Delhi District Court
It Has Been Held In Case Of Sadhu Singh vs State Of Punjab 1997(3) on 7 February, 2014
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (East), KARKARDOOMA COURTS, DELHI. FIR No. : 293/04 PS : Preet Vihar Offence complained of : 380 IPC Date of commission of offence : 11.06.2004 Unique Case ID No. : 02402R0144382005 STATE Vs. Baby W/o Sh. Surender R/o H. No. 28/78, Kasturba Nagar Delhi. ................ Accused Sh. Dinesh Joshi S/o Sh. Bachaspati Joshi rd R/o C5A, 3 Floor, Pandav Nagar Delhi. .............. Complainant Date of Institution : 22.03.2005 Plea of accused : Pleaded not guilty Date of reserving judgment/order : 20.1.2014 Date of pronouncement : 3.2.2014 Final Order : 3.2.2014 BRIFE STATEMENT OF THE REASONS FOR DECISION: ALLEGATIONS 1.
The case of the prosecution is that on 11.06.2004 at about 6.30 pm at Vishal Mega Mart show room, E367, Nirman Vihar, Delhi, accused committed theft of nine Tshirts from the above said show room and thereby committing an offence under Sec. 380 IPC. The accused was apprehended at the spot and was handed over to police and as such the present FIR was lodged.
FIR
2.On the complaint of the complainant, Sh. Dinesh Joshi, an FIR No. 293/04 U/s. 380 IPC was registered on 11.06.2004. Statement of witnesses were recorded, site plan was prepared, the accused was arrested and after completion of all necessary investigation challan U/s 173 Cr. P.C was presented in the court for trial 22.03.2005. CHARGE
3.The accused was produced from Judicial Custody to face trial and she was supplied the copy of charge sheet as per section 207 Cr.P.C. On the basis of the chargesheet, a Charge for the offence punishable under section 380 IPC was framed against accused Baby and read out to the said accused, to which the accused pleaded not guilty and claimed trial on 20.09.2006. Thereafter case was fixed for prosecution evidence.
Prosecution Evidence
4. In order to prove its case the prosecution has examined five witnesses namely Sh. Dinesh Joshi (PW1), HC Narender Pal Singh (PW2), L/HC Parmita (PW3), Ct. Vijender (PW4) and SI Prakash Chand (PW5) in all.
5. PW1 Sh. Dinesh Joshi, is the complainant in present case on whose complaint the present case was registered. He deposed that on 11.06.2004 in the evening, accused came in his showroom with her family members. There was rush in the show room and a staff member of the showroom along with the gate keeper had told the witness that someone had committed theft of articles from the showroom. Thereafter, accused was apprehended by the showroom staff and and 910 Tshirts were recovered from her possession. Thereafter, the complainant called at 100 no. and local police reached at the spot and accused along with the recovered Tshirts was handed over to the police. IO recorded the statement of the complainant Ex.PW1/A and got lodged the FIR. IO seized the Tshirts recovered from the accused vise seizure memo Ex.PW1/B. Thereafter, accused was arrested vide arrest memo Ex.PW1/C and her personal search was conducted by lady constable vide personal search memo Ex.PW1/D. The witness also identified the case property produced in the court as Ex.P1 to P9. The witness was cross examined at length by the Ld Counsel for the accused.
6. PW2 HC Narender Pal Singh proved the factum of registration of FIR Ex.PW2/A and endorsement Ex.PW2/B made by him on the rukka. He deposed that on 11.06.2004 he was posted at PS Preet Vihar and at about 8:30 PM he received rukka from Const Vijender sent by ASI Prakash Chand and he lodged FIR Ex.PW2/A on the basis of the same and made endorsement on the rukka.
7. PW3 Lady/HC Parmita deposed that on 11.06.2004 after receiving information, she reached Vishal Mega Mart, Nirman Vihar where she conducted the personal search of accused Baby on the direction of the IO and on personal search, one raxin purse containing Rs.75/, earrings, one ring, one nose pin and one pair of Bicchwa were found. All the recovered articles were kept in a cloth pullanda and sealed with seal of NPS and the seal after use was handed over to her.
8. PW4 Ct. Vijender deposed that after receipt of call he along with the IO reached at Vishal Mega Mart, Nirman Vihar where one Dinesh Joshi, manager produced one lady namely Baby and 9 Tshirts which were recovered from her possession. Thereafter, IO recorded the statement of Dinesh Joshi and prepared rukka and the same was given to him for registration of FIR. Thereafter, Ct. Vijender went to the police station and got the FIR registered and came back at the spot along with the copy of FIR and original rukka which was handed over to the IO. He proved the seizure memo Ex.PW1/B of the recovered Tshirts and deposed that the case property was kept in a pullanda and the pullanda was sealed with the seal of NPS. Thereafter, accused also proved the arrest memo Ex.PW1/C and personal search memo Ex.PW1/D.
