Delhi District Court
State vs . Ganga Prasad & Anr. on 22 February, 2013
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (SOUTH)07, NEW DELHI
FIR No. : 284/2002
U/s : 380/411/34 IPC & 25 Arms Act
PS : Mehrauli
State Vs. Ganga Prasad & Anr.
JUDGMENT
a The Sl. No. of the case : 1146/1/02
b The date of commission : Somewhere between 25.04.2002 &
: 09.06.2002
c The date of Institution of the case : 09.08.2002
d The name of complainant : Jitender Pal Singh Walia
e The name of accused : 1. Ganga Prasad
: S/o Sh. Guruddin,
: R/o Village Tota Nagar, P.S. Bhivratn
: Gaj, District Rai Bareili, UP.
: 2. Ram Sumer @ Badkau S/o Sh.
: Ganesh, R/o Village Bhaun Sahaipur,
: P.S. Jamu, District Sultanpur, UP.
f The offence complained of : 380/411/34 IPC & 25 Arms Act
g The plea of accused : Pleaded not guilty
h Arguments heard on : 19.02.2013
i The final order : Convicted
j The date of judgment : 22.02.2013
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused Ganga Prasad and Ram Sumer have been sent for trial on the FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 1 of 23 allegations of the complaint Jitender Pal Singh Walia that on an unknown date and time, between 25.04.2002 and 09.06.2002, from H. No. 48, Village Sultanpur, New Delhi, within the jurisdiction of P.S. Mehrauli, they both, in furtherance of common intention, dishonestly took away a revolver bearing no. F.G.3587 Kanpur made small arm, 25 cartridges, Rs. 30,000/ cash, golden jewellery including golden bangle weighing about 50 gms, ladies set weighing about 60 gms from the house of the complainant, used as human dwelling and for custody of property, without his consent and thereby committed offences punishable u/s 380/34 IPC, 25 Arms Act. Investigation was conducted during which accused Ganga Prasad is stated to have voluntarily got recovered three cartridges from his house situated at Village Tota Nagar, P.S. Shivratan Ganj, District Rai Bareily, Uttar Pradesh and accused Ram Sumer is stated to have voluntarily got recovered revolver bearing no. F.G.3587, 32 MKI Field Gun Kanpur 2000, from a room situated at Roshanpura, opposite BDO Office, New Delhi. Upon completion of investigation, chargesheet was filed in the court on 09.08.2002.
2. Charge u/s 380/34 IPC, 25 Arms Act and in the alternative, u/s 411/34 IPC, 25 Arms Act was framed upon both the accused on 23.08.2002 to which they pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined seven witnesses.
4. PW1 is the complainant Jitender Pal Singh Walia. He has deposed that on FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 2 of 23 09.06.2002, he could not find his licensed revolver, Rs. 3032,000/, golden jewellery weighing about 910 gms and 2025 live cartridges which were kept inside a bed. The golden jewellery included one golden bangle and one ladies set. He had employed both the accused persons for doing the job of Plaster of Paris fabrication in his house since May, 2002. He had doubts that both the accused persons had stolen the aforementioned articles and money from his residence as they were working in his house at the time when the theft took place. He lodged a complaint, Ex. PW1/A on 12.06.2002. The witness correctly identified both the accused persons present in the court during trial. He alongwith police officials went in the area of Najafgarh, where the sister of accused Ganga Prasad told them that the accused Ganga Prasad and Ram Sumer are having a red colour bicycle and both of them will be coming to that area. On 12.06.2002, at about 01:3002:00 pm, both the accused came on a red colour bicycle in the area of Najafgarh from where, they were apprehended by the police in his presence. Both the accused made disclosure statements in his presence which are Ex. PW1/B & Ex. PW1/C respectively. The police took both the accused to their house. His revolver and three cartridges were got recovered by accused Ram Sumer from his possession and three cartridges were got recovered by accused Ganga Prasad which were seized vide seizure memos, Ex. PW1/D & Ex. PW1/E respectively. Both the accused also pointed out the place of occurrence to the IO in his presence vide pointing out memos, Ex. PW1/F & Ex. PW1/G respectively. IO prepared a sketch of the FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 3 of 23 revolver (make Kanpur Small Arms Factory .32 bore) and cartridges, recovered in his presence from the possession of accused Ram Sumer vide memo, Ex. PW1/H. He also prepared sketch of the cartridges recovered from the possession of accused Ganga Prasad vide memo, Ex. PW1/I. Both the accused persons were arrested vide arrest memos, Ex. PW1/J & Ex. PW1/K respectively and their personal search was conducted vide personal search memos, Ex. PW1/L & Ex. PW1/M respectively. The witness correctly identified the case property comprising of the revolver, Ex. P1, six cartridges, Ex. P2 to Ex. P7 in the court during trial.
