Delhi District Court
State vs . Nirmal Kumar on 18 October, 2019
CNR No. DLCT020026362016
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT020026362016
CIS No. 289215/16
State Vs. Nirmal Kumar
FIR No. 86/16
PS. Nabi Karim
U/s. 379/34 IPC
JUDGMENT
1) The date of commission of offence : 27.03.2016
2) The name of the complainant : Shri Shakti Singh
3) The name & parentage of accused : Nirmal Kumar S/o. Mukesh Kumar, R/o. H.No. J177, Gali No.4, Pusta No. 4, Kartar Nagar, Shastri Nagar, Usmanpur, Delhi.
4) Offence complained of : 379/34 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Convicted
7) The date of such order : 18.10.2019
Date of Institution : 22.04.2016
Judgment reserved on : 20.09.2019
Judgment announced on : 18.10.2019
BRIEF REASONS FOR THE JUDGMENT:
CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 1/11
CNR No. DLCT020026362016
1) The case of prosecution against the accused is that on 27.03.16, at
about 10.55 AM, at DBG Road, in front of Today Hotel, Pahar Ganj, within the jurisdiction of PS Nabi Karim, he alongwith his associate Amit (not arrested, being not traceable), in furtherance of their common intention committed theft of Rs. 48,000/ from the pocket of the complainant Satya Singh when he was travelling in a DTC bus alongwith his friend Rishab.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of charge were heard. Vide order dated 03.05.16, a charge u/s. 379/34 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined four witnesses. The accused has not disputed the fact as to the registration of the present FIR. His separate statement was recorded as per section 294 Cr.PC on this aspect. Statement of accused was recorded under section 313 Cr.P.C r/w Section 281 (1) Cr.PC, in which he denied all the allegations and did not wish to lead DE.
4) I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
5) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 2/11 CNR No. DLCT020026362016 of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
6) The star witness of the present case is the complainant Satya Singh examined as PW1 by the prosecution. The another eyewitness Rishab was examined as PW2. It is to be appreciated as to whether the prosecution is able to discharge its burden of proof vide testimony of complainant and eyewitness Rishab or whether the testimony of PW1 and PW2 is so reliable that the accused be convicted on the basis of that testimony.
7) PW1 / complainant Shakti Singh deposed that on 27.03.16, he alongwith his friend Rishab came to Delhi from Jammu by Jhelum Express for purchasing clothes and they deboarded the train at New Delhi Railway Station. They deposed that since they wanted to go to Tank Road, they asked the direction to Karol Bagh from two boys. He deposed that they were apprised by those boys that they should take the bus of route no. 181 and the bus of that number arrived there. He deposed that he alongwith his friend boarded that bus and at the same time the accused, who was one of the two boys from whom the query was made as to the route of Karol Bagh, also boarded the same bus. He deposed that as the bus reached at DBG Road in front of Today Hotel he opened the chain of his lower for taking out money for purchasing tickets. He deposed that then the accused noticed that the money is lying in his pocket. He deposed that the accused Nirmal Kumar took out Rs. 48,000/ from the pocket of his lower and handed over the same to his associate wearing pink Tshirt and both of CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 3/11 CNR No. DLCT020026362016 them jumped from the running bus. He deposed that he also jumped from the bus and apprehended the accused Nirmal Kumar (correctly identified by the witness), who took out the money from his pocket. He deposed that his friend Rishab also arrived there and they took the accused Nirmal to PS Pahar Ganj but they were apprised that the jurisdiction was of PS Nabi Karim. He deposed that thereafter they went to PS Nabi Karim and there his statement Ex. PW1/A was recorded and the FIR was lodged on the basis of that statement. He deposed that the accused was interrogated and thereafter arrested vide arrest memo Ex. PW1/B and personally searched vide Ex. PW1/C. He deposed that on the personal search of accused one mobile phone and one DTC Bus pass was recovered. He deposed that the IO prepared the site plan which is Ex. PW1/D and seized the DTC bus pass recovered from the possession of accused Nirmal Kumar vide Ex. PW1/F. He deposed that IO also seized the railway tickets and bus passes from him and his friend vide Ex. PW1/G. He identified those railway tickets and bus passes when the same were produced by the MHC(M).
8) Perusal of examination in chief of PW1 reveals that he supported the case of the prosecution in all aspects. He correctly identified the accused and deposed without ambiguity as to the apprehension of the accused and the preparation of necessary documents by the IO. His testimony qua theft instills the faith of this court.
