Delhi District Court
3.Title State vs . Rajesh Kumar on 21 July, 2012
THE COURT OF SH. SUNIL KUMAR SHARMA
METROPOLITAN MAGISTRATE :
TIS HAZARI COURTS : DELHI
1.FIR No. 348/92
2.Unique Case ID No. Not alloted.
3.Title State Vs. Rajesh Kumar
3(A).Name of complainant Devki Nandan Joshi, s/o Prem Bhallab
Joshi, r/o 4/256, Kichri Pur, Delhi
3(B).Name of accused 1. Rajesh Kumar @ Khanna s/o Kishore Lal r/o H.no. 129 Gali Kali Ghati Arya Singh Road, Uttam Nagar.
2. Rajender Kumar s/o Girdhari Lal , r/o A48 Peera Garhi (PO).
3. Sanjay Kumar s/o Kishan Lal, Plot no. 2, Nangloi (already convicted)
4.Date of institution of challan 09.02.1994
5.Date of Reserving judgment 20.07.2012
6.Date of pronouncement 21.07.2012
7.Date of commission of 18.06.1992 offence
8.Offence complained of Under Section 392/34/411 IPC
9.Offence charged with Under Section 356 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Accused convicted U/sec 356 IPC FIR NO. 348/92 State Vs Rajesh Kumar Page No. 1 of 18 BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The matrix of the prosecution case in a narrow compass is that on 18.06.1992 at about 05.30 PM at a public lane in front of Babbar Electronics and Rajdhani X ray, 103 Raja Garden within the jurisdiction of PS Moti Nagar accused Rajesh along with co accused Rajinder (since PO) in furtherance of their common intention assaulted and used criminal force against Devki Nandan Joshi and committed theft of titan Quartz Wrist Watch and a purse containing Rs. 1128/ and Rs. 225/ and a cheque of Rs. 645.80, visiting cards etc. of the complainant and thereby committed an offence punishable u/s 356 IPC. The said wrist watch was recovered from the dishonest possession of Sanjay s/o Sh. Kishan Lal who is charged for the commission of offence punishable u/s 411 IPC.
2. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of section 207 cr.p.c and on the basis of record, charge for the offence punishable u/s 356 IPC is framed on 30.11.2000 against accused Rajesh Kumar and accused Rajender Kumar (since PO). The accused Sanjay was charged for the commission of the offence punishable U/sec 411 IPC on 30.11.2000, to which they pleaded not guilty and claimed trial.
3. The prosecution in order to prove its case against the accused persons has examined nine witnesses namely.
FIR NO. 348/92 State Vs Rajesh Kumar Page No. 2 of 18 PW1 Sushil Kumar, PW2 Sh. Devki Nandan, Complainant.
PW3 HC Attar Singh, Investigating witness PW4 Jugal Kishore, Fact witness.
PW5 Sh. R.S. Mahla, Conducted the TIP of the accused persons. PW6 Ct. Ravi Dutt, Investigating witness.
PW7 Sh. K.S. Mohi, conducted the TIP of the case property. PW8 ASI Deewan Singh, Duty Officer.
PW9 Ct. Rajpal, IO.
PW1 Sushil Kumar had deposed that he is in a partnership business and selling medicines with his brother Ravi through his chemist shop under the name and style of 'Sudan Medicos' at property no. 55/1 South Patel Nagar. He used to purchase the medicines from MB Agencies, Raja Garden, the payments are made through cheques, but not aware about the proprietors of the MB Agencies and used to make the payments through cheque to any person who supplies the medicines from the aforesaid agency. Neither the police visited his shop nor he visited the PS for making any statement to the police. The witness had not supported the prosecution case and was declared hostile and has deposed that he cannot say whether the cheque Ex. P1 was handed over by him to the complainant, Devki Nandan Joshi or not.
