Delhi District Court
State vs . Ramesh Chand Etc. on 1 April, 2011
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Ramesh Chand etc.
FIR No. 55/96
PS: Keshav Puram
U/s 380/411/34 IPC
ID No. 02404R0017621996
JUDGEMENT
A) Sl. No. of the case : 84/2
B) The date of commission : 29.03.96
of offence
C) The name of the complainant : Sh. Brij Raj Sharma
s/o Sh. Nityanand Sharma
r/o H3/56, Sector 16, Rohini, Delhi
(Supervisor MCD)
D) The name & address of accused : 1. Ramesh Chand
s/o Sh. Bhunde Ram
R/o 212, Village Alipur, Delhi
2. Chandesar (PO vide order dt. 10.07.06)
s/o Sh. Bhatru Rai
r/o Village Dularpur Ghat,
PS Sumbar Shah, Distt. Sitamadi (Bihar)
3. Dharambir
s/o Sh. Dori Lal
r/o Village Goriya, PS Wazirganj,
Distt. Badaiun, U.P.
FIR No. 55/96 Page No.1/11
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4. Radhey Shyam (PO vide order dt. 10.07.06)
s/o Sh. Budhu
r/o Village Bichla Katen, PS Itawa,
Distt. Sidharth Nagar, Bihar
E) Offences complained of : U/s 380/411/34 IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Convicted
H) The date of such order : 21.03.2011
Date of Institution: 20.09.1996
Judgment reserved on: 21.03.2011
Judgment announced on: 01.04.2011
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 29.03.1996 at about 5.15 am at MCD Store, B2, BlockK, Keshav Puram, Delhi, all the accused in furtherance of their common intention committed theft of five old rickshaws as mentioned in recovery memo from MCD store B2, BlockK, Keshav Puram.
2. The story of the prosecution is that ASI Kanwar Lal and Ct. Lalit Kumar were on patrolling duty vide DD No. 26A dt. 29.02.96 and at about 5.30 am when they reached near Govt. School, they saw that four persons were pulling five rickshaws and the complainant namely Brij Raj Sharma was chasing them by raising alarm 'chor chor pakdo pakdo' on which both the said police officials overpowered the said four persons alongwith rickshaws. ASI Kanwar Lal recorded the statement of Brij Raj Sharma wherein he stated that he was working as Supervisor of B2 Block, Godown of MCD wherein said cycle rickshaws were kept as they were to be auctioned on 08.03.96 and on that date and time, he had come to check them FIR No. 55/96 Page No.2/11 3 when he found that five old cycle rickshaws were lying outside the gate of said store/godown. The accused Ramesh Chand who was chowkidar of said store, alongwith three more boys/persons whose names were subsequently revealed as Chandesar, Dharamvir and Radhey Shyam, were taking away said five cycle rickshaws after stealing them from the MCD store. On the basis of rukka prepared by ASI Kanwar Lal, FIR was got registered through Ct. Lalit Kumar and further investigation was carried out. Said cycle rickshaws were seized and accused persons were arrested in the case.
3. After completion of investigation, charge sheet in respect of offences U/s 380/411/34 IPC was prepared and filed in the Court against accused and accordingly cognizance was taken by Ld. Predecessor.
4. Complete copies were supplied to the accused persons as per compliance of section 207 Cr.PC and arguments on charge were heard. Ld Predecessor framed the charge for the offences U/s 380/34 IPC against accused persons vide order dated 13.05.98.
5. During the course of trial, accused Chandeshwar and Radhey Shyam had absconded and consequently they were declared proclaimed offender vide order dt. 10.07.06 passed by Ld. Predecessor of this Court.
6. In support of its case, the prosecution has examined three witnesses in support of its case till 20.12.2010 namely PW1 Brij Raj Sharma, PW2 Ct. Lalit Kumar and PW3 SI Kanwar Lal towards PE.
7. Thereafter, the statement of accused persons namely Ramesh Chand and Dharambir were recorded under section 281 r/w Section 313 Cr.P.C. in which the stand of the accused was of general denial and both the accused stated that they are innocent and have been falsely implicated in this case by the police officials who have deposed falsely against them. FIR No. 55/96 Page No.3/11 4 However, both the accused opted not to lead any DE.
8. I have heard Ld. APP for the State and Ld. counsels on behalf of accused persons. I have also carefully perused the material available on record.
9. PW1 Brij Raj Sharma who is complainant in this case, deposed that he is Govt employee and was working in MCD store situated at B2 Block, Keshav Puram as cycle rickshaw supervisor on 29.02.96. In the said office, they used to keep unauthroized/without license cycle rickshaws in their store. He used to check the store in the morning and evening also. On that day at about 5.30 am, he came there for checking the store as auction of the cycle rickshaws was to be taken place on 08.03.96. He saw outside the gate that there were some persons taking away 5 old cycle rickshaws. They were apprehended and out of them, accused namely Ramesh and Dharamabir were also involved and both of them were correctly identified by the said witness before the Court. He further deposed that he had raised the alarm and the police officials had reached there and all the four persons were apprehended. IO had recorded his statement Ex.PW1/A and had also prepared the site plan. All the five rickshaws were taken into police possession vide seizure memo Ex.PW1/B. All the four accused persons were arrested and their personal search were conducted vide memo Ex.PW1/C,D,E & F. Pointing out memo Ex. PW1/G was prepared. The rickshaws produced by MHC(M) during the testimony of PW1 were also correctly identified by the said witness and same were proved as Ex.P1 to P5.
