Delhi District Court
In Re: State vs Santosh on 15 July, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SAKET
COURTS: NEW DELHI
In Re: STATE VERSUS SANTOSH
F.I.R. No: 140/09
U/s 379/511 IPC
P.S. Sarita Vihar
Date of Institution of Case : 24.09.2010
Judgment Reserved for : 15.07.2013
Date of Judgment : 15.07.2013
JUDGMENT:
(a) The serial no. of the case : 355/2/10
(b) The date of commission of offence : 27.05.2009
(c) The name of complainant : Sh. Vinay Kumar Sharma
(d) The name, parentage, of accused : Santosh @ Vijay s/o John
Mashi, R/o Vill. Udhaier,
P.S. Saro, Distt. Etwah,
UP.
Present Address : As above
(e) The offence complained of : U/s 379/511 IPC
FIR No.140/09 State Vs. Santosh 1/12
(f) The plea of accused : Pleaded not guilty
(g) The final order : Accused convicted
(h) The date of such order : 15.07.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 27.05.2009 at about 05.00 p.m. at Sarita Vihar bus stop, Sarita Vihar, New Delhi accused Santosh attempted to commit the theft of Rs. 5000/ from the pocket of complainant Vinay Kumar Sharma but was caught red handed by the complainant at the spot itself and thus thereby accused committed offence punishable u/s 379/511 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide orders dated 26.05.2011 charge u/s 379/511 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case.
FIR No.140/09 State Vs. Santosh 2/12 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Vinay Kr Sharma deposed that on 27.05.2009 at about 5 PM he boarded a bus route no. 460 from Badarpur to Sarita Vihar and at Sarita Vihar he used to sell recharge coupons of cell/mobile phones. He deposed that while traveling in the bus one person also had boarded the same bus from Aali Vihar and after some time he stood beside him and he nudged him. He deposed that that person was putting his one hand on his shoulder and by the second one he was trying to take out money from his wearing jeans pant. He deposed that he was having Rs. 5000/ as he went to purchase the recharge coupons but whole sale recharge coupon shop was closed and he was returning back without purchasing recharge coupon and when he was trying to pick his pocket he caught hold his hand. He deposed that in the meanwhile they reached at Sarita Vihar bus stand and they deboarded the bus and went to the beat constable. He deposed that he handed over the accused to the beat constable namely Krishan Dutt. He deposed that after inquiring his name was revealed as Santosh. He deposed that he along with beat constable and the accused went to the PS. He deposed that he made a written complaint Ex. PW1/C. He deposed that IO prepared the site plan. He deposed that IO arrested accused and conducted his personal search vide memo Ex. PW1/A and B. He deposed that IO recorded his statement.
FIR No.140/09 State Vs. Santosh 3/12
5. During his cross examination he stated that he is matriculate. He stated that the accused put his hand in his pocket at 5 PM. He Stated that there was crowd in the bus. He stated that accused put his hand in his right side pocket of the wearing pant. He stated that he did not request to any passengers to come along with him to the police post. He admitted that the beat constable Krishan Dutt was known to him. He voluntarily stated that he used to sale recharge coupon over there that is why he was known to him. He denied the suggestion that the accused did not put his hand in his pocket. He denied the suggestion that that he was not having Rs.5000/ at that time. He denied the suggestion that accused has been falsely implicated in the present case or that he was deposing falsely.
6. PW2 Retd. SI Satpal Singh deposed that on 27.05.2009 he was posted as Duty Officer at PS Sarita Vihar and at about 07.05 p.m. he received a rukka through constable Girish sent by SI Jogender. On the basis of which he registered the FIR as Ex. PW2/A and made endorsement on rukka as Ex. PW2/B.
7. PW3 Ct. Krishan Dutt deposed that on 27.05.2009 he was posted as Ct. in PS Sarita vihar and on that day he was on patrolling duty at the bus stand sarita vihar and when he was present at the bus stand one bus of route no. 460 from Badarpur to sarita vihar stopped at the bus stand. He deposed that FIR No.140/09 State Vs. Santosh 4/12 complainant Vinay Kr. Sharma got down along with the accused. He deposed that the complainant stated that the accused was trying to take out money from his pocket. He deposed that the complainant handed over the accused to him. He deposed that in the meanwhile, Ct. Girish and SI Joginder Singh reached the spot. He deposed that SI Joginder Singh recorded the statement of the complainant. He deposed that IO prepared rukka and sent Ct. to PS for registration of FIR and after some time he came back at the spot along with original rukka and copy of FIR and same was handed over to the IO. He deposed that IO prepared the site plan. He deposed that IO arrested the accused and conducted his personal search vide memo Ex. PW1/A and B. He deposed that IO recorded his statement and thereafter he left the place.
