Delhi District Court
State vs . Tarun Choudhary on 27 February, 2016
IN THE COURT OF SANDEEP GARG ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH), NEW DELHI F.I.R. No: 832/15 U/s 379 IPC P.S. Saket State Vs. Tarun Choudhary Date of Institution of Case : 27.11.2015 Judgment Reserved on : 25.02.2016 Date of Judgment : 27.02.2016 JUDGMENT:
(a) The serial no. of the case : 188/2 (02406R0383092015)
(b) The date of commission of offence : 15.07.2015
(c) The name of complainant : Sh. Balender Kumar : S/o Sh. Onkar Nath Shukla, : R/o Saket City hospital, Mandir : Marg, Saket, New Delhi.
(d) The name, parentage, of accused : Tarun Chaudhary
: S/o Sh. Shoki Lal Choudhary,
: R/o H. No. 277, Price Colony,
: Jaitpur, New Delhi
Permanent Address : As above
(e) The offence complained of : U/s 379 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted U/s 411 IPC
FIR No. 832/15 State Vs. Tarun Chaudhary 1 / 20
(h) The date of such order : 27.02.2016
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 15.07.2015 at about 01.00 p.m, at Mandir Marg, Near Saket City Hospital, Saket, New Delhi within jurisdiction of PS Saket, accused Tarun Chaudhary dishonestly took out purse containing Rs. 530/ from the pocket of the complainant viz. Sh. Balender Kumar and thus, he is alleged to have committed offence punishable U/s 379 IPC.
2. Charge sheet was filed in the court and in compliance of Section Cr.P.C. accused was supplied the documents. Thereafter vide order dated 04.01.2016, charge U/s 379 IPC was framed upon the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution examined four witnesses. Thereafter, 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. He claimed that he was picked up by police officials wearing civilian clothes, from bus stand, near Madangir when he was returning after meeting his ailing fatherinlaw. He adduced DE and has examined one witness to substantiate his defence.
FIR No. 832/15 State Vs. Tarun Chaudhary 2 / 20 Brief scrutiny of the evidence recorded in the matter is as under.
4. PW01 W/ASI Kavita has deposed that on 15.07.2015, she was working as Duty Officer at PS Saket. She received rukka sent by IO HC Ishwar on the basis of which, she registered the FIR bearing no. 832/15, Ex. PW 1/A and made endorsement on the rukka which is Ex. PW 1/B. She had issued a certificate U/s 65B of the Evidence Act which is Ex. PW 1/C. This witness has not been crossexamined by the accused despite being afforded an opportunity to do so. Therefore, the testimony of this witness is deemed to be admitted.
5. PW02 complainant Sh. Balender Kumar has deposed that on 15.07.2015, at about 1:00 p.m., he left from place of his duty i.e. Saket City Hospital. He was travelling in bus plying on outer Mudrika. He was busy in buying bus ticket after taking out money from his wallet. After purchasing the ticket, when he tried to take out his wallet to keep the ticket in it, he discovered that his wallet was missing. He raised hue and cry and requested bus driver and conductor not to open the door. He also asked public persons to find out his wallet. He made a call to PCR.
6. PW02 complaiant Sh. Balender Kumar has further deposed that he started checking passengers at the front gate of the bus and during checking, his FIR No. 832/15 State Vs. Tarun Chaudhary 3 / 20 purse was found with the accused whose name was revealed as Tarun Choudhary. (The witness correctly identified the accused in the court). His wallet was containing Rs. 530/. Police officials arrived at the spot. He handed over the accused to them. He also handed over his wallet to the police officials and gave his written complaint which is Ex. PW 2/A. The police seized his wallet vide seizure memo which is Ex. PW 2/B. IO arrested the accused vide arrest memo Ex. PW 2/C and conducted his personal search vide personal search memo Ex. PW 2/D. He got his wallet released on superdari vide panchnama which is Ex. PW 2/E. The wallet is Ex. P1 and photographs of the currency notes are Ex. P2 (Colly).
7. During his crossexamination, PW02 / complainant admitted that his complaint, Ex. PW 2/A was not addressed to any particular authority. He admitted that he had not mentioned in his complaint that he discovered that his wallet was missing when he tried to keep the ticket in his wallet. He cannot tell the exact number of passengers commuting in the bus. However, the bus was heavily crowded. Police reached at the spot within 1520 minutes of making of his call. Two police officials reached at the spot. He does not know the names of those PCR officials. The police did not record statement of any public person including the bus conductor or driver in his presence.