During cross examination by the Ld. defence counsel, the witness has stated that both the accused and two other persons were working in his bedroom at the time of theft. He and his family members used to leave their house while the labourers used to be working. Both the accused did not turn up for work from 07.06.2002 onwards. He admitted that the accused were not working in the bedroom from where his articles went missing. He checked the stolen articles alongwith his family on 08.06.2002 at about 606:30 pm. He has admitted that he did not inform the police about the theft till 08.06.2002 as he wanted to search for the stolen articles and wanted to be sure that theft had actually taken place. He alongwith his son went to P.S. Mehrauli for lodging the complaint on the next day. The police officials comprising of HC Ved Prakash and Ct. Sube Singh came to his house and did some writing work while investigating the case. However, he did not sign any document at that time. At 02:3003:00 pm, they left for the house of the FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 4 of 23 accused at Chattarpur. The landlord of the accused accompanied them to a place near Sena Bhawan where relative of the accused was reportedly residing. The recovery was effected from builder's house. He does not remember the exact number of the house. The pillows were lying on a table from beneath which the stolen articles were found. Other bedding including bed sheet and pillows was also lying. The seized articles were sealed with the seal of BS, which was made of brass. The police carried out some writing work at the spot. He does not remember if the police recorded statement of any other witness. He can not say if police took signatures of his son on certain documents. He does not remember if the seizure memos were signed by any other police official/witness or not. He denied that no other relative was present. He denied that the recovery was planted upon the accused persons and they had been falsely implicated in the case. He denied that the accused were not working at his house. He can not tell the date on which the site plan was prepared.
5. PW2 is HC Abhay Singh. He has deposed that on 12.06.2002, he had joined investigation of the case alongwith IO. At about 06:30 pm, they reached at Najafgarh, near BDO Office. IO was already having secret information that the accused persons in this case will be coming to Najafgarh. Accused came there and the complainant Jitender Pal Singh Walia identified both the accused persons. Both the accused persons were arrested at the instance of the complainant vide arrest memos, Ex. PW1/J & Ex. PW1/K respectively. Personal search of both the FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 5 of 23 accused persons was conducted vide personal search memos, Ex. PW1/L & Ex. PW1/M respectively. Both the accused made disclosure statements which were recorded by the IO, Ex. PW1/B and Ex. PW1/C respectively. Three cartridges were recovered from the house of accused Ganga Prasad which were lying below a pillow and the same were seized vide seizure memo, Ex. PW1/D. Pursuant to the disclosure statement given by accused Ram Sumer, one revolver .32 Bore and three cartridges were recovered from his house which were seized vide seizure memo, Ex. PW1/E. Sketch of the revolver and cartridges was prepared by the IO which is Ex. PW1/H. The revolver was black in colour and the words 'Kanpur 2000' were engraved upon it. Sketch of three cartridges recovered from the possession of accused Ganga Prasad was prepared by IO which is Ex. PW1/I. IO also prepared pointing out memos at the instance of accused Ram Sumer and Ganga Prasad which are Ex. PW1/F & Ex. PW1/G respectively. The case property was sealed in his presence with the seal of BS. The witness identified both the accused present in the court and the case property comprising of the revolver and six cartridges, Ex. P1 to Ex. P7.
During cross examination by the Ld. defence counsel, the witness has stated that on 12.06.2002, he was present at Village Sultanpur alongwith HC Ved Prakash, HC Sube Singh and the complainant. At about 06:00/06:30 pm, a secret information was received about the accused persons. The complainant also informed them about the accused persons. The accused persons were arrested near FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 6 of 23 BDO office when they were going on a road. The stolen articles were got recovered by the accused persons from their rooms. The accused disclosed that the property, from where the stolen articles were recovered, was his own house. Except the complainant, no public person was present at the time of the recovery. Seal after use was handed over by the IO to the complainant. The arrest memo of the accused was prepared at about 06:00 pm. They were informed about the presence of the accused at Najafgarh, by the complainant.