FIR NO. 348/92 State Vs Rajesh Kumar Page No. 3 of 18 PW2 Sh. Devki Nandan, is the complainant and had deposed that he used to work as sales men with M/s MB Agencies. Approximately 10 years ago when he was coming back to the office of the aforesaid agency accused Rajesh (present in the court, correctly identified by pointing out) approached him with 23 persons and ran away after snatching his watch, 23 cheques drawn in favour of the aforesaid company and collected by him. The witness had stated that he cannot state exactly whether the other accused present in the Court was also with accused Rajesh on the date of incident. He lodged a complaint with police the same is Ex. PW2/A. The witness had correctly identified the case property i.e. Cash of Rs. 1351/, cheque bearing no. 086685, four visiting cards and three papers. The cheque bearing no. 086685 is Ex. P1, the purse is Ex. P2, the currency notes for Rs. 1351/ are Ex. P3, the four visiting cards are collectively Ex. P4 and three miscellaneous papers are Ex. P5.
PW3 HC Attar Singh, Investigating witness had deposed that on 20.06.1992 he was posted at PS Moti Nagar and joined the investigation with IO S.K. Basi and went to the Uttam Nagar terminal from where accused Rajender Kumar was arrested but the said Rajender Kumar is not present today in the Court. The accused were arrested after conducting personal search vide memo Ex. PW3/A. FIR NO. 348/92 State Vs Rajesh Kumar Page No. 4 of 18 PW4 Jugal Kishore, Fact witness had deposed that on 18.06.1992 he was running a shop of General Store next to M/s MB Agencies at 128, Raja Garden and the police came to the spot along with both the accused present in the court today who were working with the aforesaid MB Agencies. The statements of the accused were being recorded by the police and he supplied the five coldrinks (Campa Cola) to them. The police inquired regarding his acquaintance with both the persons to which he gave a affirmative reply. Thereafter he brought back the empty bottles to his shop. This witness was also declared hostile by the prosecution.
PW5 Sh. R.S. Mahla, Conducted the TIP of the accused persons had deposed that on 27.06.1992 an application for conducting the TIP of the accused Rajinder was assigned to him. The TIP of the case was fixed for 26.06.1992 but the same was adjourned for 27.06.1992 on an application of the IO. On 27.06.1992 the accused was produced in a muffled face before him. The accused refused to take part in the TIP proceedings despite warning that such refusal may be read adversely against him. The statement of the accused recorded by him is at point A. His report to this effect is Ex. PW5/A. PW6 Ct. Ravi Dutt, Inve stigating witness deposed that on 20.06.1992 he was posted at PS Moti Nagar and joined the investigation with FIR NO. 348/92 State Vs Rajesh Kumar Page No. 5 of 18 SI S.K. Bhasin. Accused Rajender was in the police custody. He told that on 18.06.1992, he along with co accused Rajesh Kumar had snatched one watch, one purse and Rs. 1,350/ from one person and can got recovered the watch and other articles which were in possession of co accused. The disclosure statement of accused was recorded as Ex. PW6/A and he took us to New Haryana Medicos, Nangloi, where one person Sanjay met and from his possession one watch Titan was recovered, with golden colour chain which was taken into possession and sealed with the seal of SS. Seal after use was given to him. The seizure memo and pointing out memo is Ex. PW6/B. The accused Sanjay was caught and arrested with personal search memo Ex. PW6/C. All the memos bears his signatures.
The witness had correctly identified the wrist watch produced by superdar Devki Nandan shown to the witness and witness identify the wrist watch make Titan Quartz Ex. P6 being the same recovered from the possession of the accused Sanjay present in the court today (correctly identified).