8. PW02 complainant Balender Kumar has further stated during his FIR No. 832/15 State Vs. Tarun Chaudhary 4 / 20 crossexamination that the accused was taken to the police station by IO HC Ishwar Singh. He also went to the police station. Later on, he also went to police station. IO HC Ishwar Singh conducted queries from him and accused, but he did not join any other public person in investigation. He admitted that he had not seen the accused removing his wallet. He denied that he is deposing against the accused only on the basis of suspicion. He denied that the wallet was not recovered from the accused. He volunteered that the checking was done by him alone during which his wallet was recovered from the possession of the accused.
9. PW02 complainant Balender Kumar has admitted during his cross examination that all the writing work was done at the police station. He had signed all the documents after going through its contents. He does not remember the serial number of currency notes recovered from the accused. He does not know as to how many persons had signed on the panchnama apart from him. He admitted that he did not submit his ID proof at the time of preparation of panchnama. The police officials took the photographs of his purse in his presence which are not available on judicial record of this case. IO had not prepared site plan in his presence.
10. PW03 IO HC Ishwar Singh has deposed that on 15.07.2015, he was posted as Head Constable at PS Saket and he was on emergency duty FIR No. 832/15 State Vs. Tarun Chaudhary 5 / 20 between 8:00 a.m. to 8:00 p.m. At about 1:32 p.m., he received DD No. 34A that one thief was apprehended at gate no. 1, Saket City Hospital. He and Ct. Chote Lal went to the spot where they met complainant viz. Balender Kumar who produced the accused Tarun Choudhary (correctly identified the accused in the court) before him and told him that the accused had removed purse from his pocket while he was travelling in outer Mudrika bus. He claimed that he had apprehended the accused at the spot.
11. PW03 IO HC Ishwar Singh has further deposed that the complainant produced his purse containing Rs. 530/ i.e. one currency note of Rs. 500/ and three currency notes of Rs. 10/ each. He gave him a written complaint which is already Ex. PW 2/A. He made an endorsement on the complaint which is Ex. PW 3/A and handed over rukka to Ct. Chote Lal who went to police station and got the FIR registered. After getting the FIR registered, Ct. Chote Lal returned at the spot alongwith copy of FIR and original rukka which was handed over to him by Ct. Chote Lal. He interrogated the accused and recorded his disclosure statement which is Ex. PW 3/B. He seized the purse containing Rs. 530/ vide seizure memo which is already Ex. PW 2/B.
12. PW03 IO HC Ishwar Singh has further deposed that he arrested the accused vide arrest memo which is already Ex. PW 2/C and conducted FIR No. 832/15 State Vs. Tarun Chaudhary 6 / 20 personal search of the accused vide personal search memo which is already Ex. PW 2/D. He prepared site plan at the instance of complainant which is Ex. PW 3/C and recorded supplementary statement of the complainant. Thereafter, complainant left the spot. He and Ct. Chote Lal took the accused to the police station alongwith case property. He deposited case property in the malkhana, got the accused medically examined and thereafter, sent the accused to lockup. He recorded statements of witnesses and prepared the challan. The case property comprising purse is already Ex. P1 and photographs of currency notes are already Ex. P2 (Colly).
13. During his crossexamination, PW03 IO HC Ishwar Singh has stated that he left from PS at about 1:35 p.m. He did not make any specific departure entry in the daily diary register. They reached at the spot on a private motorcycle within 1520 minutes after receipt of DD No. 34A. Apart from the accused and complainant, 34 public persons were present. He requested those 34 public persons to join investigation, but they did not agree and left the spot without disclosing their names and addresses. No notice was served upon them for refusal to join investigation due to paucity of time. He recorded supplementary statement of complainant at the spot. He admitted that complaint Ex. PW 2/A was not addressed to the police.
14. PW03 IO HC Ishwar Singh has further stated during his cross FIR No. 832/15 State Vs. Tarun Chaudhary 7 / 20 examination that the complainant has requested in the complaint that necessary action be taken against the accused. He admitted that site plan does not bear signature of complainant. However, it was prepared at instance of the complainant. He admitted that he did not join conductor or driver of the bus during investigation. He volunteered that the bus had already left the spot when he reached there. He admitted that in supplementary statement of complainant, it is not mentioned that site plan was prepared at his instance. He admitted that he had not sealed the case property. He admitted that he had not got the purse photographed. He denied that accused did not make any disclosure statement and disclosure statement Ex. PW 3/B was recorded by him on his own. He denied that case property was planted upon the accused and the accused was falsely implicated in collusion with the complainant. The MLC was inadvertently tagged in the police file, which is Ex. PW 3/D1. He denied that the accused was unconscious at the time of his medical examination and he was forced to sign on blank documents.