9.PW5 SI Prakash Chand, Investigating Officer of the present case, deposed that on 11.06.2004, after receipt of a PCR call, he along with Ct. Vijender went to the spot i.e. Vishal Mega Mart, Nirman Vihar where one person namely Dinesh Joshi, Manager of Vishal Mega Mart met him who produced one lady accused namely Baby and 9 Tshirts which were recovered from the possession of accused. He recorded the statement of Dinesh Joshi Ex.PW1/A, prepared rukka Ex.PW5/A. He also called one Lady Ct. Pramita at the spot and sent Ct. Vijender along with the rukka for registration of FIR. After registration of FIR, IO prepared site plan Ex.PW5/B and seized the recovered Tshirts vide memo Ex.PW1/B. Thereafter, he arrested the accused vide arrest memo Ex.PW1/C and Lady Ct. Pramita conducted her personal search vide personal search memo Ex.PW1/D. Statement of Accused U/s 313 Cr.P.C
10.After completion of prosecution evidence, the statement of accused under Sec. 281 Cr.P.C. r/w Sec. 313 Cr.P.C. recorded separately, wherein, she categorically denied all the allegations levelled against her and stated that she had not committed any theft as alleged nor any T shirts were recovered from her possession. She further stated that she was standing at the Bus Stand of Preet Vihar where from she was picked up for no reason and was implicated in the present case. Accused declined to lead evidence in her defence.
11.I have heard the Ld. APP for the state and Ld. Defence counsel and have also carefully perused the entire record and the relevant provisions of the law. It has been argued by Ld. counsel for the accused that the seal which was put on the seized goods was that of the IO. He has further submitted that as per the complainant, the proceedings took place in police station and as such the investigation is shoddy. He has submitted that the FIR No. is mentioned on the recovery memo which indicates that the story of prosecution is false and that the accused has been falsely implicated by the police. Lastly, Ld. Counsel for the accused took the defence that no public witness was joined by the police officials besides the employees of Vishal Mega Mart.
JUDICIAL RESOLUTION
12.It is settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "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." Seal on the pulanda is of NPS whereas IO is SI Prakash Chand:
13. i. It has been argued that the seal on the pulanda is that of NPS, whereas there was no police official with the initial of NPS in the entire investigation.
ii. The submissions of the Ld. counsel in this regard are found to be correct that the case property was sealed by the IO in the pulanada sealed with the seal of NPS and that there was no police official with the initial of NPS in the investigation. The fact that the case property was sealed with the seal of NPS has been clearly stated by the IO in ht seizure memo of the case property Ex.PW1/B. Therefore, this is not a case where the case property was sealed with the particular seal at the spot, but was found to bear a different seal when brought to the court. It may be noted that in the seizure memo Ex.PW1/B, it is clearly stated that the case property ws sealed in a pulanada which was sealed with the seal of NPS. During the testimony of PW1, the case property was for the first time brought to the court on 02.04.2008 and when the seal was opened in the court, the same was found to be that of NPS. Therefore, the case property was sealed with the seal of NPS and the same was bearing the same seal when the case property was produced in the court.
iii. Though, it is true that there is no official with the initials of NPS, amongst the police officials who participated in the investigation, however, the prosecution story and the allegations against the accused cannot be thrown away merely because the IO used the seal of NPS instead of his own seal. The IO has honestly stated in the seizure memo Ex.PW1/B that the case property is sealed with the seal of NPS. Moreover, the present case is different from a case of theft where recovery is made by police officials and TIP is got conducted from the complainant. In the present case, the recovery had made by the complainant himself and when the police reached at the spot it was complainant/PW1 who handed over the accused and the stolen property (Tshirts) to the police. In the present case, even if the case property had not been sealed at all, it would have made no difference, as the recovery was made at the spot by the complainant himself and there was no requirement of Test Identification Pared for identification of the case property.
iv. In case in which the property was recovered at the spot by the victim himself or by any public persons, before the police reaches at the spot, the investigation that is carried out by the police is formal in nature as in such cases, it is not the investigation which resulted into recovery, rather it is the recovery which results into registration of case. v. Moreover, it is not the case of the defence that the case property recovered from the spot and sealed with the seal of NPS is different from the case property with the seal of NPS brought before the court during the testimony of PW1.
vi. Moreover, the case property Ex.P1 to Ex.P9 i.e. nine Tshirts were duly identified by PW1/complainant Dinesh Joshi and all the nine Tshirts were also having the tag of Vishal Mega Mart. The fact that the Tshirts were having the tag of Vishal Mega Mart, supports the story of the prosecution and they corroborates the testimony of the complainant as well as the complaint Ex.PW1/A and seizure memo Ex.PW1/B. Therefore, merely because the case property was sealed with the NPS not with the seal of the IO does not make much difference in the facts of the present case.