9) Ld. Defence Counsel during the final arguments pointed out some contradictions between the testimony of the complainant / PW1 and his CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 4/11 CNR No. DLCT020026362016 friend Rishab / PW2 visavis the original statement of the complainant Ex. PW1/A. For appreciating those contradictions, which will be discussed in the later part of this judgment, it is imperative to mention the testimony of PW2 at this stage only.
10) PW2 deposed that on 26.03.16, he alongwith his friend came to Delhi from Jammu by Jhelum Express and deboarded at New Delhi Railway Station. He deposed that they took the bus of route no. 181 for going to Karol Bagh and when the bus reached near Today Hotel he asked his friend Shakti Singh ( PW1) to purchase the ticket from the conductor by going at the rear end of the bus. He deposed that his friend was having Rs. 48,000/ in the pocket of his lower. He deposed that when the bus reached near PS Pahar Ganj his friend Shakti Singh called him and told that the accused (correctly identified) took out all of his money i.e. Rs. 48,000/ and gave the same to the another boy wearing pink Tshirt, who fled away from the spot by jumping from the moving bus. He deposed that he alongwith his friend took the accused to PS Pahar Ganj and thereafter to PS Nabi Karim as the jurisdiction was of PS Nabi Karim. He deposed that in the PS the statement of his friend was recorded and the accused was interrogated. He deposed that the accused was arrested and from the personal search of the accused one mobile phone and DTC pass was recovered, which were seized vide Ex. PW1/F. He deposed that the IO also seized their railway tickets and bus passes vide Ex. PW1/G.
11) PW2 also supported the case of the prosecution by deposing on the CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 5/11 CNR No. DLCT020026362016 lines of the complainant / PW1 and by correctly identifying the accused as the person which was apprehended by his friend Shakti Singh. He deposed as to the paper work done by the IO as to the arrest of the accused and the preparation of other documents.
12) The first issue is of the identification of the accused. When the accused was examined u/s. 313 Cr.PC, recorded as per section 281(1) Cr.PC, accused stated that he was falsely implicated in the present case and had not committed any theft. The complainant identified the accused in the court as the person who committed the theft of Rs. 48,000/ from his pocket. The name of the accused is also mentioned in the initial statement of the complainant which is Ex. PW1/A and consequently in the FIR also. PW2 also identified the accused as the person who was apprehended by his friend Shakti Singh.
13) Ld. Defence counsel argued that PW1 deposed that he apprehended the accused after running behind him when the accused jumped from moving bus while PW2 deposed that the accused was apprehended in the bus only and this is the material contradiction. In the considered opinion of this court, this contradiction is not material at all. This could be the contradiction as to the place where the accused was apprehended but this contradiction as to the place of apprehension is not creating any doubt as to the identification of the accused. If the accused was apprehended in the bus only by the complainant or outside the bus by jumping from the bus is of no consequence as far as the identification of accused being the offender in CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 6/11 CNR No. DLCT020026362016 the present case is concerned. There was no reason for the complainant and his friend to falsely implicate the accused. Admittedly, both the parties were unknown to each other prior to the incident. The complainant and his friend are the residents of Jammu, while the accused is the resident of Delhi. It is not believable that two persons who are not the resident of Delhi had any ill feelings against the accused to falsely implicate him in the present case. Their identification of the accused in the court is completely trustworthy. They had not put any suspicion rather they deposed very surely that it was the accused Nirmal Kumar only who removed Rs. 48,000/ from the pocket of the complainant. Accordingly, the contradiction as to the place of apprehension of the accused by the complainant and his friend is not a material contradiction at all.
14) Ld. Defence Counsel argued that both PW1 and PW2 deposed that initially they went to PS Pahar Ganj with the accused and thereafter they went to PS Nabi Karim and this fact is not mentioned in the complaint. Ld. Counsel argued that this fact makes the initial complaint Ex. PW1/A an unreliable document. It is true that it is not mentioned in the initial complaint that the accused was taken to PS Pahar Ganj first and thereafter in PS Nabi Karim and this omission can be easily understood by considering as to who is the author of Ex. PW1/A. Ex. PW1/A is in the handwriting of IO. A police official will not record any averment of a public person which is against the police only. Had the IO recorded this fact in Ex. PW1/A that the complainant was sent back from PS Pahar Ganj CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 7/11 CNR No. DLCT020026362016 by citing the cause of lack of jurisdiction then the zero FIR could have been registered, will certainly raise fingers as to the working of Delhi Police. The IO of the present case being the member of Delhi Police will not record anything against Delhi Police only, even if the same was told by the public persons. The IO would not prepare the document against the Delhi Police and accordingly the fact that it is not mentioned in the statement Ex. PW1/A that the complainant and his friend first visited PS Pahar Ganj is of on consequence.
