Delhi District Court
Tahir S/O Irshad vs State on 1 April, 2014
IN THE COURT OF SH. SANJAY BANSAL:
ADDITIONAL SESSIONS JUDGE03 (East):
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Criminal Appeal No.: 03/14
(02402R0324402013)
Tahir S/o Irshad
R/o C461, Gali No. 23,
Mulla Colony, Delhi.
... Appellant
Vs.
State
..... Respondent
FIR No. : 154/05 PS: New Ashok Nagar U/s. 379/356/411/34 IPC Date of Institution: 04.10.2013 Judgment Reserved on: 20.03.2014 Date of Judgment: 01.04.2014 JUDGMENT.:
1. Present criminal appeal has been filed under Sec. 381 read with Sec. 389 Criminal Procedure Code, 1973 (CrPC) against judgment dated 23.09.2013 and order on sentence dated 26.09.2013 passed by Ld. ACMM (East).
2. Vide judgment 23.09.2013 ("impugned judgment") appellant was convicted Crl Appeal No. 03/14 Tahir v. State Page no. 1 of 10 for the offence punishable under Sec. 356/379 of Indian Penal Code, 1860 ("IPC"). Vide order on sentence dated 26.09.2013, appellant was sentenced to undergo SI for two years and also to pay a fine of Rs 2000/ I/D SI three months for the offence punishable under Section 356 IPC. Appellant was also sentenced to the same punishment for the offence punishable under Sec. 379 IPC and it was ordered that both sentences shall run concurrently.
3. The facts leading to filing of the present appeal are as follows:
4. One Ms Jessy Methew (PW1) alleged that on 08.04.2005 she was coming back to her house from NOIDA in a bus on route no. 378 and when she got down from the said bus and was going towards her house and reached opposite Pocket B6, Flat no. 13 A, Mayur Vihar Phase III, one boy who was already standing there, snatched her gold chain weighing around 12 grams and left the spot in a car in which 23 other persons were already sitting. Complainant could note down the registration number of said car as 4929. On these allegations, an FIR under Sec. 379/356 IPC was registered and matter was investigated. On 28.04.2005 appellant was arrested in case bearing FIR No. 173/05 PS New Ashok Nagar wherein he made disclosure statement about his involvement in the present case. He also disclosed involvement of his associates Faim and Sharif.
Appellant was arrested in the present case and was identified by complainant and also got recovered the stolen gold chain from his house in the presence of complainant.
5. After completion of investigation challan was filed under sections 379/356/411/34 IPC against appellant herein. His associates namely Faim and Crl Appeal No. 03/14 Tahir v. State Page no. 2 of 10 Sharif could not be traced.
6. Ld MM after considering the matter framed the charge against the accused/appellant under Section 356; 379 & 411 IPC to which accused pleaded not guilty and claimed trial.
7. Prosecution examined nine witnesses and after considering the entire material on record, ld ACMM vide his judgment held the accused guilty and sentenced him as noted in the beginning.
8. Appellant has challenged his conviction on various grounds. Ld counsel for the appellant submits that appellant was innocent and was implicated falsely by the police. It is also submitted that he was lifted from his house by the police. It is also submitted that testimony of complainant Ms Jessy Methew (PW 1) is not to be believed. It is also contended alleged recovery was effected after about twenty days of the alleged incident of snatching. Ld counsel for the appellant argued that testimony of PW 1 is not believeworthy. He pointed out various contradictions in her testimony. Particularly, ld counsel referred to identification of the case property.
9. On the other hand, ld PP for State submitted that judgment and order on sentence awarded by ld trial court is in accordance with law and same is neither illegal nor perverse, hence no interference is called for either in judgment or order on sentence.
10. I have heard Sh. S.S.Chaudhary, Ld. Counsel for the appellant and Sh. Abdul Aleem, Ld. PP for the State. I have carefully perused the records.
11. PW1 Ms. Jessy Mathew is the star witness for the prosecution. She had Crl Appeal No. 03/14 Tahir v. State Page no. 3 of 10 categorically deposed about the incident of snatching, recovery of the stolen gold chain, arrest of the appellant etc. She had identified the appellant in the court also. She produced the case property i.e. Gold Chain as well in the court. Perusal of the seizure memo Ex. PW1/B goes to show that complainant has signed the same as a witness and thus presence of PW 1 at the time of the recovery can not be doubted.
12. It is important to note that PW 1 was not crossexamined on behalf of appellant. Ld counsel for the appellant laid emphasis on this aspect. He submitted that grave injustice has been caused to the appellant as PW 1 was not crossexamined by or on his behalf. He submitted that Ld. ACMM did not provide any legal assistance.
