Delhi District Court
State vs . Kamal Singh on 1 March, 2017
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. KAMAL SINGH
FIR No. 261/13
PS: MOTI NAGAR
U/S: 379/34 IPC
JUDGMENT
Sr. no. of the case : 18/2/14
Case ID no. : 68359/16
Date of commission of offence : 22.07.2013
Date of institution of the case : 06.01.2014
Name of the complainant : Sh. Japleen Singh
Name of accused and address : Kamal Singh, s/o Sh. Attar
Singh r/o H.no. 38, Block
H-1, Sultan Puri, New
Delhi.
Offence complained of or proved : U/s 379/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date reserved for judgment : 21.02.2017
Date of judgment : 01.03.2017
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS:
1. Brief facts of the case are that on 22.07.2013 complainant Sh.
Japleen Singh boarded a bus on route no. 108 from Inderlok bus stand for going to Hari Nagar. When the bus reached near Zakhira bus stand, complainant was taking ticket, in the meantime 3-4 persons who were standing nearby started pushing him (dhaka muki). One of them opened the chain of his bag, which he was holding on his shoulder, and taken FIR No. 261/13, PS Moti Nagar Page 1/10 out the laptop of HP company and pass on the same to his accomplice. Thereafter three of them deboarded the bus and fled away, however, accused Kamal Singh was apprehended with the help of public when he was also trying to deboard. Complainant made a call at 100 number. Accordingly, after the investigation police filed the present charge sheet against the accused.
2. Charge sheet was filed against the accused in the Court.
Documents were supplied to the accused and thereafter charge under Section 379/34 IPC was framed against him to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses:-
4. PW1 Sh. Japleen Singh stated that on 22.07.2013 he boarded a bus on route no. 108 from Inderlok bus stand for going to Hari Nagar. It is stated that when the bus reached near Jakhira bus stand, he was taking ticket, in the meantime 3-4 persons who were standing nearby started pushing him (dhaka muki). It is stated that one of them opened the chain of his bag, which he was holding on his shoulder, and taken out the laptop of HP company and pass on the same to his accomplice. It is stated that three of them deboarded the bus and fled away, however, present accused Kamal Singh was apprehended with the help of public when he was trying to deboard. This witness correctly identified accused Kamal Singh. It is stated that he made a call on 100 number. It is stated that accused Kamal Singh had handed over the laptop to his accomplice, however, laptop bag was recovered from accused Kamal Singh. It is stated that public persons gave beatings to accused Kamal Singh. It is stated that his statement Ex. PW1/A was recorded. It is stated that the bag was taken into possession vide seizure memo Ex. PW1/B. It is stated that police prepared the site plan, which is Mark A. It is stated that accused Kamal Singh was arrested and personally searched vide arrest memo and personal search memo FIR No. 261/13, PS Moti Nagar Page 2/10 Ex. PW1/C and PW1/D. This witness correctly identified the case property i.e. laptop bag, the same is Ex.P-1. In his cross examination it is stated by him that the incident had taken in the noon i.e. around 12-01 noon. It is stated that within 10-15 minutes of making call at 100 number police reached the spot and took him and the accused to the police station in a PCR van. It is stated by him that when he was taking the ticket one of the assailant open the chain of his bag and pass on the laptop to another within a second he found that his laptop has been stolen from the bag, he also found that the laptop bag was in the hand of accused Kamal Singh. It is stated by him that his statement was recorded at the police station. It is stated that all the documents were prepared by the IO in the police station. It is stated by him that he remained in the police station till 07.00 PM. He denied the suggestion that the accused has been falsely implicated in the present case.
5. PW2 HC Manoj Kumar was the MHC(M) on 22.07.2013, who exhibited on record the relevant entry in register no.19 at serial no.2837/13 as Ex.PW2/A vide which the case property i.e. one black colour raxin bag of laptop was deposited in the Malkhana.
6. PW3 Ct. Gurdaver stated that on 22.07.2013 he joined the investigation of the present case and had taken the accused to Acharya Bhikshu Hospital for medical examination. From there he returned to the spot and handed over the medical documents to the IO. It is stated that accused Kamal Singh was arrested vide arrest memo Ex. PW1/C and personal search was conducted vide memo Ex. PW1/D. It is stated that accused was interrogated and IO recorded disclosure statement of accused which is Ex. PW3/A. Thereafter, ASI Surat Singh and Ct. Kishan left the spot and he along with HC Mahesh and accused went to Jalebi Chowk, Sultan Puri in search of accomplice of accused Kamal Singh, however, they could not be found, thereafter he came to PS.
