IPC.
2. On 03.01.2011, accused person was summoned and supplied the copy of chargesheet. On 12.10.2010, accused was charged with offences punishable u/s 392/411 IPC. Accused person pleaded not guilty and claimed trial. Matter was then fixed for prosecution evidence. Prosecution examined 6 witnesses.
3. PW1 is Smt. Santosh Gupta. She deposed that on 26.09.2010 she alongwith her husband at about 03.15 p.m. was going to her house from Bhajanpura Bus Stand. When they reached in a small street (street no. 7), suddenly one person came from behind and hit her neck by his hand and caught the gold chain which she was wearing. That person pushed her due to which she fell down on road. That person snatched her chain and tried to run away with chain. However, she raised alarm and that person was caught hold by her husband and some public persons after chasing him. She deposed that her gold chain was recovered from him. Her husband called at 100 number and Police officials came at the spot. She stated that she came to know afterwords that the said person's name as Naved (She correctly identified the accused) She stated that person and her recovered gold chain was produced to the police and her statement was recorded by police which is Ex. PW1/A. Police official seized the recovered chain afer sealing the same with the seal of VK vide seizure memo Ex. PW1/B. She stated that IO prepared the site plan Ex.PW1/C at her instance. She further deposed that the accused was arrested and personally searched vide memos Ex. PW1/D and Ex. PW1/E respectively. She State Vs. Naved Page 2 of 14 FIR No. : 479/2010 correctly identified the case property i.e. gold chain which is Ex. P1. She was not cross examined by the accused despite opportunity being given.
4. Sh. Kishan Das Gupta was examined as PW 2. He deposed that on 26.09.2010 he alongwith his wife at about 03.15 p.m. was going to his house from Bhajanpura Bus Stand. When they reached in a small street (street no. 7), suddenly one person came from behind, hit his wife's neck from back and caught hold of her gold chain. That person pushed his wife due to which she fell down on road. That person snatched his wife's chain and tried to run away with chain but they raised alarm. That person was caught hold of by him and some public persons after chasing him. His wife's gold chain was recovered from him. Police officials came at the spot after calling at 100. They produced that person whose name afterwords they came to know as Naved (He correctly identified the accused) and his wife's recovered gold chain to the police. His wife's statement was recorded by police. He stated that Police official seized the recovered chain afer sealing the same with the seal of VK vide seizure memo Ex. PW1/B. Police official prepared the site plan Ex.PW1/C at the instance of his wife. Accused was then sent to the hospital for medical examination a public persons gave beatings to him. Police officials returned back with the accused from the hospital.The accused was arrested and personally searched vide memos Ex. PW1/D and Ex. PW1/E respectively. He correctly identified the case property i.e. gold chain which is Ex. P1. He was not cross examined by the accused despite opportunity being given.
5. Retired SI Shri Ram was examined as PW 3. He was the Duty Officer in the present matter. He brought the order dt. 05.08.2022 regarding destruction of old record of PS Bhajanpura vide file No. 24452 State Vs. Naved Page 3 of 14 FIR No. : 479/2010 24551/HAR/NED dt. 05.08.2022 which is Mark Y collectively. He also brought the copy of FIR alongwith him which is Ex. PW3/A. He further deposed that rukka was handed over to him by Ct. Pradeep and was sent by SI Vinay Kumar for registration of FIR. After registration of the same,he handed over the original rukka and copy of FIR to Ct . Pradeep. He was cross examined by Ms. Asha Kumari wherein he stated that his duty hours were from 04.00 p.m. to 12.00 midnight on that day. He admitted that the FIR was not registered by him but stated that it was registered in his presence by Constable in the PS. He conceded that he did not know the name of that constable who has registered the FIR in computer. He stated that Ct. Pradeep came to him at about 05.15 alongwith rukka for registration of FIR. He did not remember how much time, he took for registration of FIR. He also did not remember at what time, he returned back the original rukka alongwith copy of FIR to Ct. Pradeep.