In his cross examination, PW1 deposed that when he raised alarm, 34 public persons had collected there but statement of none of them was recorded by the police officials as they left the spot without disclosing their names and addresses. Personal search of the accused was conducted in his presence. He also testified that when he raised alarm, 23 police FIR No. 55/96 Page No.4/11 5 officials had come there. He denied the suggestion that no rickshaws were stolen or that accused persons were falsely implicated in this case due to misunderstanding.
PW2 Ct. Lalit Kumar deposed that he was on emergency duty with ASI Kanwar Pal and when they were returning to PS after discharging patrolling duty, they heard noise of supervisor of MCD. He was screaming 'Chor Chor'. They rushed to the spot and saw that four persons were carrying five rickshaws. All of them were apprehended by them and the said rickshaws were taken into police possession vide seizure memo. He also identified the said rickshaws Ex.P1 to P5 during chief examination.
In his cross examination, he deposed that he took tehrir to police station for registration of case. Personal search of all the accused persons was conducted by IO in his presence. Particulars on the copy of summons were recorded by him from the police file. He denied the suggestion that he did not join the investigation of this case or that the entire proceedings was conducted in the police station itself.
PW3 SI Kanwar Lal (the then ASI) deposed that he was on emergency duty during the intervening night of 29.02.96 and 01.03.96 alongwith Ct. Lalit Kumar. On that day at about 5.00 am when they reached near school situated in D2 Block where there was a store of cycle rickshaws, they saw that four persons were pulling five rickshaws by keeping the wheel on each other. One person namely Brij Raj was raising alarm behind them as 'chor chor pakdo pakdo'. They stopped two persons who were pulling those rickshaws from front side and in the meantime that person also reached and apprehended the other two thieves who were behind those five rickshaws and pulling the same. Brij Raj was working as Supervisor in the said godown. He gave statement on the basis of which he prepared rukka Ex.PW3/A and got the FIR registered through Ct. Lalit Kumar. Carbon copy of said FIR has been proved as FIR No. 55/96 Page No.5/11 6 Ex.PW3/B. The said rickshaws were seized vide memo Ex.PW1/B. He also prepared siteplan Ex.PW3/C at the instance of complainant and also prepared pointing out memo Ex. PW1/4. He further deposed that the accused persons were arrested and their personal search was conducted vide memos Ex.PW1/C to Ex.PW1/F. In his cross examination, he deposed that he did not record the statement of any official working with MCD to corroborate the evidence of the fact that complainant Brij Raj Sharma used to work as Supervisor with MCD. No public persons were passing through the spot when the accused were stopped. Seizure memo Ex.PW1/B was prepared at the spot and the accused persons as well as complainant and Ct. Lalit were present at that time. He did not seize any document from the office of MCD to show that accused Ramesh was working as chowkidar with MCD at the relevant time. He denied the suggestion that accused persons have been falsely implicated in this case at the instance of complainant Brij Raj Sharma or that Brij Raj Sharma was not the employee of MCD. He also denied the suggestion that he alongwith Brij Raj Sharma had demanded money from the accused persons who were drinking liquor near the road and on their refusal to pay the money, the present case was falsely got registered against them.
10. The main bone of contention raised by Ld. Counsels for both the accused persons is that no evidence whatsoever has been collected by investigating agency to show that PW1 namely Brij Raj Sharma was posted as supervisor in the concerned office of MCD at the relevant time which creates doubt on the prosecution story. This court afraid if the said submission is tenable in the eyes of law. The complainant Brij Raj Sharma entered into witness box as PW1 and categorically deposed that he was posted as Cycle Rickshaw Supervisor in MCD store situated at Keshav Puram at the relevant time. None of these two FIR No. 55/96 Page No.6/11 7 accused gave any suggestion to the said witness that he was not so posted in the concerned office at the relevant time. It was for the accused persons to put appropriate questions during cross examination of said witness in case they were disputing the factum regarding the posting of said witness in the concerned office of MCD at the relevant time. Having not done so, none other than these two accused persons only are to be blamed and thus, no benefit can be derived by these two accused on this ground that no document has been collected by IO regarding posting of complainant in the concerned office of MCD at the relevant time during investigation. Moreover, it is well settled law that the statement of a witness which goes unchallenged and uncrossed on any aspect, is deemed to have been admitted by the opposite party. Still if any authority is required then reference with advantage can be to the judgment reported in 1976 RLR (N) 112 titled as "Bal Kishan Vs. MCD".