6. PW3 is Ct. Sukhdev. He has deposed that on 31.07.2002, he received two sealed parcels from the MHC(M) which were sealed with the seal of BS and he deposited the said parcels in FSL office at Malviya Nagar. After depositing the parcels, he handed over one copy of the road certificate to the MHC(M). The parcels were not tampered while they were in his possession.
7. PW4 is SI Shyam Pal Singh, who being duty officer, proved FIR, Ex. PW4/A.
8. PW5 is Puneet Puri, Senior Scientific Assistant, Ballistics, Forensics Science Laboratory. He has deposed that on 31.07.2002, two parcels sealed with the seal of BS, bearing particulars of the case, were deposited in the FSL. The seals on the parcels were intact and were similar to the specimen seal. Upon opening the first parcel, one revolver .32" calibre bearing no. FG3587 and three .32" cartridges were found which were later marked as Ex. F1 & Ex. A1 to A3 respectively. On opening the second parcel, three .32" cartridges were found and were marked as FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 7 of 23 Ex. A4 to Ex. A6. Upon examination, the revolver .32" calibre was found to be in working condition. Test fire was conducted successfully. Cartridge, Ex. A1 got misfired. Cartridges, Ex. A2 to Ex. A6 were live and one cartridge, Ex. A2 was test fired with revolver, Ex. F1. The revolver, Ex. F1 is a fire arm and cartridges, Ex. A1 to Ex. A6 are ammunition as defined under the Arms Act, 1959. The exhibits were resealed with the seal of PP, FSL, Delhi. His report is Ex. PW5/A.
9. PW6 is IO HC Ved Prakash. He has deposed that on 09.06.2002, investigation of this case was assigned to him. The duty officer SI Shyam Pal handed over the original rukka, Ex. PW1/A and copy of FIR, Ex. PW4/A to him. Complainant Jitender Pal Singh Walia also met him in the P.S. Thereafter, he alongwith the complainant reached at H. No. 48, Village Sultanpur where he inspected the spot and prepared site plan, Ex. PW6/A at the instance of the complainant. On 12.06.2002, the complainant met him and told him that the accused persons were residing somewhere in the area of Najafgarh. He alongwith complainant Jitender Pal Singh Walia, HC Abhay Singh and Ct. Sube Singh went to Najafgarh area where he apprehended both the accused persons at the pointing out of the complainant. Upon interrogation, both the accused persons made disclosure statements, Ex. PW1/A & Ex. PW1/C. In their disclosure statements, the accused persons disclosed that they had stolen one revolver loaded with six live cartridges from the house of the complainant while they were doing the work of Plaster of Paris there. In pursuance to his disclosure statement, accused Ganga Prasad FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 8 of 23 voluntarily got recovered three live cartridges from his residence at Roshanpura, near BDO Office, Najafgarh which was kept below a pillow. The revolver was seized, tied in a piece of old cloth. 'Long lepua 32' was engraved on the bottom of the recovered cartridges. He prepared a sketch of the recovered cartridges which is Ex. PW1/I. The cartridges were kept in a white colour parcel and seized vide seizure memo, Ex. PW1/D. The seal after use was handed over to the complainant.
The accused Ram Sumer got one revolver bearing no. FG3587 and three live cartridges, voluntarily recovered from his residence situated at Roshanpura, near BDO Office, Najafgarh. The revolver was kept under a bed. The revolver and the cartridges were identified by the complainant and he prepared a sketch of the same which is Ex. PW1/H. Thereafter, the revolver and the cartridges were kept in a white colour pullanda and sealed with the seal of BS. The case property was seized vide seizure memo, Ex. PW1/E. Both the accused persons were arrested vide arrest memos, Ex. PW1/J & Ex. PW1/K and their personal search was conducted vide personal search memos, Ex. PW1/L & Ex. PW1/M. The accused persons pointed out the place of theft and memos, Ex. PW1/F & Ex. PW1/G were prepared. He recorded the statements of HC Abhay Singh, Ct. Sube Singh and supplementary statement of the complainant on 12.06.2002. He also collected copy of the Arms license belonging to the complainant which is Mark X1 & Mark X2.