PW7 Sh. K.S. Mohi, conducted the TIP of the case property deposed that on 06.07.2005 one sealed envelope of his seal KSM is opened and found containing the TIP proceeding of the case property regarding the present case. On 05.09.1992 an application was marked to him by Ld. Link MM for the TIP of watch vide Ex. PW7/A. He fixed the date for conducting FIR NO. 348/92 State Vs Rajesh Kumar Page No. 6 of 18 TIP of the case property on 20.10.1992. SI S.K. Bassi produced six other golden wrist watch for mixing with case property. The IO also produced one pulanda with the seal of SS and identified the witness Sh. D.N. Joshi. The TIP was conducted in his chamber after mixing the case property with other similar watches brought by the IO. The witness D.N. Joshi was called inside the chamber for identifying the case property. The witness identified the wrist watch lying at Sr. No. 3. The TIP proceedings Ex. PW7/B. Certificate thereof Ex. PW7/C. The IO moved an application for supplying the copy of the TIP proceeding and sealing of case property. The same was allowed vide application Ex. PW7/D. PW8 ASI Deewan Singh, Duty Officer has proved the carbon copy of FIR Ex.PW8/A (OSR) and has deposed that on 18.06.1992, the present FIR was registered by him on the receipt of a rukka sent by SI Surender Kumar Bassi brought by Const. Rajpal. The witness has also deposed that he also made the endorsement on the rukka Ex. PW8/B. PW9 Ct. Rajpal, Investigating witness has deposed that on 18.06.1992 he was posted at PS Moti Nagar. He along with Surender Kumar Bassi were on patrolling duty at Raja Garden. At time, the complainant Devki Nandan Joshi met them and gave his statement to the IO Ex. PW2/A. IO made endorsement and handed over the same to him for registration of FIR NO. 348/92 State Vs Rajesh Kumar Page No. 7 of 18 FIR. He went to the PS and came back with the FIR and original rukka and presented the same to the IO for investigation. He joined the investigation at Raja Garden Chowk, Babbar Electronics, one accused Rajesh, present in the court was caught and arrested vide personal search memo Ex. PW9/A. Accused made disclosure statement Ex. PW9/B. On the basis of the statement certain articles were recovered from the possession of accused which were seized vide seizure memo Ex. PW9/C. The articles were brown colour purse and one cheque of MB Agency was recovered from accused and the accused also confessed that a watch is with his uncle/chacha and he can got recovered the same from him.
The witness had correctly identified the wrist watch produced by superdar Devki Nandan shown to the witness and witness identify the wrist watch make Titan Quartz Ex. P6 being the same recovered from the possession of the accused Sanjay present in the court today (correctly identified).
4. No other PW was examined. PE was closed. Accused was examined u/s 313 cr.p.c. wherein accused deposed that he is innocent and has been falsely and wrongly implicated in this case. However, he denied to lead any evidence in defence.
5. I have heard the Ld. APP for the state, Ld. counsel for the accused person and perused the entire material available on record. It is FIR NO. 348/92 State Vs Rajesh Kumar Page No. 8 of 18 pertinent to mention here that initially the charge sheet was filed against three accused namely Rajesh Kumar, Sanjay and Rajender Singh. A charge for the commission of the offence punishable u/s 356 IPC was framed on 30.11.2000 against accused Rajesh and Rajender Singh (since PO) and the accused Sanjay was charged for the commission of the offence punishable u/s 411 IPC. Accused Rajender did not join the proceedings and was declared PO on 15.03.1999. The accused Sanjay was convicted on 08.06.2011 by the Ld. Plea Bargaining Judge Ms Charu Aggarwal as the accused had submitted plea bargaining application under Chapter 21A Cr.P.C. The accused Rajesh Kumar had contested the present case and the Court is required to analyze the material on record for finding out the guilt or innocence of the accused Rajesh only.
6. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under: " In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
FIR NO. 348/92 State Vs Rajesh Kumar Page No. 9 of 18
7. The case of the prosecution against the accused Rajesh is that the accused assaulted and used the criminal force against the complainant in an attempt to commit the theft of the property being carried by the complainant which is punishable u/s 356 IPC and for proving the same the prosecution was under an obligation to prove beyond reasonable doubt
1. That the complainant was carrying the property at the time of the incident.
2. That the accused used the criminal force against the complainant in an attempt to commit the theft of the same.
8. Now by applying the aforesaid legal propositions of law to the factual matrix of the present case, let us see as to what extent the prosecution has been able to prove its case against accused persons.