13. I am of the view that this grievance of appellant is meaningless. The counsel for the accused had appeared prior to 21.07.2005 i.e. date on which PW1 was examined. Ld counsel for the accused appeared thereafter also. But it was only on 21.07.2005 that the ld counsel for the accused did not appear. It was the duty of the accused himself to ensure that his counsel remained present at the time of the examination of the witnesses. It was responsibility of the accused to ensure that witness(es) would be cross examined on his behalf. I am of the view that accused/appellant must suffer for omission on his part. Ld trial court was not under any obligation to provide any legal assistance as private counsel for the accused had appeared on 08.07.2005 on which date accused/appellant was granted bail on an application which was moved on his behalf. On the very next date i.e. 04.08.2005, ld counsel for the accused had Crl Appeal No. 03/14 Tahir v. State Page no. 4 of 10 also appeared. Thus, accused/appellant was having his own counsel. Moreover, on 21.7.2005, the appellant was on bail and there was no obligation upon the trial court to provide any legal aid counsel. To me, it seems deliberate on the part of the accused/appellant that his counsel did not appear on material date. The only intention of the appellant was to harass the witness. Further, it is to be noted that an application was also moved under Sec. 311 CrPC on behalf of the accused which was allowed and PW 1 was ordered to be recalled subject to availability.
14. Record reveals that summons were sent to PW 1 again, but she had left the given address. Therefore, on account of unavailability, PW 1 could not appear later. For this also, it is the accused/appellant who is responsible. Thus, there is no merit in this contention of the appellant.
15. Ld counsel for the appellant vehemently argued that case property was improperly identified. He had drawn my attention to evidence of PW 3 - HC Shiv Dutt which was recorded on 10.12.2012. He submitted that as appears from the record, case property was shown to PW 3 which was brought by MHC(M). He pointed out that earlier in testimony of PW 1, it had come that the case property i.e. gold chain was on superdari with her/PW 1. He thus contended that how come the case property was produced from malkhana during evidence of PW3 when it was already on superdari with PW1. Ld counsel tried to convey that the case property shown to PW 3 on 10.12.2012 was not the case property of the present case or that if it was so, PW 1 brought different property when she gave her evidence on 21.07.2005.
Crl Appeal No. 03/14 Tahir v. State Page no. 5 of 10
16. It is true that in the evidence of PW 3 recorded on 10.12.12, it has been recorded that case property was shown to the witness bearing seal of MA and it was identified by witness also and marked as Ex. P 1. This does show some discrepancy. In the evidence of PW 1, it is clearly recorded that case property was brought by her as same was on superdari. In these circumstances, a report was called from the concerned police station.
17. As per report, the case property was deposited back in the malkhana later as the complainant had surrendered the same in the court. There is an entry in the relevant register copies of which have been filed with the report. Perusal of the same clarifies the situation. Thus on 21.07.2005, the case property was on superdari and was brought by complainant; and on 10.12.2012, it was in the malkhana and was produced from there.
18. Ld counsel also contended that recovery was made after about 20 days of the alleged incident. He submitted that no person would keep stolen property for such a long period. He thus stressed that case property was planted upon the appellant.
19. I am not impressed with this argument. The chain was of gold and it was quite natural that any person would keep it. May be appellant was not willing to sell it immediately.
20. Ld counsel disputed the fact of recovery of the gold chain further on the grounds that there were contradictions in the testimonies of the PW 3 - HC Shiv Dutt and PW 4 Const Jitender Kumar as well as PW 1.
21. PW 3 HC Shiv Dutt has deposed that complainant (PW1) had joined the Crl Appeal No. 03/14 Tahir v. State Page no. 6 of 10 investigation after recording of disclosure statement of the appellant and thereafter she along with police party went to the house of the appellant from where the gold chain was recovered. Whereas PW 4 Const Jitender says that when the police party along with appellant were going to appellant's house at Mayur Vihar Phase III, complainant (PW 1) met them on the way and enquired about her case. On seeing the appellant, she identified him as the culprit and accompanied the police party to the house of the appellant. Ld counsel argued that this contradiction decreases the weight of all the recovery witnesses.