7. PW4 SI Rameshwar Oraon was the Duty Officer on 22.07.2013, who exhibited on record copy of FIR as Ex.PW4/A and endorsement on the rukka as Ex.PW4/B. FIR No. 261/13, PS Moti Nagar Page 3/10
8. PW5 SI Narender Singh stated that on 23.07.2013, file of the present case was handed over to him to take PC Remand of accused Kamal Singh, accordingly he moved an application and sought PC remand of one day to apprehend accomplice of accused Kamal Singh, however, none of the accomplice could be found. The carbon copy of the application of PC remand moved by him is Ex. PW5/A.
9. PW7 SI Surat Singh stated that on 22.07.2013, he was on emergency duty from 08.00 AM to 08.00 PM. It is stated that on receipt of DD no. 29A he reached at Jakhira Bus Stand Moti Nagar, where he met complainant namely Japleen Singh. It is stated that he recorded the statement of Complainant and on the same he prepared the rukka and handed over the same to Ct. Shri Kishan for the registration of FIR. The rukka is Ex. PW1/A. It is stated that after registration of FIR Ct. Shri Kishan came back at the spot along with original Rukka and copy of FIR and handed over the same to him. This witness correctly identified the accused. It is stated that accused Kamal Singh was apprehended by the complainant and accused was found having in possession one laptop bag having mark of HP. The said bag was handed over to him. It is stated that firstly accused was taken to Acharya Bhikshu Hospital by Ct. Gurdavar for medical examination as accused sustained injuries due to beatings given by the public persons. After medical examination of accused, Ct. Gurdavar came back at the spot along with accused. It is stated that the laptop bag was seized vide seizure memo Ex. PW1/B. It is stated that further investigation of the present case was handed over to HC Mahesh Dutt who recorded his statement. In his cross examination, it is stated by him that on receipt of information he reached the spot along with Ct. Shri Kishan on the motorcycle of Ct. Shri Kishan within 10 minutes. It is stated that all the proceedings were done at the spot. He denied the suggestion that accused was called to the police station and then falsely implicated in the present case due to his previous involvements.
10. PW-6 Ct. Shri Kishan deposed on the same lines as that of PW-7 SI Surat Singh. In his cross examination it is stated by him that he reached FIR No. 261/13, PS Moti Nagar Page 4/10 the spot on the motorcycle of the IO along with IO SI Surat Singh.
11. PW8 ASI Mahesh Dutt stated that on 22.07.2013 he was posted at PS Moti Nagar as Head Constable. It is stated that on that day, ASI Surat Singh Yadav sent a rukka, on the basis of which present case was registered and investigation was handed over to him. The rukka is Ex. PW1/A. It is stated that he reached at the spot along with the original rukka and copy of FIR, where he met with ASI Surat Singh along with Ct. Krishan, complainant and accused. This witness correctly identified the accused. It is stated that the case property i.e. a laptop bag bearing mark of HP, black colour, was handed over to him along with seizure memo, which is Ex. PW1/B. It is stated that he prepared the site plan Mark A at the instance of the complainant. It is stated that accused was interrogated and arrested vide arrest memo Ex. PW1/C and personal search of accused was conducted vide memo Ex.PW1/D. It is stated that medical examination of accused was conducted at Acharya Bhikshu Hospital and after the medical examination he along with other police officials reached the police station and accused was put behind the bars. The case property was deposited in the malkhana. It is stated that during the investigation he recorded the statement of witnesses and after completion of investigation the charge sheet was filed before the Court. In his cross examination, it is stated by him that the present case file was handed over to him at around 6-6.30 PM on 22.07.2013. It is stated that complainant did not go to the police station on 22.07.2013. He could not tell if any bill/invoice of the laptop was given by the complainant or not. It is stated that he had not inquired from other public persons, driver or conductor of the bus wherein the incident had taken place.
12. No other witness was left to be examined hence, PE was closed.
THE DEFENCE :
13. Statement of accused U/s 313 Cr.P.C recorded, wherein he pleaded innocence and stated that he has been falsely implicated in the present case. It is stated by accused that he was called from his home and was falsely implicated in the present case in order to solve the case due to FIR No. 261/13, PS Moti Nagar Page 5/10 his previous involvements. It is stated that he do not know why the public witnesses have deposed against him. It is a false case. Accused opted not to lead defence evidence.
THE ARGUMENTS:
14. Ld. APP for state has argued that witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offences under section U/s 379/34 IPC are proved beyond reasonable doubt against the accused.
15. On the other hand, Ld. defence counsel has argued that there is no legally sustainable evidence against the accused. It is argued that case of prosecution is false and that is why no independent public person has been joined in investigation. It is argued that complainant has stated that IO had taken him as well to the accused to the police station on the other hand it is stated by the police officials that entire proceedings were done at the spot. It is also argued that once the complainant has stated that his laptop was stolen after opening the zip of his laptop bag which was on his shoulder, then how the laptop bag was recovered from the accused while it remained on the shoulder of the complainant. It is stated that the recovery of laptop bag from the accused is a false one. Same has been shown just to create the evidence.
