Delhi District Court
Fir No: 623/08, Ps Najafgarh State vs . Ashish on 19 December, 2012
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IN THE COURT OF SUDHIR KUMAR SIROHI
METROPOLITAN MAGISTRATE02 DWARKA COURT, NEW DELHI.
FIR NO: 623/08
PS: N. garh
U/s: 356/379/411/34 IPC
State
Vs.
1). Ashish, S/o Sh. Jai Narayan,
R/o RZ43 B, Gali no. 5, Ajay Park, Naya Bazar, Najagarh,
New Delhi. .......... Accused
1. Sl. No. of the case. 95/12
2. The date of offence 01.11.2008
3. The name of the complainant State
4. The name of the accused Ashish, S/o Sh. Jai Narayan,
R/o RZ43 B, Gali no. 5, Ajay Park,
Naya Bazar, Najagarh, New Delhi.
5. The offence complained U/S 356/379/411/34 IPC
6. The plea of the accused Pleaded not guilty
7. The date on which the order 12.12.2012
was reserved
8. The date of order 19.12.2012
9 . The final order Conviction
JUDGMENT:
FIR NO: 623/08, PS Najafgarh State Vs. Ashish
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Present: Ld. APP for the state.
Accused with LAC Mr. Hitender Atri.
1. The case of the prosecution is that on 01.11.2008 at about 8.45 pm at Tuda mandi in the street accused Ashish(hereinafter called accused) along with co accused Sikandar ( juvenile) forcibly snatched a mobile phone make Nokia 3110 from complainant Sh. Rakesh Kumar and on 02.11.2008 accused was found dishonestly possessing / retaining the aforesaid mobile phone knowing or having reason to believe the same to be the stolen property and thereby accused was booked under section 356/379/411/34 IPC.
2. On appearance of the accused copies were supplied to him. Charge for having committing offence punishable under sections 356/379/411/34 IPC. was framed against him, to which accused pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined eight witnesses. Prosecution witnesses correctly identified the accused.
4. Statement of the accused was recorded under section 313Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused, to which accused denied all the incriminating circumstances and did not prefer to lead evidence in his defence.
FIR NO: 623/08, PS Najafgarh State Vs. Ashish
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5. PROSECUTION EVIDENCE:
PW1 Constable Jai Prakash in his deposition stated that on 01.11.2008 he was posted at Police Station Najafgarh and on that day he was on patrolling duty and at about 11.40 pm when he reached Tura Mandi SI Mahes Soni and HC Baljit Singh met him at the spot. PW1 further deposed that SI Mahesh Soni prepared rukka and sent him for registration of FIR.
PW2 Mr. Vipin Jain deposed that he is owner of shop in the name of Sai Nath Communication for sale of mobile and he sold mobile phone Nokia 3110 to Mr. Umesh Kumar for Rs. 4450/ and he proved sale receipt ( Ex. PW2/1).
PW3 Mr. Ramesh Kumar deposed that on 01.11.1998 at about 8.45 pm when he was coming to his home in evening from his duty and when he reached Theka Wali Gali two boys came on motorcycle and they asked time from him and when he took his mobile phone in the meanwhile boy who was driving the motorcycle suddenly snatched his mobile phone from him and handed over his mobile phone to pillion rider. PW3 further deposed that pillion rider got down of the motorcycle and tried to flee from the spot. In the meantime, second boy who was driving the motorcycle was apprehended by public persons and during this some one else made a call on 100 number and after that name of driver revealed as Ashish. PW3 further deposed that second boy who took his mobile hide himself behind bus stand and after that he apprehended by him and that FIR NO: 623/08, PS Najafgarh State Vs. Ashish ..4..
accused was wearing black T - Shirt and his mobile Nokia 3110 was found from possession of accused Sikandar. PW3 proved his statement to the police ( Ex. PW3/A). PW3 further deposed that mobile phone was seized vide seizure memo Ex. PW3/B. PW3 also proved seizure of motorcycle bearing no. DL 4SBN0211. PW3 also deposed about arrest and personal search of the accused Sikandar and Ashish and the disclosure statement of both accused were recorded ( Ex. PW3/H and Ex. PW3/ I). PW3 identified the mobile phone Ex. P1and accused Ashish in court. Identity of motorcycle is not disputed by Ld. Defence Counsel. PW3 during his cross examination failed to tell how many documents were signed by him and also failed to tell what was contents of the documents. PW3 rd further during his cross examination submitted that he has studied upto 3 standard and police read over the contents of statement to him before obtaining signature. PW3 failed to identify the accused who snatched his mobile phone and PW3 further deposed that accused Ashish was not present at the spot and the police had not shown accused to him.