6. Sh. ASI Amarjeet was examined as PW 4. He deposed that on 26.09.2010 he was posted in PS Bhajanpura as a Constable. He stated that on receiving information he reached at C7/65 and saw that SI Vinay Kumar had caught hold of accused Naved. Thereafter IO had directed him to take the accused to GTB hospital for his medical examination. He then took accused to hospital for his medical examination. Thereafter, he alongwith accused came back to the spot after the hospital. Thereafter IO had arrested accused in his presence vide arrest memo which is already Ex. PW1/D. Ct. Pradeep had personally searched the accused which is Ex. PW1/E. Thereafter,they call came to the PS alongwith the accused and Ct. Pradeep and IO had deposited the case property in the malkhana. (Accused was correctly identified by the PW 4.) In his cross examination, he deposed that his duty hours were from State Vs. Naved Page 4 of 14 FIR No. : 479/2010 08.00 a.m. to 10.00 p.m., but there was no fixed timings to leave his duty hours. He stated that he had received the information at about 04.00 p.m. telephonically through Duty Officer. He admitted that he did not know the name and phone number of duty officer. He conceded that he did not note down the information received telephonically in writing in his daily dairy. He stated that at that time, he was patrolling at Yamuna Vihar area and reached at the spot at about 04.10 p.m. by private vehicle. He admitted that the spot is a crowded area. Public persons had gathered at the spot. He did not know whether IO had recorded the statement of public persons or not. He stated that at about 04.25 p.m., he left the spot alongwith accused to GTB Hospital in Auto. He did not know the registration number of Auto and name and details of the Auto Driver. He reached at the GTB hospital within 15 minutes. He stated that they remained at GTB hospital for 510 minutes. After that they came back to the spot. He did not know what medical treatment was given to the accused at GTB Hospital. He conceded that they had not offered their search to the accused before taking his personal search. He also did not know the name of doctor of emergency ward. He denied that he has not joined any investigation as he cannot tell the name of the doctor and the name of the auto driver.
7. ASI Yashvir Sigh was examined as PW 5. He brought the original register no. 19 and stated that vide mud no. 3291/10 which is Ex. PW5/A (OSR) case property in the present case got deposited in the malkhana. The case property was in sealed condition and it was kept inside the match box and sealed with the seal of VK vide seizure memo which is already Ex. PW1/B. In his cross examination, he admitted that he did not know what was inside the pullanda. He stated that the seal was deposited in the malkhana but he did not State Vs. Naved Page 5 of 14 FIR No. : 479/2010 prepare any deposit memo regarding the same.
8. Inspector Vinay Kumar was examined as PW 6. He is the IO of the case. He deposed that on 26.09.2010 he was posted at PS Bhajanpura as a SI. On that day, he received a DD entry no. 19 A. Thereafter, he alongwith Ct. Pradeep reached at the spot i.e. C7/65, Gali no. 7, Bhajanpura Delhi and met with the complainant Santosh Gupta. He further deposed that she was standing alongwith her husband and she had apprehended one person. She told him about the entire incident regarding snatching of gold chain and she also told the name of the person as Naved that she had apprehended. Public persons had gathered at the spot and they had given severe beatings to the accused. He then called Ct. Amarjeet and sent the accused to GTB Hospital for his treatment. Thereafter, the complainant had given her statement which is Ex. PW1/A. Thereafter, she handed over to him the gold chain. He then prepared the pullanda of the gold chain by keeping it in empty box and wrapped it with white cloth and sealed it with seal of VK. Thereafter, he prepared seizure memo of the gold chain which is Ex. PW1/B. He then prepared the tehrir in his own handwriting from point C to D which Ex. PW6/A. He handed over the same to Ct. Pradeep for registration of the case. Thereafter, he had prepared the site plan at the instance of the complaint which is Ex. PW1/C. Ct. Pradeep reached at the spot alongwith original tehrir and copy of FIR and handed over the same to him. Thereafter, Ct. Amarjeet reached at the spot alongwith accused to the spot after his treatment. He then interrogated accused and arrested the accused vide arrest memo which is Ex PW1/D. He had also personally searched the accused vide personal search memo which is already Ex. PW1/E. He also recorded disclosure statement of accused which is Ex. PW6/B. Thereafter, they all came to the PS and he deposited the case property in the malkhana and put the accused in the lock up.
State Vs. Naved Page 6 of 14 FIR No. : 479/2010
9. Thereafter, he had recorded supplementary statement under Section 161 Cr. PC of complainant and further statement of all the witnesses. Thereafter, he had prepared the chargesheet and filed before the Hon'ble Court. (Accused was correctly identified by the PW6). In his cross examination, he deposed that he received the DD no. 19 A at about 03.30 p.m. He did not make any specific entry on his own. He stated that he left the PS at about 03.35 p.m. He did not made any specific departure entry in respect of the same in rojnamacha. He admitted that the spot is a densely populated area. CCTV cameras were not installed at that time. He admitted that when he reached he found that 10 to 15 public persons were standing at the spot. He conceded that he did not note down the name and addresses of those public persons for the investigation of the present case. He conceded that he also did not give any notice or took any legal action against those public persons. He admitted that the abovesaid chain has not been recovered from the possession of the accused in his presence. He stated the said chain was in the possession of the complainant at that time. He admitted that he did not ask for the bill of the chain from the complainant regarding the ownership of the chain in his entire investigation of the case. He stated that he sent the accused to the GTB hospital at about 04.00 p.m He stated that he handed over the tehrir and seal after use to Ct. Pradeep. He admitted that he had not prepared any handing over memo regarding handing over the seal to Ct. Pradeep. Ct. Pradeep came back to the spot alongwith copy of FIR at about 06.00 p.m. He conceded that Ct. Pradeep has not gave him any deposit slip of the deposition of the seal at malkhana. He conceded that he did not know when he got his seal back. He admitted that he had not offered his personal search to the accused prior to searching him. He denied that he had not properly investigated the present case and that is why he had not made any public person as witness of the case and not collected any document regarding State Vs. Naved Page 7 of 14 FIR No. : 479/2010 the ownership of the chain from the complainant.