On 31.07.2002, the recovered revolver and cartridges were sent to FSL, Malviya Nagar through Ct. Sukhdev vide RC No. 4321. He recorded the statement FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 9 of 23 of Ct. Sukhdev. He obtained result from FSL, Malviya Nagar and the report of Ballistic Expert is Ex. PW5/A. He obtained sanction u/s 39 Arms Act from the DCP (South) Mr. P. Kamraj, which is Mark X3. Upon completion of the investigation, he filed the chargesheet.
During cross examination by the Ld. defence counsel, the witness has deposed that the complainant had come to the police station on 09.06.2002. The complainant was present alongwith them at the time of recovery of the stolen property. However, no independent witness was present there. He had requested some neighbourers to join investigation, but they refused. The tenanted rooms of the accused persons were situated in the same street. He denied the suggestion that the accused persons were not working in the house of the complainant on the relevant date and time.
10. PW7 is P. Kamraj, who proved sanction u/s 39 Arms Act, Ex. PW7/A.
11. All the incriminating evidence was put to both the accused and their statements U/s 281 Cr.P.C. were recorded during which they denied their involvement in the offence stating that they were not paid wages for their work. However, they admitted that they were working in the house of the complainant and doing POP work in the month of May, 2002. They also preferred to adduce defence evidence.
12. In order to substantiate his case, accused Ganga Prasad examined DW1 Sri Devi. She has deposed that accused Ganga Prasad is her cousin brother. The FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 10 of 23 accused Ganga Prasad, his wife Shanti, Ram Sumer, Ajay Pal and a few other labourers were doing POP work at the residence of one Sardar at Mehrauli. However, she does not know the name of the employer. In the year 2002, her cousin Ganga Prasad approached her and asked for financial help saying that he has not been paid salary by Sardarji since the last 3 months. He was short of money and his children were starving. She suggested him to leave the job. Later on, in the month of June, 2002, Sardarji came twice or thrice to her house alongwith few other persons and requested her to send her brother Ganga Prasad to finish the work of POP at his residence. The Sardarji also further assured that he would pay the entire amount after completion of the work. However, he did not let her brother join the work again. Thereafter, Sardarji came again. He abused her and gave beatings on her back and other parts of the body, with a lathi. On the intervention of her niece, Sardarji threw her away as a result of which she sustained fracture on her shoulder. Sardarji again came back alongwith police officials and took her brother alongwith them. They were also threatened that if the work of Sardarji is not completed, then her brother would be implicated in some false case. She proved copy of her Voter I Card, Ex. DW1/A. During cross examination by the Ld. APP for State, the witness has stated that she is not a summoned witness and has been asked to depose by her brother/accused Ganga Prasad. She does not know the address of Sardarji at whose house, accused Ganga Prasad did POP work. However, the house of Sardarji was FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 11 of 23 situated in Mehrauli. She does not remember the date or month, but it might be sixth month of the year 2002, when the Sardarji had come to her house and asked her brother to complete the work. She had not lodged any complaint to the police officials about the said incident. She had visited the P.S., but she found Sardarji and some police officials present there, who misbehaved with her and abused her. She did not approach any senior police officials for lodging any complaint. She was treated at a private clinic of Dr. Rohit. She denied that she was not present at the time of the incident.
13. The court has heard the submissions made by Ld. APP for the state as well as the Ld. defence counsel.
14. Ld. APP for the state submits that both the accused persons are liable to be convicted for offences charged as the prosecution has been able to bring home guilt of both the accused persons.
15. On the other hand, it is contended by the Ld. defence counsel that there are material contradictions in the testimonies of the prosecution witnesses which expose the falsity of the prosecution case. Both the accused deserve to be acquitted of the charges leveled against them.
16. It is contended by Ld. counsel for accused Ram Sumer that PW1 Jitender Pal Singh Walia had deposed during examination in chief that the accused persons were arrested on 12.06.2002 at about 01:3002:00 pm whereas, during cross examination, he deposed that the accused persons were arrested on 10.06.2002 at FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 12 of 23 about 01:3002:00 pm. Thus, PW1 is not a trustworthy witness and his testimony can not be relied upon and deserves to be discarded.