At this stage, when PW3 failed to identify the accused, Ld. APP for state cross examined PW3. PW3 during his cross examination by Ld. APP submitted that he saw accused Ashish for the first time in court and the accused was shown to him by police officials on 15.03.2012 at the time of his deposition.
PW4 Mr. Naresh Chand LDC from Delhi Transport Authority brought record of motorcycle no. DL 4SBN 0211 ( Ex. PW4/A).
FIR NO: 623/08, PS Najafgarh State Vs. Ashish
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PW5 HC Baljit Singh in his deposition submitted that on 01.11.2008 he was posted at Police Station Najafgarh as Head Constable and on that day he joined investigation with IO Mahesh Soni and went to the spot. PW5 further deposed that complainant Mr. Ramesh Chand was present at the spot and he has already apprehended accused with motorcycle bearing no. DL 4SBN 0211. PW5 further deposed that complainant handed over accused and motorcycle to the IO and the complainant told IO two persons including accused were coming on said motorcycle and asked him about the time and when he took out his mobile phone accused Ashish snatched his mobile phone and he handed over the mobile phone to accused Sikandar who fled away from spot and concealed himself behind the bus stand and thereafter he apprehended accused Sikandar at the instance of complainant. PW5 further deposed that FIR was registered on the statement of complainant and rukka was prepared by the IO on the basis of complaint and got FIR registered through him. PW5 further deposed that IO prepared site plan at the instance of complainant and also deposed about seizure of mobile phone, arrest and personal search of both the accused and seizure of motorcycle. PW5 during his cross examination submitted that 34 persons were present at the spot and complainant has already apprehended accused when he reached at the spot with IO and the accused Sikandar did not try to flee from the spot as he was not aware of coming of IO towards him.
PW6 Retired ASI Hukum Chand proved FIR ( Ex. PW6/A) on the basis of FIR NO: 623/08, PS Najafgarh State Vs. Ashish ..6..
rukka.
PW7 Mr. Umesh Kumar proved ownership of mobile phone (Ex. PW2/1) and identified mobile as Ex. P1 and stated that he handed over mobile phone to his brother PW3.
PW8 SI Mahesh Soni deposed in line of PW5 and during cross examination PW8 failed to tell about mentioning of time on arrest memo of accused.
6. ARGUMENTS:
Ld. APP for state submitted that it has been proved by the deposition of PW3, PW5 and PW8 that accused Ashish forcibly snatched mobile phone from the complainant. Therefore, accused Ashish has committed theft of mobile belonging to the complainant and took mobile phone from the possession of complainant dishonestly without his consent. Therefore, accused Ashish has committed offence of theft. Ld. Defence Counsel on the other hand submitted that prosecution has failed to prove guilt of accused beyond reasonable doubt. Ld. Defence Counsel further submitted that:
a) No public person has been made witness in the case.
b) Complainant failed to identify the accused during this cross examination and complainant has specifically stated that " I can not identify the accused who snatched mobile phone from him". Therefore, when the complainant himself not identifying the accused, therefore, identity of accused is not established, hence FIR NO: 623/08, PS Najafgarh State Vs. Ashish ..7..
accused may be acquitted.
Now I am dealing with contentions raised by Ld. Defence Counsel one by one: Contention A: Admittedly, no independent witness is made by prosecution In, "Balraj Singh Vs. State of Punjab" the Hon'ble Punjab & Harayana High Court as well as in Md. Altaf Vs. State of NCT, dated 30.11.07 the Hon'ble Delhi High Court held that "in case, independent witness was available but not joined by the investigating officer the story is not to be ignored. Question is why police officials have deposed against the appellants/accused when he had no enmity with the police officials. In case independent witness is not joined then evidence on file is to be scrutinized with great caution and mere nonjoining of independent witness is not fatal. Therefore this contention of Ld Defence Counsel is not plausible. Contention B: PW3 Mr. Ramesh Kumar ( complainant) had categorically stated that when he took his mobile phone then boy who was driving motorcycle suddenly snatched mobile phone from his hand and thereafter he handed over it to pillion rider. PW3 also stated that name of driver of motorcycle was Ashish. PW3 also identified accused Ashish in the court during his examination in chief on 15.03.2012 PW3 has also categorically stated that accused Ashish after snatching mobile phone handed over it to the accused Sikandar ( juvenile) but FIR NO: 623/08, PS Najafgarh State Vs. Ashish ..8..