15. PW04 Ct. Chote Lal deposed on lines similar to that of PW03 IO HC Ishwar Singh.
During his crossexamination, PW04 deposed that he did not make any departure entry at the time of leaving the police station. He has no knowledge, if IO had made any departure entry or not. They had gone to the spot FIR No. 832/15 State Vs. Tarun Chaudhary 8 / 20 on a motorcycle and reached there within 57 minutes after receipt of the call. Few public persons were present at the spot at that time. He admitted that purse was handed over to them by the complainant. The purse was containing one currency note of Rs. 500/ and three currency notes of Rs. 10/ each. He does not remember, if the purse contained anything else or not. As far as he remembers, the complainant was having a bus ticket, but he has no knowledge, if IO had collected the same or not. Public persons refused to join investigation. Bus had already left the spot when they reached there.
16. PW04 Ct. Chote Lal admitted during his crossexamination that bus driver or conductor were not called by the IO to the police station in his presence. IO had inquired about details of the bus from the complainant who had disclosed that the bus was plying on outer Mudrika route. The complainant did not produce any copassenger of the bus before the IO. The complaint was given at the spot itself. He took the rukka at about 2:15 p.m. and returned at the spot between 2:45 - 3:00 p.m. As far as he remembers, he and Ct. Narsing had taken the accused to the hospital for his medical examination. IO did not accompany them to the hospital. They had gone in a taxi. He does not remember registration number of that taxi. He admitted that no public person was joined at the time of arrest, conducting personal search and preparation of site plan. He denied that the accused was beaten by them. He volunteered that the accused FIR No. 832/15 State Vs. Tarun Chaudhary 9 / 20 was beaten by the public before they reached at the spot.
17. In order to substantiate his defence, the accused examined DW01 Ms. Sunita who deposed that the accused is her brotherinlaw (jijaji). She does not remember the year, but on 14th July, the accused had visited Madangir to meet her father. Thereafter, she and her younger son went to the bus stand to drop the accused. A vehicle came at the bus stand and 45 persons came out from that vehicle and forcibly took the accused alongwith them in that vehicle. She did not see registration number of that vehicle. She called her sister i.e. wife of the accused and informed her about these developments and thereafter, she returned home.
18. During her crossexamination, DW01 stated that she did not call the police regarding the incident of abduction of her brotherinlaw. She admitted that she had not accompanied the accused on 15.07.2015 at 1:00 p.m. She was not accompanying the accused at the time of the incident.
19. The court has heard the arguments advanced by Ld. Counsel for accused and learned APP appearing on behalf of the State and has perused the record with their able assistance.
20. The court is of the considered view that the prosecution has proved FIR No. 832/15 State Vs. Tarun Chaudhary 10 / 20 FIR, Ex. PW 1/A, endorsement made on rukka, Ex. PW 1/B and certificate U/s 65B of the Evidence Act, Ex. PW 1/C. The complainant has proved that on the day of the incident, his stolen purse containing Rs. 530/ was found from the possession of the accused after which he handed over the accused to the police officials and gave his written complaint, Ex. PW 2/A. He has further proved the seizure memo in respect of his purse, Ex. PW 2/B, arrest memo of accused, Ex. PW 2/C, personal search memo of accused, Ex. PW 2/D, panchnama, Ex. PW 2/E, purse Ex. P1 and currency notes, Ex. P2 (Colly).
21. PW03 IO HC Ishwar Singh and PW04 Ct. Chote Lal have proved that on receipt of DD No. 34A, they reached at Gate no. 1, Saket City Hospital, Mandir Marg, Saket, New Delhi where the complainant handed over the accused to them and produced his stolen purse containing Rs. 530/. IO has proved endorsement made by him on the complaint, Ex. PW 3/A. It has been proved that Ct. Chote Lal took the rukka to police station and got FIR registered. Thereafter, he came back at the spot. IO has proved disclosure statement, Ex. PW 3/B, seizure memo, arrest memo, personal search memo and site plan Ex. PW 3/C. Therefore, the prosecution has been able to establish the complete chain of events.
22. It is contended by Ld. Counsel for accused that admittedly, tickets FIR No. 832/15 State Vs. Tarun Chaudhary 11 / 20 for traveling in the bus, either of the complainant or of the accused, were not recovered. Admittedly, the case property i.e. the purse was not sealed by the IO. No inventory of currency notes by writing the number printed on currency notes seized was prepared. No site plan was prepared at the instance of the complainant.