17. Secondly, it is contended by Ld. counsel for accused Ram Sumer that there are contradictory versions regarding the source of information about the accused persons. In his statement recorded u/s 161 Cr.P.C., PW1 had stated that information about the accused persons was received by the police through a secret informer. During his examination in the court, PW1 deposed that the sister of accused Ganga Prasad told them that the accused persons were having a red colour bicycle. PW2 HC Abhay Singh deposed that secret information was received by IO that the accused persons will come to Najafgarh area. During his cross examination, he deposed that at about 66:30 pm, secret information has been received. Complainant had informed them about the accused persons. PW6 IO HC Ved Prakash deposed that on 12.06.2002, the complainant met him and informed him that the accused persons are residing somewhere in the area of Najafgarh. These material contradictions regarding the source of information about the accused persons caste serious aspersions on the veracity of the prosecution case and expose its falsity.
18. Thirdly, it is contended by Ld. counsel for accused Ram Sumer that on one hand, PW2 HC Abhay Singh deposed that the houses from where the stolen articles were recovered, were owned by the accused persons, on the other hand PW6 IO HC Ved Prakash has deposed that the accused persons were residing in FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 13 of 23 tenanted rooms. PW1 Jitender Pal Singh Walia had deposed that one revolver and three cartridges were got recovered by accused Ganga Prasad and three cartridges were got recovered by accused Ram Sumer. However, he again improved his statement and deposed that one revolver and three cartridges were got recovered by accused Ram Sumer and three cartridges were got recovered by accused Ganga Prasad. These contradictions and improvements impeach the credibility of the prosecution witnesses and make them unworthy of credit.
19. Fourthly, it is contended by Ld. counsel for both the accused that no public/independent witness was examined by the IO. PW1 Jitender Pal Singh Walia deposed during cross examination that a boy who knew about the house of sister of accused Ganga Prasad, had taken them to her house. However, the said boy was not examined. PW2 HC Abhay Singh at one point stated that no public witness was available and at another point, he stated that they had requested the neighbours to join investigation, who declined. PW6 IO HC Ved Prakash deposed that no independent witnesses were present at the time of recovery. However, he had requested some neighbourers to join the proceedings, who declined. Non joining of independent public witnesses despite their availability creates serious doubts upon the credibility of the prosecution case and the accused deserve to be given benefit of doubt.
20. Fifthly, it is contended by Ld. counsel for accused Ganga Prasad that PW1 Jitender Pal Singh Walia stated that the accused Ganga Prasad, his wife and FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 14 of 23 accused Ram Sumer were doing POP work at his house and they left the work without completing the same. However, he intentionally concealed that the other labourers were still working in his house. This material concealment makes him unworthy of credit. Moreover, admittedly, nobody witnessed commission of the alleged offence of theft from the house of the complainant.
21. Sixthly, it is contended by Ld. counsel for accused Ganga Prasad that DW1 Sri Devi deposed that her brother/accused Ganga Prasad was not paid for long time because of which her family was on the verge of starvation. She further deposed that the complainant visited her house to call Ganga Prasad after he had left the work at the house of the complainant. The version of DW1 is corroborated by the admission of PW1 Jitender Pal Singh Walia who too deposed that he had gone to the house of the sister of the accused Ganga Prasad on 12.06.2002. This establishes that the accused has been falsely implicated in the present case by his employer Jitender Pal Singh Walia who had not paid him his wages and the present case was fabricated to cover his own misdeeds.
22. Seventhly, it is contended by Ld. counsel for accused Ganga Prasad that in his complaint, Ex. PW1/A, the complainant Jitender Pal Singh Walia had stated that he checked for his articles on 09.06.2002, whereas during cross examination, he has deposed that he had checked for his articles on 08.06.2002 at about 66:30 pm and discovered that his articles were missing. However, he did not lodge the complaint on the same day as he wanted to be sure about theft of the articles before FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 15 of 23 lodging the complaint and he lodged the complaint only on 09.06.2002. This establishes that PW1 Jitender Pal Singh Walia is unworthy of credit.