PW3 during his cross examination on 26.04.2012 refused to identify accused Ashish and stated that " I can not identify the accused who snatched mobile phone from me". There are two contradictory statements of PW3 i.e during his examination in chief on 15.03.2012, in which he has categorically stated that accused Ashish snatched mobile phone from him but when he again appeared in the court on 26.04.2012 for cross examination, he resiled from his earlier statement and stated that he can not identify the accused who snatched mobile phone. The law regarding hostile witness is very clear as laid by Hon'ble Apex Court in Bhajju Vs State of M.P (2012) 4 SCC 327, which is as under:
''Regarding the admissibility and probative value of the testimony of hostile witnesses, normally when a witness deposes contrary to the stand of the prosecution and his own statement recorded under section 161 CrPC, the prosecutor, with the permission of the court can pray to the court for declaring that witness hostile and for granting leave to crossexamine the said witness. If such a permission is granted by the court then the witness is subjected to cross examination by the prosecutor as well as an opportunity is provided to the defence to crossexamine such witnesses, if he so desires. In other words, there is a limited examinationinchief, crossexamination by the prosecutor and cross examination by the counsel for the accused. It is admissible to use the examination in chief as well as the crossexamination of the said witness insofar as it supports the case of the prosecution.
It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154, Evidence Act, enables the court, in its discretion, to FIR NO: 623/08, PS Najafgarh State Vs. Ashish ..9..
permit the person, who calls a witness, to put any question to him which might be put in cross examination by the adverse party.
The view that the evidence of the witness who has been called and cross examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution.'' In view of the judgment passed by Hon'ble Apex Court and in view of the well settled law that hostile witness can be believed if the evidence of hostile witness is corroborated by other reliable piece of evidence and in the case in hand testimony of PW3 is corroborated by testimony of PW5 HC Baljit Singh and PW8 SI Mahesh Soni who categorically stated that PW3 has told police official ( PW5 and PW8) two persons including accused Ashish came on motorcycle and asked him about the time from him and when he took his mobile phone from his pocket and accused Ashish snatched the mobile phone and handed over mobile to his friend Sikandar and both accused were arrested from spot. Therefore, statement of PW3 regarding snatching of mobile phone and identity of accused Ashish which was admitted by PW3 during his examination in chief is corroborated by deposition of PW 5 and PW8. In addition to this accused Ashish was apprehended on spot and same is also established by testimony of PW3, PW5 and PW8 and just not mentioning of time on arrest memo FIR NO: 623/08, PS Najafgarh State Vs. Ashish ..10..
of accused Ashish is not fatal for prosecution when all other evidence on record pointing towards commission of offence by accused. Therefore, I do not find any infirmity in believing statement of PW3 that the accused Ashish snatched mobile phone from him when PW3 took mobile phone for telling time to accused Ashish and after snatching mobile phone, mobile phone was handed over to accused Sikandar who is juvenile regarding whom separate case is going on in Juvenile Justice Board. Hence, this contention of Ld. Defence Counsel is without merit.
7. Discussion: After dealing with contentions raised by Ld. Defence Counsel and after going through evidence on record I am of opinion that statement of PW3 is corroborated by statement of PW5 and PW8 and it has been categorically established that accused Ashish dishonestly removed mobile phone out of the possession of PW3 without his consent. Therefore, accused Ashish has committed offence of theft as described under section 378 IPC and punishable under section 379 IPC. As accused snatched mobile phone from the complainant ( PW3),therefore, accused used criminal force in the offence of theft and mobile was snatched forcibly without the consent of PW3. Therefore, offence under section 356 IPC is also made out. As accused was arrested at the spot therefore the offence under section 379 IPC is made out and offence under section 411 IPC is not made out.
FIR NO: 623/08, PS Najafgarh State Vs. Ashish
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8. FINAL VERDICT:
Therefore, accused is convicted of the offence under section 379/356 IPC.
Let accused be heard on quantum of sentence.
Announced in the open court on 19.12.2012. (Sudhir Kumar Sirohi) M M02/Dwarka Court, New Delhi.
FIR NO: 623/08, PS Najafgarh State Vs. Ashish