22. I am of the view that if there is any contradiction regarding as to when and how complainant joined the investigation, the same is merely to be regarded as minor contradiction which does not affect the testimony of the recovery witnesses at all. This contradiction at best can be described as error of human memory. The same does not erode the core of the evidence of these witnesses i.e. stolen gold chain was recovered from the house of the appellant at his instance. The evidence regarding recovery of gold chain does not get affected at all. Minor discrepancies do not affect weight of the evidence of the witnesses at all. Reference may be made to Vijay @ Chinee v. State of M.P. [(2010) 8 SCC 191]; State of U.P. v. Naresh & Ors. [(2011) 4 SCC 324]; and Brahm Swaroop & Anr. v. State of U.P. [AIR 2011 SC 280].
23. Ld counsel made another attempt by highlighting that PW 4 stated that gold chain was recovered wrapped in a piece of paper beneath a brick placed on paya of the bed whereas PW 8 ASI Mohd Aftab/IO stated that same was recovered which was kept in a newspaper below the brick under the bed.
Crl Appeal No. 03/14 Tahir v. State Page no. 7 of 10 According to ld counsel this is another contradiction.
24. To my mind, there is only difference of words spoken by witnesses otherwise sense of these sentences is the same. I am also of the view that these arguments are advanced only for the sake of arguments.
25. It is to be kept in mind that complainant PW 1 had no reasons to falsely implicate the appellant nor the appellant has been able to show the same. Even if, testimony of PW 3 & PW 4 is discarded, the fact of recovery of gold chain from the house of the appellant is clearly proved from the testimony of PW 1 alone. It is settled law that the number of the witnesses is not of any relevance. It is rather the quality of the evidence which is important. Prosecution can prove the charge only on the testimony of a sole witness. Reference may be made to Vadivelu Thevar Vs State of Madras [AIR 1957 SC 614] and Bipin Kumar Mondal Vs State of West Bengal [AIR 2010 SC 3638].
26. Ld counsel for the appellant made another interesting submission. He submitted that appellant was not identified by PW 1 during her evidence. He alleged that ld APP who had been questioning the witness (PW 1) on his own got the sentence typed regarding identification of the appellant as the offender. Ld counsel submitted that the witness (PW1 ) had not pointed out towards the appellant and rather ld APP in routine manner got recorded fact of identification of accused.
27. To me, this argument is not only baseless but rather scandalous as well. The proceedings of the ld trial court are being labelled as manipulated. If these kinds of submissions are entertained, administration of justice will become Crl Appeal No. 03/14 Tahir v. State Page no. 8 of 10 impossible. Why not this was agitated at the time when the evidence was being recorded or on the next date or later? This is nothing but an attempt to scandalise the court proceedings.
28. Ld counsel argued that appellant was entitled for acquittal. He submitted that two views were possible on the basis of the material on record and, therefore, the view favourable to the appellant should have been taken. He has relied upon Chandrappa & Ors. v. State of Karnataka [2007 (2) Crimes 103 (SC)] and K. Prakashan v. P.K. Surenderan [(2008) 1 SCC 258] in this regard.
29. I have gone through the judgments. These judgments are of no help since in the present case, there are no two views. There is only one view and that is that the appellant is the offender.
30. The appellant was rightly convicted and, therefore, the impugned judgment is upheld.
31. As far as sentence is concerned, Ld. Counsel submitted that lenient view should have been taken against the appellant. He highlighted that there was no previous conviction or any other involvement. He emphasized that the appellant was of young age at the time of the commission of the offence. He informed that the appellant has been in custody for a substantial period.
32. I find that the Ld. ACMM has already taken into consideration the young age of the appellant. He was cognizant of the circumstances of the appellant. However, sentence of RI for two years is somewhat on higher side. Ends of justice would be served if sentence of imprisonment is reduced to RI for one Crl Appeal No. 03/14 Tahir v. State Page no. 9 of 10 year each for both the offences punishable under Sec. 356 and 379 IPC. Sentence of fines and in default of payment of fines are, however, maintained. Further, appellant is granted benefit of Section 428 CrPC and it is also ordered that both sentences shall run concurrently. Ordered accordingly.
33. The appeal is disposed of in above terms.
34. Consequently, the appeal is partly allowed.
35. A copy of the judgment be placed in the TCR and same be sent to court concerned immediately. Trial court shall secure presence of the appellant for sending him to serve out the remaining sentence. At request, copy of this judgment be given to ld counsel for the appellant and another copy of this order be also sent to Suptd Jail, Dasna and Tihar as well for information and compliance of order. Suptd Jail, Dasna is also directed to produce the appellant before ld trial court on 11.04.2014.
36. Appeal file be consigned to RR.
Announced in open court
st
on 01 day of April, 2014 (Sanjay Bansal)
ASJ03 (East)
KKD Courts: Delhi: 01.04.2014.
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