8. PW4 Ct. Girish Chander deposed that on 27.05.09 he was posted as Ct. in PS sarita vihar and on that day he was on emergency duty along with SI Joginder Singh and when they reached at the bus stand sarita vihar they met Ct. Krishan Dutt and complainant Vinay Kr. Sharma along with accused Santosh. He deposed that the complainant narrated the story to the IO and IO recorded the statement of the complainant. He deposed that Ct. Krishan Dutt handed over the accused to the IO. He deposed that IO prepared rukka and sent him to PS for registration of FIR and after some time he came back at the spot along with original rukka and copy of FIR and same was handed over to the IO. He FIR No.140/09 State Vs. Santosh 5/12 deposed that IO prepared the site plan. He deposed that IO arrested the accused and conducted his personal search vide memo Ex. PW1/A and B. He deposed that IO recorded his statement.
9. PW5 Retd. SI Jogender Singh deposed on the same lines as deposed by PW4 Constable Girish Chand.
10. This so far is the prosecution evidence in the matter.
11. I have heard the arguments advanced at bar by the learned Defence counsel Sh. Vinay Verma as also learned APP, carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
12. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
13. It stands proved from the deposition of PW1 Vinay Kumar Sharma whose testimony was duly corroborated by other prosecution witnesses that accused Santosh had indeed tried to pick his pocket on 27.05.2009 and was caught red handed while doing so.
FIR No.140/09 State Vs. Santosh 6/12
14. PW1 Vinay Kumar Sharma (complainant) categorically proved that on 27.05.2009 while he was traveling in a bus enroute to Sarita Vihar from Badarpur the accused stood besides him and tried to remove/steal Rs. 5000/ which were lying in his jeans pant/trouser. He proved that he caught hold of the hand of the accused while he was trying to pick pocket him and thereafter handed over him to Const. Krishan Dutt. He proved his complaint made to the police in this regard as Ex. PW1/C and also proved the arrest of the accused vide Ex. PW1/A and B.
15. Hence he duly proved the incident dated 27.05.2009 as well as established the identity of the accused.
16. His deposition was duly corroborated/supported by Const. Krishan Dutt who was examined as PW3. Const Krishan Dutt proved that on the day of incident i.e. 27.05.2009 while he was present at bus stand complainant Vinay Kumar got down from the bus along with the accused and while handing over the accused to him he informed him that accused tried to pick pocket him/take out the money from his pocket.
17. FIR which was registered on the complaint of Vinay Kumar Sharma was duly proved by PW2 SI Satpal Singh as Ex. PW2/A. FIR No.140/09 State Vs. Santosh 7/12
18. Const. Girish Chander (PW4) and IO SI Jogender Singh (PW5) lend further credence to the testimony of the complainant and Const. Krishan Dutt. While deposing on the same lines as deposed by the complainant they proved the preparation of the rukka, registration of FIR and the site plan of the spot of incident vide documents Ex. PW5/A and B.
19. During the course of arguments, Ld. Defence Counsel Sh. Vinay Verma vehemently argued that the prosecution story cannot be relied upon as apart from the complainant no public witness was joined during the entire investigation. It was argued that even the bus conductor/driver or its passengers were not joined in the investigation. It was argued that as far as the testimony of police witnesses is concerned no conviction cannot be based upon their testimony as they are interested witnesses more so when Const. Krishan Dutt was already known to the complainant which he admitted during his testimony.
20. However, I do not agree with the Ld. Defence Counsel. I have no reasons to disbelieve the prosecution witnesses. I find no reasons why the complainant or for that matter the police witnesses would falsely implicate the accused. No motive has been assigned/proved by the Ld. Defence counsel for false implication of accused. There is nothing on record to suggest that the complainant, the investigating officer or the recovery witnesses were inimical to FIR No.140/09 State Vs. Santosh 8/12 the accused. In fact, there is nothing on record to suggest that the accused was known to either of them prior to the incident. Even the cross examination by the Ld. Defence counsel failed to impeach the credit of the prosecution witnesses.
21. The law is well settled that conviction can be based upon the sole testimony of the complainant/aggrieved witness if it inspires confidence. There is no rule of law that independent corroboration is required in all cases/circumstances. Reliance may be placed upon the law laid down in Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148 and State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531, Appabhai v. State of Gujarat AIR 1988 SC 696 and State of U.P. v. Anil Singh, AIR 1988 SC 1998.