9. Ld. Counsel for the accused Rajesh submits that the accused is falsely implicated in the present case as there are lots of discrepancies in the prosecution case against the accused as the charge framed against the accused shows that a total sum of Rs. 1,353/ was taken from the possession of the complainant which is in contradiction to the prosecution case and the statement of the complainant in which it is stated that a sum of Rs. 1,351/ was taken by the accused from the complainant. The testimony of the complainant who is the star witness of the prosecution is full with discrepancies and contradictions as he has failed to state the exact place of FIR NO. 348/92 State Vs Rajesh Kumar Page No. 10 of 18 meeting with the police officials regarding the present case. Apart from this the complainant has failed to provide the description of the alleged visiting cards and the miscellaneous papers etc. Further the complainant is not aware whether his signatures were obtained by the police on any papers or not despite the allegation that the entire proceedings were conducted in his presence. One cannot understand why the documents prepared by the IO in the course of the investigation are not signed by the complainant when the proceedings are allegedly conducted in the presence of the complainant.
10. In the light of the aforesaid arguments of the defence the testimony of PW2 i.e. the victim in the present case still inspires confidence to the extent that he was having in his possession some cheques, purse, money and a wrist watch. The witness had correctly identified all the aforesaid articles as Ex. P1 to P5 in the judicial TIP Ex.PW7/A conducted on 20.10.1992 by the PW7 Sh. K.S. Mohi, the then Ld. MM and the same leaves no scope for any doubt regarding the identification of the aforesaid articles by the PW2, victim and the complainant in the present case. He had also identified accused Rajesh categorically as the person who had snatched his watch and purse etc. The contention of Ld. Counsel for the accused regarding the difference of money as stated in the complaint and as shown to the witness during the trial is not sufficient for impeaching the credit of the witness and casting the doubt over the testimony of PW2. It is correct that a FIR NO. 348/92 State Vs Rajesh Kumar Page No. 11 of 18 sum of Rs. 1,353/ were mentioned to have been taken away, from the complainant, in the statement of the complainant before the police which was recorded u/s 154 Cr.P.C. and the same is mentioned in the charge framed against the accused on 30.10.2011. But the bare perusal of the record shows that the prosecution case itself is that out of the stolen money Rs. 1,353/ a sum of Rs. 1,351/ were recovered from the possession of the accused. Eventually, this amount of Rs. 1,351/ was produced by MHC(M) at the time of the recording of the statement of PW2 hence the contention as raised on behalf of the accused, about the contradiction in the amount is illusionary and without any basis. It has further been contended on behalf of the accused person that PW2 in his cross examination has not been able to state the exact total amount of cash possessed by him at the time of the incident nor the details of the visiting cards were explained by the complainant. The aforesaid inability of the witness in narrating the aforesaid detail is hard for impeaching the creditworthiness of the witness and the same is not sufficient to say that the witness is not trustworthy particularly in view of the fact that the incident took place on 18.06.1992 and the witness was examined and cross examined on 23.02.2003 and 18.04.2011 in the Court after a lapse of approximately more than 10 years and 7 ½ years. In addition to the aforesaid testimony of PW1 namely Sushil Kumar squarely establish that his firm namely M/s Sudan Medicos used to purchase medicine from MB FIR NO. 348/92 State Vs Rajesh Kumar Page No. 12 of 18 Agencies i.e. the employer of the complainant and the payment used to be made through cheques against the purchased medicines. Therefore, the possession of cheque bearing no. 086685 Ex. P1 with the complainant at the time of incident is established which further corroborates the testimony of PW2. The other contention raised on behalf of the accused regarding the false implication owing to previous dispute pending between them in relation with some committee (chit fund) also does not inspires confidence for the reason that no material has been brought on record on behalf of the accused to this effect except for the suggestions put to PW2 during his cross examination. Moreover, testimony of PW2 also shows that the complainant had not made the false allegations against the accused due to some grudge or revenge against him.