23. There are glaring contradictions in the testimonies of prosecution witnesses. During his crossexamination PW2 complainant Balendra Kumar has admitted that IO did not prepare site plan in his presence and all the writing work was done at the Police Station whereas, PW03 IO / HC Ishwar Singh and PW04 Ct. Chotte Lal have deposed that IO / HC Ishwar Singh had prepared site plan, Ex. PW 3/C at the instance of the complainant which establishes falsity of the prosecution case. While PW02 Balendra Kumar has deposed that accused was taken to the Police Station by IO HC Ishwar Singh, PW03 IO / HC Ishwar Singh and PW4 Ct. Chotte Lal have deposed that the accused was taken to AIIMS hospital for medical examination alongwith Ct. Narsingh.
24. Vide order dated 24.07.2015 for release of purse and cash of Rs. 530/, this Court had directed that signatures of witnesses be obtained on Panchnama and negatives / CD be filed alongwith challan. However, no photographs of the purse were obtained and no CD / negatives have been filed.
FIR No. 832/15 State Vs. Tarun Chaudhary 12 / 20 No signatures of witnesses were obtained on the Panchnama. The numbers printed on currency notes were not recorded in the Panchnama. As per personal search memo Ex. PW 2/B, nothing was recovered from the possession of the accused during his personal search whereas as per document filed by prosecution, one mobile phone make Karbonn, one mobile phone make Intex, one Metro Card, one lighter and Rs. 200/ were recovered during the personal search of the accused which were handed over to his wife Smt. Manju. The said document has not been exhibited and Smt. Manju has not been arrayed as a witness. Wife of the accused was present when his disclosure statement was recorded, but she has not been arrayed as a witness.
25. No independent witness i.e. the bus conductor, bus driver or other commuters traveling in the bus were either joined during investigation or have been examined. Even the registration number of the bus has not been disclosed. None of the memos have been witnessed by any independent public witness. Ct. Narsingh who had accompanied Ct. Chotte Lal to the hospital while taking the accused to the hospital has not been examined. The bill of taxi in which accused was taken to hospital has not been filed and proved. The driver of taxi has not been examined.
26. Photograph of the accused on MLC shows that he was unconscious FIR No. 832/15 State Vs. Tarun Chaudhary 13 / 20 when he was medically examined. Even in the supplementary statement of the complainant recorded by the IO, it is not mentioned that site plan is prepared at his instance. These material contradictions in the prosecution story establish its falsity and glaring lapses during investigation vitiate the prosecution case. The accused deserves to be given benefit of doubt and he may be acquitted of the charges leveled against him.
27. Per contra, it is contended by Ld. APP for the State that PW02 complainant Sh. Balender Kumar is an independent public person at whose instance, the present case was registered. No explanation is forthcoming from the accused as to why the complainant will falsely implicate him. No motive has been attributed by the accused against the complainant for falsely implicating him. There is nothing on record to indicate that the complainant, the investigating officer or the recovery witnesses were inimical to the accused. In fact, there is nothing on record to even indicate that the accused was known to either of them prior to the incident. Despite rigorous crossexamination, the defence counsel has failed to impeach the credit of the prosecution witnesses.
28. Ld. APP for the State has contended that it is well settled proposition of law that minor discrepancies are bound to occur in the testimonies of witnesses. Reliance is placed upon judgment delivered by Hon'ble Supreme FIR No. 832/15 State Vs. Tarun Chaudhary 14 / 20 Court in the case of State of A.P. Vs. Kandagopaludu 2005 (3) SCC 116. It has been held by the Hon'ble Apex Court in the case of 1999 (2) JCC 624 SC that irregularities or even illegalities during investigation cannot be treated as a ground to throw out the prosecution case. It has been held by High Court of Punjab and Haryana in the case of Balraj Singh Vs. The State of Punjab 1982 Cri. L.J. 1374 that even if case property is not proved, the same is not fatal to the prosecution case. Failure on the part of IO to seal the case property and prepare site plan at the instance of the complainant are minor irregularities which do not have any bearing on the prosecution case which has been proved beyond all reasonable doubts. The accused deserves to be convicted.
29. The court is of the considered view that neither it was incumbent upon the investigating agency to collect tickets for travelling in the bus belonging to the complainant or the accused, nor it was incumbent upon the prosecution to prove the same. It is no longer res integra that it is the quality of evidence that matters and not its quantity. Although, the case property was supposed to be sealed by the IO, but failure on his part to do so is not fatal to the prosecution case as the complainant PW02 Balender Kumar has correctly identified the case property comprising the purse Ex. P1 and four currency notes, Ex. P2 (Colly).