THE FINDINGS:
Offence U/s 379/34 IPC:
16. Arguments adduced by Ld. APP for State and Ld. defence counsel for the accused has been heard. Evidences and documents on record perused carefully.
17. In order to bring home guilt of the accused for the offence under Section 379 IPC, the prosecution was required to prove following ingredients :-
a) That the accused had dishonestly taken the property.
FIR No. 261/13, PS Moti Nagar Page 6/10
b) That the property was movable.
c) That the property was taken out of the possession of another person/complainant.
d) That it was taken without the consent of that person/ complainant.
e) That there must be some moving of the property in order to accomplish the taking of it.
18. In the present case, there are ample evidence against accused. PW1 Sh. Japleen Singh is the material witness of the prosecution. He has correctly identified the accused. He has vividly described the manner of offence and act of the accused. His testimony has remained unrebutted even during cross-examination. He has categorically stated that 3-4 persons pushed (dhaka muki) him inside the bus while he was taking the ticket, the said persons removed the laptop from his laptop bag. The moment he realized that his laptop bag has been stolen he look towards the thieves and found his laptop bag in the hand of present accused who was also standing nearby while the three accomplice of accused Kamal Singh successfully fled away from the spot however, present accused Kamal Singh was apprehended with the help of public persons. It is also stated that the accused was also beaten up by the public. It is to be noted that the first DD no. 29A recorded in the present case received from PCR had also stated that one thief has been caught who had stolen a laptop. Thus, the apprehension of the accused at the spot is recorded in the proceedings from inception hence, the chances of calling him from home and falsely implicating are ruled out.
19. From the testimony of PW1, it is clear that accused with his accomplices had taken out laptop from the shoulder bag of the complainant. The present accused had also removed bag from the shoulder of the complainant while his accomplices successfully fled away from the spot, the present accused was caught by the complainant and the public persons while he was trying to flee away FIR No. 261/13, PS Moti Nagar Page 7/10 from the spot. The testimony of PW-1 found support from the testimony of the police witnesses.
20. There is categorical statement made by PW1 Japleen Singh implicating the accused in present case. There is no reason or motive for PW-1 to falsely implicate the accused in the present case. The testimony of PW1 remain unrebutted on all the material aspects. His testimony is natural and consistent and to the point. Further, nothing material could be extracted by the defence counsel even in his cross- examination.
21. The argument that no public person, driver or conductor of the bus who were present at the spot of incident were joined in the investigation at the time of apprehension of the accused is not material. As it is settled law that conviction can be based on the testimony of a single witness or even of police witnesses and it is not necessary that in each and every case, public witnesses must be joined. It is a known fact that in a city like Delhi generally the public persons do not come forward to be a part of any criminal investigation. In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
FIR No. 261/13, PS Moti Nagar Page 8/10
22. Hence, adverse inference cannot be drawn on account of failure of the police officials to join independent public persons apart from complainant PW1 at the time of apprehension of the accused. The failure on the part of the IO to join the public persons in the investigation is not fatal to the case of the prosecution as PW-1 has fully supported the case of the prosecution. The fact that IO failed to prove the DD entry whereby he was on patrolling or came to spot or the fact that the written proceedings were not conducted by the IO at the spot is a procedural lapse which cannot throw away the entire case of the prosecution. It is established principle of law that the complainant/victim shall not suffer due to the conduct of the IO and the accused shall not be allowed to take benefit of the faulty investigation of the IO. It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
"The settle position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
23. In the present case testimony of PW1 has established the guilt of the accused beyond any reasonable doubt. This Court found the testimony of PW1 absolutely credit worthy and truthful. Hence, on the basis of above stated evidence, in the considered opinion of this Court the prosecution has been able to prove on record beyond reasonable doubt that accused had committed theft of a laptop as well as laptop bag hanging on the shoulder of the complainant along with accomplices. Hence, accused Kamal Singh is liable to be convicted for commission of offence punishable under section 379/34 IPC.
24. In view of the above stated discussion the undersigned is of the considered opinion that all the ingredients of Section 379/34 IPC are FIR No. 261/13, PS Moti Nagar Page 9/10 satisfied. As such accused Kamal Singh S/o Sh. Attar Singh is convicted for the offence Under Section 379/34 IPC.
25. Copy of the judgment be supplied to the accused free of cost.
ANNOUNCED IN THE OPEN GAJENDER SINGH NAGAR) COURT ON 01.03.2017 MM-04 (WEST)/DELHI
Containing 10 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR)
MM-04 (WEST)/DELHI
FIR No. 261/13, PS Moti Nagar Page 10/10