No Public witness joined during investigation/recovery:
14. The argument of the Ld. Defence counsel is that there is no independent public witness to the recovery allegedly made from the accused person and in absence of independent recovery witness, besides the employees of Vishal Mega Mart, no reliance should be placed on the testimony of PW1. He has vehemently argued that all the witnesses of recovery cited by the prosecution are employees of Vishal Mega Mart and in absence of any independent public witness, the testimony of PW1 who is employee of Vishal Mega Mart, by itself is not sufficient for convicting the accused.
14.1.A perusal of the testimony of PW1/complainant reveals that admittedly public persons were present at the spot but no other publice persons besides the complainant and Sunil, both employees of Vishal Mega Mart have been made witnesses in the present case.
14.2.The court does not subscribe to the argument of Ld. Defence Counsel that joining of independent public witnesses is sine qua non to prove the allegations against the accused and places reliance upon the judgment titled Ambika Prasad Vs. State (2000) 2 SCC 646 wherein it was observed by the Apex Court as under:
"12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW5 and PW7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason my be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. Vs. Anil Singh (1996 SCC [cri] 249) this court observed:
"In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
The court further relies upon judgment titled Karamjit Singh Vs. State (2003) 5 SCC 291 wherein it was observed as under :
"8. Shri Sinha, Ld. Senior Counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in the absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down......... The ground realities cannot be lost sight of that even in normal circumstances members of the public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises.......".
It has been further held in Aher Raja Khima Vs. State of Saurashtra (SC)1956 AIR (SC) 217 in para 40 as under: "Pausing here, it will be seen that in discussing the question of the recovery of the bloodstained axe, as indeed throughout the judgment, the learned Judge has taken up an attitude of distrust towards the police for which it is difficult to find any justification in the evidence an attitude which I regret to say, is becoming a growing feature of judgments of subordinate Magistrate.
When at the trial, it appears to the Court that a police officer has, in the discharge of his duty, abused his position and acted oppressively, it is no doubt its clear duty to express its stern disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course, when there is, as in the case, no reasonable basis for it in the evidence of in the circumstances. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. such an attitude could do neither credit to the magistrate nor good to the public. It can only run down the prestige of the police administration." A similar view has been taken by Hon'ble High Court in judgment titled as Ajmer Singh Vs. State of Haryana 2010 Cri.L.J. 1899 and also by our own Hon'ble High Court in judgment titled as Shashi Shekhar @ Neeraj @ Raju Vs. State 2007 Cri.L.J. 4193. In the present case, it is worth noting that during the course of the crossexamination of PW1/complainant and the IO, the defence did not even give any suggestion to the witnesses as to why they were falsely deposing against the accused and as to why they will falsely implicate the accused in the present case by planting recovery of nine Tshirts upon accused. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the accused when there was no animosity between the accused and the prosecution witnesses.
The court has no reason to disbelieve the testimony of prosecution witnesses especially PW1 Dinesh Joshi and in the opinion of the court the prosecution has been able to prove beyond reasonable doubt that Tshirts which were stolen by the accused from Vishal Mega Mart on 11.06.2004 and she was apprehended at the spot by PW1 and from her possession the said stolen Tshirts were recovered there and then.
15. FIR number mentioned on Seizure memo:
Further it is argued by the Ld. defence counsel that FIR no. is mentioned on seizure memo Ex.PW1/B though, the said seizure was alleged made before the registration of FIR.
The court on perusal of record found that the seizure memo of the Tshirts Ex.PW1/B bears the number of FIR. However, as per rukka Ex.PW5/A, and even as per the testimony of PW5 and PW4, the said document was prepared after the registration of FIR.
It may be noted that it is not the case of the prosecution that the seizure memo was prepared by the police before the registration of the FIR. As per the rukka, before the registration of the FIR only the statement of complainant, namely PW1 Dinesh Joshi was recorded. All the proceedings, i.e. preparation of site plan Ex.PW5/B and seizure memo of Tshirts Ex.PW1/B was done after the FIR was registered and after the copy of the FIR and the original rukka was handed over by PW4 to PW5.
16. Overwriting in the complaint Ex.PW1/A. Ld Counsel for the accused has submitted that there is cutting in the complaint Ex.PW1/A on the basis of which the present FIR has been registered.