23. Eighthly, it is contended by Ld. counsel for accused Ganga Prasad that it is highly improbable and incredible that a person whose family is on the verge of starvation, will retain three bullets with him for 45 days to be finally apprehended with the same. Moreover, as per the prosecution story, the complaint was lodged by the complainant on 09.06.2002 whereas he visited the police station only on 12.06.2002 although he knew about the addresses of the accused persons. The prosecution has failed to give any reasons as to why the complainant did not act between 09.06.2002 & 12.06.2002. Therefore, the prosecution story is improbable, incredible and deserves to be discarded.
24. On the other hand, it is contended by Ld. APP for State that the offence took place in the year 2002 and some loss of memory on part of the witnesses is quite natural. However, minor discrepancies regarding the date of arrest of the accused persons is not fatal to the prosecution case particularly in view of the other cogent and convincing evidence adduced by the prosecution. Reliance is placed upon judgment delivered by a Division Bench of Hon'ble High Court of Delhi in the case of 'Mohd. Naseem Vs. State 167 (2010) DLT 104 (DB)' wherein it has been observed that normal discrepancies or errors do creep in because every human being has human failings and limitations. It has to be ascertained whether the prosecution has proved its case by looking at broad probabilities of the case and FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 16 of 23 thereafter, to see and identify embellishments and then determine whether embellishments have dented broad probabilities proved by the prosecution. Where a fool proof case without any embellishment or variation is brought before a court, that by itself becomes a ground to suspect credibility of case.
25. Secondly, it is contended by Ld. APP for State that there is no contradiction regarding the source of information about the accused persons. PW1 Jitender Pal Singh Walia was aware about the addresses of the accused. Moreover, the source of secret information is not required to be disclosed by the prosecution. All the witnesses i.e. PW1 Jitender Pal Singh Walia , PW2 HC Abhay Singh and PW6 IO HC Ved Prakash have been consistent in stating that the complainant was aware about the addresses of the accused which was disclosed by him to the IO.
26. Thirdly, it is contended by Ld. APP for State that it is immaterial as to the ownership of the houses from where the recovery of the stolen articles was affected. The arguments advanced by Ld. counsel for the accused persons is misconceived. When the prosecution has been able to prove recovery of the stolen articles from the possession of the accused persons by adducing cogent and convincing evidence, the question of ownership of the houses from where the recovery was affected is irrelevant and immaterial. No improvement was made by PW1 Jitender Pal Singh Walia. From the appreciation of the statement of PW1, it is established that he had mentioned about the correct recovery in his examination in chief itself and there is no ambiguity in the said statement. FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 17 of 23
27. Fourthly, it is contended by Ld. APP for State that as per the testimonies of PW2 HC Abhay Singh and PW6 IO HC Ved Prakash, the neighbours were requested to join investigation who declined. Therefore, no public witnesses could be joined during investigation. Ld. APP for State also places reliance upon judgment of Hon'ble Supreme Court in the case of 'Appabhai & Anr. Vs. State of Gujarat AIR 1988 SC 696' wherein it has been held as under :
"In the light of these principles, we may, now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case can not be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilance. They keep themselves away from the court FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 18 of 23 unless it is inevitable. They think that crime like civil dispute is between two individuals of parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness, must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The prosecution can not be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."
28. Fifthly, it is contended by Ld. APP for State that there is no concealment on any material aspect by the complainant. The complainant has stated in his testimony that while the accused persons left the work of POP at his house midway, the other labourers continued to work. Therefore, the contention advanced by the Ld. defence counsel is not tenable.
FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 19 of 23
29. Sixthly, it is contended by Ld. APP for State that the defence of the accused regarding false implication by the complainant due to non payment of wages of the accused has not been substantiated on record. The accused themselves have preferred not to step into the witness box to establish that they were not paid wages by their employer/complainant. A bald statement regarding visit of the complainant to her house, made by DW1 Sri Devi does not in any manner prove the defence of the accused persons that they were not paid wages by the complainant and were falsely implicated to cover his own misdeeds.