10. Thereafter, the state closed the prosecution evidence. Statement of accused person under section 281 Cr.P.C. r/w 313 Cr.P.C. was recorded on 19.07.2023. wherein he denied all the allegations against him
11. Matter was then fixed for final arguments. Final arguments were addressed by Sh. Amit Ld. APP for the State and Ms Asha, Ld LAC for accused. The ld. APP for State argued that the testimony of the witnesses are consistent and corroborated each other and thus proved guilt of the accused persons beyond reasonable doubt. Per contra, the counsel for the accused persons argued that the prosecution has failed to discharge its burden and allegations against the accused persons cannot be sustained.
12. However before proceeding to the merits of the case, I wish to refer to the relevant provisions of law.
378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
379 IPC Punishment for theft.--Whoever commits theft shall be pun ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
356 IPC. Assault or criminal force in attempt to commit theft of property carried by a person.--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 two years, or with fine, or with both.
State Vs. Naved Page 8 of 14 FIR No. : 479/2010 390 IPC Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted 392 IPC Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
410 IPC Stolen property.--Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
411 IPC: Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
State Vs. Naved Page 9 of 14 FIR No. : 479/2010
13. In the light of aforementioned provisions, I proceed to consider the testimony of PW 1 and PW 2. Both of them have categorically deposed that on the night of 26.09.2010 at around 03.15 p.m., while they were going from their house to Bhajanpura Bus Stand and when they reached gali no. 7, suddenly one person came from behind and hit the neck of PW 1 and removed the gold chain which PW 1 was wearing from her neck. The said person thereafter pushed PW 1 and tried to run away from the spot. However, the said person was caught by PW 2 whose name afterwards they came to know as Naved. Both PW 1 and PW 2 correctly identified the accused Naved present in the court as the one who removed the gold chain from the neck of PW 1. Further, both the them categorically deposed that the gold chain was recovered from the possession of accused Naved. Both of them correctly identified the case property i.e. Ex. P1. Despite opportunity, both of them were not cross examined. There was no delay in lodging of complaint as well and at 04.55 p.m., on 26.09.2010, the intimation was received at the PS. Both PW 1 and PW 2 have been consistent in their testimony which is cogent and supported by the documents on record. PW 6/IO has deposed that vide DD no. 19 A dt. 26.09.2010, PS Bhajanpura intimation of incident was received and investigation was marked to him. Thereafter, he went to the spot and recorded the statement of the victim Ex. PW1/A. PW 6 corroborated that on reaching the spot i.e. C7/65, Gali no. 7, Bhajanpura, he found that PW 1 and PW 2 had apprehended one person i.e. accused Naved and stated that the said person had snatched gold chain but he was apprehended and the said gold chain was recovered from him. Further, mud entry no. 3291/10, Ex. PW5/A also corroborates the version of PW 1 and PW 2 that the case property was seized vide seizure memo Ex. PW1/B and deposited in the malkhana. Testimony of PW1 & PW2 is duly corroborated by State Vs. Naved Page 10 of 14 FIR No. : 479/2010 PW4 & PW6. Nothing inimical has been elicited in the cross examination of the prosecution witnesses to show that the complainant or the police officials were inimical to the accused or had a motive to falsely implicate him. As held by the Supreme Court in the decision reported as "Karamjeet Singh Vs. State of Punjab (2009), 7SCC 178", testimony of the witnesses cannot be discarded merely because they are police officials.