11. Moreover, the case of the prosecution against the accused is that the accused assaulted and used the criminal force against the complainant in an attempt to commit the theft of the property being carried out by the complainant which is punishable u/s 356 IPC and for proving the same the prosecution was under an obligation to prove beyond reasonable doubt
1. That the complainant was carrying the property at the time of the incident.
2. That the accused used the criminal force against the complainant in an attempt to commit the theft of the same.
FIR NO. 348/92 State Vs Rajesh Kumar Page No. 13 of 18
12. In the present case the parties are admittedly known to each other prior to the date of the incident and the employment of the complainant and accused with M/s MB Agencies is not disputed on behalf of the accused. The testimony of PW2 the complainant Devki Nandan has clearly established that he was possessing the aforesaid cash amount, a watch and aforesaid cheque along with some miscellaneous papers and the same are taken away by the accused Rajesh and Rajender (since PO in furtherance of their common intention on 18.06.1992 at about 05.30 PM) by using the criminal force against the complainant. The remaining discrepancies regarding the non signing of the papers prepared by the IO in the course of the investigation relates to the manner in which the case is investigated and pertains to the stage of post commission of the offence. The Hon'ble Supreme Court of India in the catena of judgments had laid down that the error in conducting the investigation can never be the ground for the acquittal for the accused. The testimony and deposition of the victim PW2 Devki Nandan is also corroborated by the remaining prosecution witnesses which also lends credence to the prosecution case. In the light of the aforesaid findings although their are minor discrepancies in the testimony of PW2 the complainant, against accused Rajesh regarding commission of offence u/s 356 IPC is reasonably reliable as the same is also corroborated by the remaining prosecution witnesses.
FIR NO. 348/92 State Vs Rajesh Kumar Page No. 14 of 18
13. While observing so I place reliance upon the observations and law laid down by Hon'ble Supreme Court of India in Sukhdev Yadav & Others Vs. State of Bihar (2001) 8SCC 86 wherein it has been held 'Once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. When the witnesses are examined after a long gap minor contradictions omissions and discrepancies are bound to occur in the testimony of witnesses'. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirely. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. (1999) 8 SCC 649, it was also observed that when an eye witness is examined at length it is quite possible FIR NO. 348/92 State Vs Rajesh Kumar Page No. 15 of 18 for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross examination. Merely because there is inconsistency in evidence it is not sufficient to impair/impeach the credit of the witness.
14. It is true that section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the Section would indicate that mere inconsistent statements are not sufficient to impeach the credit of the witness.
15. It is also settled law that the court has to see the quality of the evidence and not quantity. Similarly when the witnesses are examined in the court after a long gap minor contradictions, omissions and discrepancies FIR NO. 348/92 State Vs Rajesh Kumar Page No. 16 of 18 are bound to occur in the testimony of the witness. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or an exaggeration, embroideries or embellishments. Merely because in one respect it is unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects also.
16. So far as the recovery of stolen articles from the accused Sanjay. It is pertinent to mention here that Sanjay has been already convicted under the scheme of plea bargaining laid down under Chapter XXIA Cr.P.C. The fact about the conviction of Sanjay cannot be considered here in any manner in the spirit of the statutory provisions.
17. In view of the wellsettled law discussed above, there is no reason to disbelieve the testimony of PW2, the complainant and the other witnesses of investigation examined during the trial despite the hostility of PW1 and PW4 to the prosecution case. It is pertinent to mention here that the witness have been able to identify the accused Rajesh to be the one who used the criminal force against the complainant in attempting to commit the theft of the case property Ex. P1 to P5 which is also duly identified by the prosecution witnesses.
18. Thus, on the basis of the aforesaid findings, I am of the FIR NO. 348/92 State Vs Rajesh Kumar Page No. 17 of 18 considered view that the prosecution has been successful in proving its case beyond all reasonable doubts to the effect that on 18.06.1992 at about 05:30 PM opposite Babar Electronics, Raja Garden, accused Rajesh along with Rajender Kumar (since PO) in furtherance of their common intention had used the criminal force against complainant Devki Nandan and taken away his wrist watch and purse containing Rs. 1,353/ and one cheque amounting to Rs. 645.80 along with some miscellenous papers.
19. Accordingly, the accused Rajesh is convicted of offence punishable under Section 356 IPC.
20. Be heard separately on the point of sentence.
Announced in the (Sunil Kumar Sharma)
Open Court on 21.07.2012 Metropolitan Magistrate
THC,Delhi
It is certified that this judgment contains 18 (eighteen) pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate THC,Delhi FIR NO. 348/92 State Vs Rajesh Kumar Page No. 18 of 18