30. Seventhly, it is contended by Ld. APP for State that there is no contradiction in the testimony of complainant/PW1 Jitender Pal Singh Walia. He has deposed that on 08.06.2002 at about 66:30 pm, he discovered that his articles were missing and he wanted to be sure about theft of the articles before lodging the complaint. Therefore, he lodged the complaint on the next day i.e. on 09.06.2002. In any case, loss of memory regarding the dates is quite natural as the witness was examined after a lapse of appreciable time. Moreover, minor contradictions regarding the date are quite natural. Reliance is placed upon judgment of the High Court delivered by a Division Bench of Hon'ble High Court of Delhi in the case of 'Mohd. Naseem Vs. State 167 (2010) DLT 104 (DB) (Supra)'.
31. Eighthly, it is contended by Ld. APP for State that the plea regarding mere probabilities regarding retention of the stolen property for 45 days despite being on the verge of starvation, is not tenable keeping in view the cogent and convincing FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 20 of 23 evidence adduced by the prosecution. Similarly, there is no merit in the plea regarding inaction on the part of the complainant to visit the residence of the accused between 09.06.2002 and 12.06.2002. These pleas taken by the accused, which are not legally tenable, by itself reflect that the accused persons are fishing out for defence on frivolous grounds.
32. The court has perused the record with the assistance of Ld. APP for State and the Ld. Defence Counsel.
33. There is merit in the submissions made by Ld. APP for State. The offence took place in the year 2002 and some loss of memory on part of the witnesses is quite natural. However, minor discrepancies regarding the date of arrest of the accused persons, source of information about the accused, date on which the complainant discovered theft of his articles are not fatal to the prosecution case. It has been observed by a Division Bench of Hon'ble High Court of Delhi in the case of 'Mohd. Naseem Vs. State 167 (2010) DLT 104 (DB)' that normal discrepancies or errors do creep in because every human being has human failings and limitations. It has to be ascertained whether the prosecution has proved its case by looking at broad probabilities of the case and thereafter, to see and identify embellishments and then determine whether embellishments have dented broad probabilities proved by the prosecution. Where a fool proof case without any embellishment or variation is brought before a court, that by itself becomes a ground to suspect credibility of case.
FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 21 of 23
34. The contention regarding ownership of houses, from where the recovery of the stolen property was affected, is not tenable. The accused persons are stated to have been residing as tenants/licensees in the properties from where the recovery of the stolen property was affected. Once the prosecution has been able to establish recovery of the stolen articles from the possession of the accused persons by adducing cogent and convincing evidence, the ownership of the said places is not only immaterial, but also irrelevant.
35. All the three PWs i.e. PW1 Jitender Pal Singh Walia, PW2 HC Abhay Singh and PW6 IO HC Ved Prakash have deposed that they had requested the neighbourers to join investigation, but they declined. Moreover, the complainant is an independent public person and has got no axe to grind against the accused persons. The accused persons have miserably failed to substantiate their defence regarding false implication by the complainant. Even the accused persons did not step into the witness box for substantiating their defence that they were falsely implicated by the complainant who did not pay them their wages and wanted to cover his misdeed. Therefore, there is no merit in the contention of the Ld. defence counsel that no independent public witness was joined during investigation.
36. PW1 Jitender Pal Singh Walia has stated during his examination that while the accused persons left the work at his house, the other labourers continued to work. Therefore, there is no merit in the submissions made by the Ld. defence counsel that the complainant has resorted to concealment of material facts. FIR No. 284/2002 PS Mehrauli State vs. Ganga Prasad & Anr. Page 22 of 23
37. Considering the evidence adduced by the prosecution, which is quite cogent and convincing, the court holds that the prosecution has failed to establish that both the accused committed theft of the aforementioned articles from the house of the complainant. However, the prosecution has successfully discharged the onus of proving that on 12.06.2002, at about 06:00 pm, accused Ganga Prasad was found in possession of three stolen cartridges and accused Ram Sumer was found in possession of stolen revolver bearing no. F.G.3587, 32 MKI Field Gun Kanpur 2000 and three stolen cartridges which they dishonestly received or retained knowing or having reasons to believe the same to be stolen property. Therefore, both the accused persons are held guilty for having committed offence punishable u/s 411/34 IPC and are convicted for having committed the said offence.
Announced in the open (Sandeep Garg)
Court on 22.02.2013 MM (South)07,
New Delhi.
FIR No. 284/2002 PS Mehrauli
State vs. Ganga Prasad & Anr. Page 23 of 23