14. It is trite to state that testimony of witness should viewed from broad angles. It should not be weight in golden scales but with cogent standards. In a particular case, an eyewitness may be able to narrate the incident with all details without mistake, if occurrence, had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity in absorption and retention is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone (Reference is had to decision of Supreme Court in Abdul Sayeed Vs. State of M. P. (2010) 10 SCC 299). Testimony of PW1 and PW2 is consistent on the factum of accused Naved holding the neck of PW1 and removing the gold chain from the neck of PW1. Even otherwise, testimony of the injured witness/victim stands on a higher pedestal than the other witness. His presence cannot be doubted on the spot. Further, it is very unlikely that he will spare the actual assailant in order to falsely implicate someone else. Where a witness to the occurrence has himself been injured, the testimony of such a witness is generally considered to be very reliable as it comes with the built in guarantee of his presence at the scene of crime. Reference is had to the decision of Hon'ble Apex Court in "Abdul Sayed Vs. State Vs. Naved Page 11 of 14 FIR No. : 479/2010 State of MP (2010) 10 SCC 259". Hence, convincing evidence is required to discredit the testimony of injured witness.
15. In the present case, PW 1 is a direct witness of incident. Her testimony is consistent and corroborated by testimony of PW 2. There is no contrary statement. Further, no inconsistencies or even exaggerations in his testimony has been brought out in the cross examination. Hon'ble Apex Court in Nankaunoo VS. State of UP (2016) 3 SCC 317 in three Judge bench decision has held that where witnesses give consistent version of the incident, then the consistent testimony of the witnesses should be held credible. Hence, in view of consistent testimony of PW 1 and PW 2, I find that prosecution has successfully discharged its burden. All the circumstances point to the hypothesis of the accused forcefully removing gold chain Ex. P1 from the neck of the complainant/PW 1 on 26.09.2010 at C7/65, Gali no. 7, Bhajanpura and subsequent recovery of the abovesaid gold chain from his possession by PW 2. No suggestion was put to the PW 1 and PW 2 that the case property recovered from the accused was not of the complainant. Moreover, it was the accused himself who could have explained the circumstances surrounding the recovery of gold chain either by leading the defence evidence or through cross examination. Section 106 of Indian Evidence Act provides that whenever any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. But nothing has been brought on record in the present matter. Intention of the accused as inferred from the circumstance of him carrying goods of the complainant without her consent show dishonest intention to cause wrongful loss to the complainant by removing the goods from his possession. Since, no explanation or evidence has been led in this regard, therefore adverse presumption is drawn against the accused under State Vs. Naved Page 12 of 14 FIR No. : 479/2010 Section 114 (g) Indian Evidence Act that he had knowledge or at least reasons to believe the goods in question to be stolen property. Even though accused was not able to leave the spot with the gold chain of PW1, moving of property from possession of complainant is sufficient to constitute theft. (Reference is had to the decision of the Supreme Court in case titled as Pyare Lal Bhargava Vs. State of Raj, AIR 1963 SC 1094).
16. The concomitant of the aforesaid discussion is that the prosecution has successfully proved that accused removed gold chain belonging to PW1 from her possession with an intention to cause wrongful loss to PW1 without her consent. Hence, ingredients of theft under section 378 IPC stand proved. However both PW1 and PW2 have not deposed that in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, accused for that end, voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. No MLC of PW1 has been filed. But removal of gold chain by putting the hand on the neck of complainant without her consent amounts to use of criminal force on PW1, in attempting to commit theft of gold chain which PW1 was then wearing. Hence, ingredients of offence under section 356 IPC stand proved. Lastly, testimony of both PW1 and PW2 clearly shows that gold chain i.e. stolen property was recovered from Naved after he attempted to flee the spot on snatching the gold chain. Convincing evidence is required to discredit the testimony of witness who has actually suffered at the hand of accused. The testimony of such a witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant in order to falsely implicate someone else.
State Vs. Naved Page 13 of 14 FIR No. : 479/2010 Hence, ingredients of offence under section 411 IPC stand proved. In view of the aforesaid discussion and findings, accused Naved is convicted for the offences punishable under section 379 IPC, 356 IPC and 411 IPC. Matter be listed for arguments on sentence. Previous conviction report, if any, be summoned through IO concerned. Copy of judgment be provided free of cost Digitally signed to the accused. RUPINDER by RUPINDER SINGH SINGH DHIMAN Date: 2023.08.16 DHIMAN 15:20:17 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 16.08.2023 Metropolitan Magistrate01 KKD Courts, Delhi 16.08.2023 It is certified that this judgment contains 14 (Fourteen) pages and each page Digitally signed bears my signature. RUPINDER by RUPINDER SINGH SINGH DHIMAN Date: 2023.08.16 DHIMAN 15:20:26 +0530 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate01 NE/KKD Courts, Delhi State Vs. Naved Page 14 of 14 FIR No. : 479/2010