A suggestion in this regard was also given by the Ld. Defence counsel to the complainant/PW1 and the witness has admitted that the there was no cutting or overwriting in Ex. PW1/A when the same was signed. Ld counsel for the accused has pointed out that there is overwriyting in the complainant and the court has carefully gone through the complaint Ex.PW1/A. There are some corrections in the complaint which are grammatical, however, there is one correction as regards time which has been pointed out to be a material objection. The time in the complaint Ex PW1/A and in the rukka Ex.PW5/A has been corrected as 6:30 PM, however, no question in this regard has been put to the complainant or to the IO/PW5. There can always be mistake in writing the complaint and if the said case supported the defence, that the defence should have pointed out these corrections to PW1 and PW5 and should have asked them to explain the said corrections. Merely putting to the witness (PW1) that there were no corrections in the complaint when the same was signed by him, is not sufficient to to create a doubt in the mind of the court as regards the testimony of the complaint or that of the IO/PW5. Therefore, the said overwriting in the complaint and the rukka is not by itself sufficient to give benefit of doubt to the accused. Conclusion In view of the above discussions and cited judgments, all the necessary ingredients to make out an offence u/s 380 IPC stands proved as it stands proved beyond reasonable doubt that the accused committed theft of T shirts from Vishal Mega Mart on 11.06.2004 which were recovered from the accused at the spot there and then. Accused Baby is accordingly convicted for the offence u/s 380 IPC.
Be heard separately on point of sentence on 07.02.2014. ANNOUNCED ON 03.02.2014.
(SAURABH PARTAP SINGH LALER) ACMM (East)/KKD/03.02.2014 Certified that this judgment contains 19 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) ACMM (East)/KKD/03.02.2014 IN THE COURT OF SH. SAURABH PARTAP SINGH LALER, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (East), KARKARDOOMA COURTS, DELHI.
FIR No. : 293/04
PS : Preet Vihar
Offence complained of : 380 IPC
Date of commission of offence : 11.06.2004
Unique Case ID No. : 02402R0144382005
STATE
Vs.
Baby
W/o Sh. Surender
R/o H. No. 28/78, Kasturba Nagar Delhi.
................ Convict
Sh. Dinesh Joshi
S/o Sh. Bachaspati Joshi
rd
R/o C5A, 3 Floor, Pandav Nagar Delhi.
.............. Complainant
Date of Conviction : 03.02.2014
Date of Sentence : 07.02.2014
ORDER ON SENTENCE
Convict Baby was convicted for offence under section 380 IPC on 03.02.2014.
Arguments on sentence heard at length on behalf of both the parties. Punishment prescribed by Law: As per section 380 IPC, the punishment prescribed is imprisonment for a term which may extend to seven years and fine.
Arguments : Ld. Counsel for the convict submitted that this is the first offence of the convict, who is a widow and having three children of which two are minor. That convict is facing trial since 2005. Ld Counsel has further submitted that convict has remained in custody for six days and has not committed any offence ever again since 2004.
Considerations: At this stage of order on sentence, the court is well aware of the fact that protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing an appropriate sentence and that it is the duty of this court as that of any other court, to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Proportion between crime and punishment is a goal respected in principle.
Thus, the court at this stage is required to give consideration to the facts and circumstance of this case for deciding the just and appropriate sentence to be awarded for offence under section 380 IPC, and also considered the aggravating and mitigating facts and circumstances in which a crime has been committed as the same are to be delicately balanced on the basis of relevant circumstances in dispassionate manner by this court. Aggravating Circumstances:
Nil, as no previous involvement reported.
Mitigating Circumstances:
1. It is first offence of the convict
2. Convict is facing trial since 2005.
3. Convict is a lady
4. Convict is a widow.
5. Convict is having three children out of which two are minor.
6. Convict sole bread earner in the family.
7. The theft is only of 9 T shirts i.e. of goods of small amount.
8. Convict belongs to economically weaker section of society.
9. Convict remained in custody for six days.
10.Convict has not committed any offence after the offence under consideration.
Order on Sentence: The convict has been convicted for offence under section 380 IPC in this case on 03.02.2014, The object of sentencing is reformation and not retribution. Keeping in mind the said object and the fact that the convict has not committed any offence again, the court proceeds to pass order on sentence.
In view of the mitigating circumstances the convict is sentenced to undergo simple imprisonment for the period she has already undergone and she is further sentenced to pay fine of Rs.20,000/ in default, simple imprisonment for six months.
Rs.10,000/ out of the said fine shall be payable to the aggrieved/victim i.e. Vishal Mega Mart as compensation.
It is, however, made clear that undergoing sentence in default of payment of fine shall not absolve the convict of her liability to pay fine as the same shall in such case be recoverable under section 421 of Cr.P.C.
Fine not paid.
The convict is given one month time to deposit the fine of Rs.20,000/ Benefit under Section 428 Cr.P.C is given to the convict. Copy of the Judgment and this order be given free of cost to the convict.
(S. P. S. LALER) ACMM(East)/KKD/07.02.2014