15) It was argued by Ld. Defence Counsel that PW1 deposed that they had taken the accused to PS Pahar Ganj while PW2 deposed that the bus driver stopped the bus in front of PS Pahar Ganj are contradictory statements. In the considered opinion of this court, there is no contradiction as such. The proved fact is that the accused was taken to police station Pahar Ganj by the complainant and his friend. It is of not relevancy to discuss as to whether the accused was taken on foot or the bus driver stopped the bus in front of PS Pahar Ganj. This alleged contradiction is of no merit.
16) Another argument of Ld. Defence counsel is that the conductor and bus driver of the DTC Bus was not made as a witness by the IO and as such this is a loophole in the case of the prosecution. First thing first, this is trite that the quantity of the evidence is not material, the material is the quality of evidence. PW1 and PW2 stood the test of the cross examination so far as the identification of the accused is concerned and it has also came CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 8/11 CNR No. DLCT020026362016 on record in the testimony of these witnesses that the accused handed over that stolen money to a boy wearing pink Tshirt. The testimony of PW1 and PW2 remained unshaken on material aspects during the cross examination. If the bus driver or conductor were not mentioned as the witnesses it is not such a fact which is destroying the credibility of the complainant and his friend.
17) Another argument of Ld. Defence Counsel is that it is came on record that the complainant and his friend were not taken to the place of incident and thus the testimony of IO that the site plan was prepared at the instance of the complainant and his friend is not trustworthy and accused is entitled to have benefit of this fact. In the considered opinion of this court the purpose of the site plan is to have the clarity over the place of the incident. In the present case, the place of incident is clearly coming on record that is in front of Today Hotel at Desh Bandhu Gupta Road. Nothing more is required as to the place of incident. This is not the case of rash or negligent driving where the situation of road, traffic and the nearby places plays an important role. The present case is of the offence of theft and the place of incident as described by the witness and so mentioned in the FIR is sufficient to have certainty as to the place of incident. Accordingly, this argument is also merit less.
18) It was also argued by Ld. Defence Counsel that it was not told by the accused to the IO at the time of recording of the FIR that the query was made from the accused as to the way to the Karol Bagh by the complainant CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 9/11 CNR No. DLCT020026362016 and accused boarded that bus only and thus the testimony of complainant in the court where he so deposed is a material improvement which makes the testimony of complainant incredible. It is well settled law that the FIR is not an encyclopedia of events. It is not expected that each and every minute detail will be mentioned in the FIR. This fact as deposed by the complainant in the court is introductory in nature and thus the omission of this fact in the initial statement of the complainant is not fatal to the case of the prosecution. Further, it was held by Hon'ble Apex Court in the judgment titled as 'B.K. Channappa Vs. State of Karnataka, AIR 2007 SC 432' that some contradictions, improvements or omissions are bound to occur when the witness be examined and minor contradictions cannot be treated as very serious, vital and significant so as to disbelieve and discard the substratum of the prosecution case.
19) The seizure memo of the DTC bus pass from the possession of the accused and from the possession of the complainant and eyewitness also corroborates the presence of accused, complainant and the eyewitness Rishab at the same place at the similar time. This also gives more strength to the case of the prosecution. The identification of accused being offender proved on record. The fact as to the removal of Rs. 48,000/ by accused dishonestly from the possession of complainant is also proved.
20) In view of the above discussion, it is proved on record that on 27.03.16, the complainant and his friend Rishab were going to Karol Bagh in a DTC of route no. 181 and there in front of Today Hotel, Pahar Ganj CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 10/11 CNR No. DLCT020026362016 the accused committed the theft of Rs. 48,000/ from the pocket of the complainant and handed over that money to his associate who is not traceable. The modusoperandi adopted by the accused and his associate clearly makes out the common intention on the part of the accused and his associate.
21) Accordingly, the prosecution is able to discharge its burden of proof. All the ingredients of the offence u/s. 379/34 IPC is proved against the accused. Accused is accordingly convicted for the offence u/s. 379/34 IPC.
Copy of judgment be supplied to the convict fee of cost. Be heard on the point of sentence.
Digitally signed KAPIL by KAPIL KUMAR
KUMAR Date: 2019.10.18
15:51:06 +0530
Announced in open court (Kapil Kumar)
on 18.10.19 MM5/Central District
Tis Hazari Courts/Delhi,
CIS No. 289215/16, State Vs. Nirmal Kumar, FIR No. 86/16, PS. Nabi Karim, U/s. 379/34 IPC 11/11