11. Next bone of contention raised on behalf of accused persons is that site plan bears the FIR number whereas same was prepared before registration of FIR as deposed by IO SI Kanwar Lal as PW3 which also shows that all the documents have been prepared in the police station itself as no explanation has been furnished by the prosecution as to how the number of FIR has been mentioned on the said site plan Ex.PW3/C. Again, the said argument is totally devoid of any merit. Firstly, the accused persons ought to have asked the question from the IO i.e PW3 namely SI Kanwar Lal duly his cross examination as to how the FIR number has been mentioned in the site plan Ex.PW3/C. Secondly, it has come on record during the testimony of PW3 that Ct. Lalit had come back to the spot alongwith copy of FIR and handed over the same to him. That being so, it was prudent on the part of IO to mention the FIR number on the site plan in order to connect the same with the investigation of this case. Thus, this Court does not find any reason to disbelieve the story of prosecution or to FIR No. 55/96 Page No.7/11 8 throw out the case of prosecution merely because the FIR number has been mentioned on the site plan Ex.PW3/C.
12. Next limb of argument raised by Ld. Defence counsel for both the accused persons is that there are several contradictions in the testimonies of the witnesses examined in this case. One such contradiction pointed out by them is that PW2 deposed during chief examination that he alongwith IO were returning to police station after discharging patrolling duty whereas PW3 who is IO of the case, deposed during chief examination that he alongwith PW2 left police station for patrolling duty in the area.
13. However, I am of the considered view that some sort of discrepancies are bound to occur in the deposition of various prosecution witnesses being usual and natural and even otherwise they are found to be formal in nature and same cannot be treated as fatal for the case of the prosecution. Furthermore in the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by FIR No. 55/96 Page No.8/11 9 rational, realistic and genuine approach for administering justice in a criminal trial"
14. Ld. counsels for the accused persons have also argued that public persons were available at the spot as deposed by PW1 namely Brij Raj Sharma during his cross examination but still no effort has been made by IO to join any such public person either during recovery proceedings or during investigation which also creates doubt in the prosecution story benefit of which must go to the accused.
15. On the other hand, Ld. APP for the State has argued that independent public person namely Brij Raj Sharma who is also the complainant in this case, has been joined during the recovery proceedings and said witness has duly supported the case of prosecution on material points and thus, failure on the part of IO to join any other independent public person during the investigation, is immaterial.
16. After considering the respectful submissions made on behalf of both the sides and keeping in view the ocular evidence which has come on record, this Court finds substance in the submissions made by Ld. APP for the State. It is well settled law that Court is concerned with quality of evidence and not with the quantity. Moreover, it is relevant to note that the time of occurrence of offence is 5.00 am in the morning. At such early hours in the morning, the availability of public persons is very rare and the public persons who may have been available at that time, can not be expected to start the day by joining the investigation of a police case.
17. At this juncture, it is appropriate to refer to the provision contained in Section 134 of Indian Evidence Act which expressly provides that no particular number of witness shall in any case be required for proving any fact. In the matter titled as "Sheelam Remesh & Anr. Vs. State of A.P." reported in JT 1999 (8) S.C. 537, it was observed by Hon'ble Apex Court as under: FIR No. 55/96 Page No.9/11 10 "Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence".
Although, Ld. Counsels for the accused persons submitted that the case property has been planted upon the accused with ulterior motive as the complainant namely Brij Raj Sharma had demanded money from them. However, the accused persons have failed to prove their said defence either during the testimonies of the prosecution witnesses or otherwise. They have also opted not to lead any defence evidence to prove the said defence. There is nothing on record which may either suggest or show that PW1 namely Sh. Brij Raj Sharma had any kind of previous enmity with the accused persons which persuaded him to get them falsely implicated in this case. Rather, the facts of the present case as proved on record suggest that accused Ramesh Chand was posted as chowkidar of the store/godown belonging to MCD where from those five old cycle rickshaws had been stolen.
18. The Court also does not find any merit in the submission made by Ld. Counsel for the accused persons to disbelieve the prosecution story merely on the ground that PW2 Ct. Lalit Kumar was found in possession of copy of summons on which certain details of the present case were mentioned and which has been exhibited as Ex. PX. It is relevant to mention here that the incident took place on 29.02.96 whereas the statement of PW2 was recorded on 04.06.09 i.e after a gap of more than 13 years. In this backdrop, it was quite natural for any witness to refresh his memory and thus, nothing material illegality has been found in the said action of PW2 so as to give benefit of doubt to the accused persons in this case.
19. In the light of evidence documentary as well as oral available on record, the FIR No. 55/96 Page No.10/11 11 prosecution has been able to prove beyond shadow of doubt that both these two accused persons had stolen five cycle rickshaws from MCD store and thus, committed the offence u/s 380/34 IPC. Consequently, both these accused namely Ramesh Chand and Dharamvir are convicted for the offence u/s 380/34 IPC.
ANNOUNCED IN THE OPEN (VIDYA PRAKASH)
COURT TODAY ON 01.04.2011 (ACMM1/NW/RC/DELHI)
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