30. Even if site plan was not prepared at the instance of the FIR No. 832/15 State Vs. Tarun Chaudhary 15 / 20 complainant, the prosecution has been able to establish the place of occurrence i.e. near Gate No. 1, Saket City Hospital, Mandir Marg road, Saket, New Delhi by adducing cogent and convincing evidence in the form of testimonies of complainant PW02 Sh. Balender Kumar, PW03 IO HC Ishwar Singh and PW04 Ct. Chote Lal. Site plan is prepared only for enabling the court to identify the place of occurrence and its topography and prosecution has been successful in doing the same.
31. Admission on the part of PW02 complainant Balender Kumar to the effect that site plan was not prepared in his presence and all the writing work was done at police station which is contrary to the depositions of PW03 HC Ishwar Singh and PW04 Ct. Chote Lal are not significant / material so as to discard the entire prosecution evidence by way of which the prosecution has been able to establish its story. Similarly, discrepancy regarding accused being straight way taken to the police station and being taken to hospital before being finally taken to the police station are also minor discrepancies which do not have any bearing on proof of the actual occurrence / incident.
32. Failure on the part of IO to obtain / file photographs of the purse and its CD / negatives is also a procedural lapse which do not have any bearing on the main occurrence. In any case, the prosecution has proved the panchnama FIR No. 832/15 State Vs. Tarun Chaudhary 16 / 20 Ex. PW 2/E and the currency notes recovered Ex. P2 (Colly). Recovery of certain articles during personal search of the accused is immaterial for adjudication of commission of the offence in question. There was no need to array or examine wife of the accused to prove the memo / inventory of articles found during personal search of the accused. As per law, disclosure statement simplicitor has got no evidentiary value.
33. Failure on the part of IO to join bus conductor, bus driver and other commuters travelling in the bus at the time of the incident is not fatal to the prosecution case as it has been deposed by all the prosecution witnesses that the bus had already left by the time IO and Ct. Chote Lal reached at the spot. It is the quality of evidence which is crucial and the quantity/number of witnesses is not of much significance. 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). There is a tendency amongst witnesses to desist from joining/assisting the investigation. Civilized people withdraw both from the victim and the vigilante and they keep themselves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696). Failure on the part of prosecution to examine Ct. Narsing who had accompanied Ct. Chote FIR No. 832/15 State Vs. Tarun Chaudhary 17 / 20 Lal to hospital for getting the accused medically examined is hardly of any significance as he was admittedly not witness to the main occurrence. It is well settled proposition of law that conviction can be based upon the sole testimony of the complainant / aggrieved witness if it inspires confidence. No independent corroboration is required in all cases / circumstances. Reference may be made to 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.
34. It was not at all necessary to obtain bill of the taxi in which the accused was taken to the hospital as it is not even disputed by the accused that he was not taken to the hospital and medically examined. It has been established from MLC Ex. PW 3/D1 that the accused was got medically examined at AIIMS Trauma Centre. There is no merit in the submissions advanced by ld. Defence counsel that the accused was unconscious when he was medically examined as it has been specifically mentioned in the column of 'Loss of occurrence - No'. Moreover, it is immaterial that the accused was conscious or unconscious at the time when his medical examination was conducted.
35. As far as the testimony of the police witnesses is concerned there is FIR No. 832/15 State Vs. Tarun Chaudhary 18 / 20 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. Reference may be made to Izzazul V. State (Delhi) 2007 (4) RCR Criminal 315, Kala Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 1948 and Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336.
36. There is no requirement of law that everyone who has witnessed the occurrence, 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 observed that it is hard these days to get association of public witnesses in criminal investigation and nobody from public is prepared to suffer any inconvenience for the sake of society.
37. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of FIR No. 832/15 State Vs. Tarun Chaudhary 19 / 20 witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
38. In view of the above discussion, the court holds that the prosecution has been successful in establishing that the accused dishonestly received or retained stolen purse of the complainant knowing or having reasons to believe the same to be stolen property, punishable U/s 411 IPC. However, the prosecution has failed to establish that the accused had himself stolen the purse from the pocket of the complainant. Therefore, accused is held guilty and is convicted for commission of offence punishable U/s 411 IPC.
Copy of the judgment be given to the accused free of charge.
Announced in the open (Sandeep Garg)
Court on 27.02.2016 ACMM (South),
New Delhi.
FIR No. 832/15 State Vs. Tarun Chaudhary 20 / 20