22. As far as the testimony of the police witnesses is concerned there is no rule of law that police official/official witnesses ought not to be believed/relied upon. Police official/official witnesses do not suffer from any disability to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. They cannot be presumed to be less or more reliable then any other normal public witness. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. Reliance may be placed upon Izzazul V. State (Delhi) 2007 (4) RCR Criminal 315, Kala Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 1948 and J awahar v. State, (Delhi) 2007(4) FIR No.140/09 State Vs. Santosh 9/12 R.C.R.(Criminal) 336. Merely because Const. Krishan Dutt was known to the complainant as admitted by him in his testimony that by itself does not imply that the accused has been falsely implicated. The complainant duly explained as to how const. Krishan Dutt was known to him. He explained that he used to sell recharge coupons in the area and hence Const. Krishan Dutt was known to him. I find nothing wrong or abnormal in the same. Moreover the defence could not prove any motive which could have prompted Const. Krishan Dutt to collude with the complainant and falsely implicate the accused.
23. As far as the non joining of independent public witnesses/the bus passengers or its conductor or driver is concerned suffice would be to say it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. Civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC FIR No.140/09 State Vs. Santosh 10/12
696).
24. There is no requirement of law that everyone who has witnessed the oc currence, whatever there number be, must be examined as a witness. (Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Criminal 701). In Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investiga tion and (2) Normally, nobody from public is prepared to suffer any inconve nience for the sake of society.
25. At this stage, it will be pertinent to highlight answer no.1 given by the accused during his examination under Section 313 Cr.P.C. When the entire incriminating material as appearing against the accused was put to him the accused replied/gave his answer as under: "............ somebody else had infact tried to pick pocket the complainant. However that person fled away from the spot. I was standing besides the complainant and he thought it was me who was trying to remove his money".
26. The above statements which is admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. and the law laid down in Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan FIR No.140/09 State Vs. Santosh 11/12 Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315, proves the presence of the accused at the date, time and spot of incident. It also proves that he was arrested by the police at the instance of the complainant. However, his plea of having been falsely implicated does not inspire confidence. Reason is as already discussed above, I find no reasons why the complainant or the police officials would falsely implicate the accused.
27. Accordingly, in view of my above discussion, accused is held guilty under section 379 IPC r/w section 511 IPC.
28. I order accordingly.
29. Copy of the judgment be given to the accused free of cost.
30. Let he be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao) Court on 15.07.2013 MM (South East)/Delhi. FIR No.140/09 State Vs. Santosh 12/12 F.I.R. No: 140/09 U/s 379/511 IPC P.S. Sarita Vihar 15.07.2013 Pr: Ld. APP for State.
Accused is present on bail with his counsel Sh. Vinay Kumar Verma, LAC. Final arguments heard.
Vide my separate judgment, accused has been held guilty for offence u/s 379 IPC r/w section 511 IPC.
He be now heard on the point of sentence on 17.07.2013.
(Gaurav Rao)
MM (SE)/Delhi
15.07.2013
FIR No.140/09 State Vs. Santosh 13/12
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH EAST DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS Santosh F.I.R. No: 140/09 U/s 379/511 IPC P.S. Sarita Vihar ORDER ON SENTENCE 17.07.2013 Present: Ld. APP for the State.
Convict Santosh is present along with counsel Sh. Vinay Verma. Vide judgment announced on 15.07.2013 accused Santosh was convicted u/s 379 IPC r/w section 511 IPC.
The learned defence counsel has submitted for the convict that convict has been facing trial for the last almost 4 years and the same itself has been enough punishment for him. It was submitted that the convict has clean antecedents i.e. is not involved in any criminal activity. It was further prayed that accused/convict be given benefit of section 360 Cr.P.C. and either released on probation or after due admonition.
FIR No.140/09 State Vs. Santosh 14/12 Per contra, learned APP has very vehemently argued that the act of the accused is unpardonable. It was submitted that the accused deserves no leniency.
After giving my thoughtful consideration to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case, the long drawn trial and the financial condition of the accused, it shall meet the ends of justice if convict Santosh is sentenced to 6 months and 29 days simple imprisonment along with fine of Rs.2500/ for offence u/s 379 IPC r/w section 511 IPC. In default of payment of fine he shall undergo further SI of 25 days. Benefit of section 428 Cr.P.C. is given to the accused and the period already spent by him in custody be deducted from the sentence so awarded today.
I am not inclined to give him benefit of Section 360 Cr.P.C. as there is a rise in theft/snatching cases and awarding of strict sentence is necessary so that it has a deterrent affect upon the anti social elements of the society who merely to make easy money rob a person of his hard earned money/valuables.
I order accordingly.
Fine paid.
A copy of this order be given to the convict free of cost. File be consigned to Record Room.
Announced in the open court (Gaurav Rao) FIR No.140/09 State Vs. Santosh 15/12 on 17.07.2013 MM(South East ) FIR No.140/09 State Vs. Santosh 16/12