Delhi District Court
State vs Rajesh S/O Late Sh. Jharmal Gupta on 16 July, 2016
1
IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE
(PC ACT)(ACB)/CENTRAL-05/TIS HAZARI COURTS/DELHI
Criminal Appeal No. 3/2016
FIR No. 508/05
P.S. Timar Pur
Under Sections 379/411 IPC
State
Govt. of NCT of Delhi
(Through Public Prosecutor)
.....Appellant
Versus
Rajesh S/o Late Sh. Jharmal Gupta
R/o H.No.498A, Gandhi Vihar, Delhi ..... Respondent/accused
Date of Institution : 05.01.2016
Date of conclusion of final argument : 12.07.2016
Date of pronouncement of Judgment : 15.07.2016
JUDGMENT
1. Present criminal appeal has been preferred by the State against the impugned judgment of acquittal dated 28.10.2015 passed by learned MM in FIR No.508/05, PS Timar Pur registered U/ss 379/411IPC titled as State Vs. Rajesh whereby the respondent was acquitted.
2. The brief facts necessary for the disposal of the present criminal appeal are that at about 6.00 pm on 22.10.2005 at Shop No.B-293, Nehru Vihar, Delhi, respondent/accused committed theft of a carton box belonging to the complainant Sumit Wadhwa which was containing one old battery of Nokia, one battery of Samsung, one hands free lead, 7 chargers of Nokia, 2 chargers of Samsung, 1 charger of Sony, 2 Chargers of Panasonic and Criminal Appeal No. 3/16 State Vs. Rajesh Page 1 of 8 2 one body cover of Nokia 5310. Respondent/accused was apprehended at the spot and aforementioned articles were recovered from the possession of the respondent/accused. After completion of investigation, charge-sheet u/ss 379/411 IPC was filed against the respondent/accused.
3. Accordingly, respondent/accused was charged for commission of offence punishable u/ss 379/411 IPC to which he pleaded not guilty and claimed trial. In support of its case, prosecution examined PW1 ASI Ved Pal (Duty Officer) who proved the FIR No.508/05 as Ex.PW2/A. Beside this formal witness , prosecution also examined PW1 Sumit Wadhwa, (complainant) , PW3 Ct. Ajit Kumar (who joined investigation with IO) , PW4 Retired SI Virender Singh (IO) and PW5 Pranendra Kumar Singh (Public witness ) .
4. After completion of prosecution evidence, statement of respondent/accused was recorded U/s 313 Cr.P.C. wherein he denied allegations against him in toto and stated that he had been falsely implicated and that the case property had been planted upon him. Since respondent/accused did not opt to lead evidence in his defence, final arguments were heard and impugned judgment of acquittal was passed by Learned Trial Court which has been challenged before this Court vide the present appeal.
5. I have heard arguments of Learned Addl. Public Prosecutor for the State and Learned Counsel for respondent/accused at length and have perused the Trial Court Record with utmost care.
Criminal Appeal No. 3/16 State Vs. Rajesh Page 2 of 8 36. In the instant case, prosecution had to prove beyond reasonable doubt that the respondent/accused committed theft of carton belonging to the complainant Sumit Wadhwa which was containing mobile accessories from Shop No.B-293, Nehru Vihar, Delhi and that stolen articles were recovered from the possession of the respondent/accused. In order to prove the same, prosecution had examined PW1 complainant Sumit Wadhwa who proved his complaint as Ex.PW1/A. He deposed that he is running a shop of mobile phone from B-293, Nehru Vihar near Timar Pur, Delhi and at about 6.00pm on 22.10.2005 while he was busy showing mobiles to customers, respondent/accused started putting one mobile phone make of Nokia 3310 and some accessories in his pocket. He caught the accused red handed and called police by dialling 100 number. Police came at the spot and he handed over the custody of accused to the police. Police recorded statement of complainant (Ex.PW1/A) whereafter accused was arrested vide arrest memo Ex.PW1/B and his personal search was conducted vide personal search memo Ex.PW1/C. The cash memo receipts (Ex.PW1/D) regarding the accessories were seized by the police and recovered stolen property / case property i.e. one mobile cover of Nokia body, 13 chargers, six batteries and one ear phone were also seized vide seizure memo Ex.PW1/E.
7. In his cross examination, the complainant Sumit Wadhwa (PW1) testified that both he and his friend Pranendra (PW5) (wrongly typed as Parminder) were witness to the respondent/accused stealing the mobile accessories and that both of them had apprehended the respondent/accused. When they apprehended him, some stolen articles were found lying in his pocket and some he was holding in his hands.
Criminal Appeal No. 3/16 State Vs. Rajesh Page 3 of 8 4He had kept the stolen batteries in the left pocket of his pant and in the right pocket of his pant , he had kept chargers, panasonic battery, body of 3310 and ear phones. When the accused was caught, he was found holding chargers in his hand. Accused was caught red handed by him and his friend Pranendra (PW5) in the shop while he was trying to escape. Thereafter they informed the police by dialling 100 number and police reached the shop after about 15-20 minutes.
8. PW5 Pranendra Kumar Singh was another eye witness cited by the prosecution, however, he failed to support the case of the prosecution and pleaded ignorance regarding the incident.
9. The careful scrutiny of the testimony of the complainant Sumeet Wadhwa (PW1) reveals that although he varied from the statement made by him in his complaint Ex.PW1/A, he unflinchingly testified regarding the accused/respondent having caught red handed by him and his friend Pranendra (PW5) while stealing mobile accessories viz. chargers, batteries, body of mobile set Nokia 3310, hands free etc. He is a reliable and a truthful witness.
10.It was argued by learned counsel for the respondent/accused that testimony of the complainant can not be relied upon as there are contradictions in his complaint Ex.PW1/A and his deposition regarding the incident. There is no substance in the arguments of learned counsel for the respondent/accused as the variation in his statement can be attributed to the fact that the incident took place way back in the year 2005 and his testimony was recorded in 2012 i.e. after a period of about 7 years. Otherwise also, PW1 was not even remotely confronted with Criminal Appeal No. 3/16 State Vs. Rajesh Page 4 of 8 5 the contents of his complaint (Ex.PW1/A) or his statement recorded U/s 161 Cr.P.C. It goes without saying that a skillful cross examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they may be taken as an acceptance of the truth of that part of witness evidence. In case titled as Babu Lal Vs. Caltax (India Ltd.) A 1967 C 2005 it was ruled that "Generally speaking, when cross examining, a party's counsel should put to each of his opponents witness in turn, so much of his case as concerns the particular witness or in which he had a share............if asks no questions, he will be taken to accept the witness account."
11.Respondent/accused was unknown to the complainant and no suggestion was put to the complainant that he had any reason to implicate the accused. There is no reason to doubt testimony of the complainant as he had no previous enmity with the respondent/accused. Even nothing has been brought on record to show that the complainant had any previous enmity with the respondent.
12.The testimony of PW1 complainant is also corroborated by the testimony of PW4 Retired SI Virender Singh/IO who was on the date of incident posted as ASI , PS Timarpur. He proved DD No.19A dated 22.10.2005 (Ex.PW4/A), the bare perusal of whichc reveals that the complainant Sumit Wadhwa had telephonically informed the Police Control Room that he had caught hold of a thief at 293, Nehru Vihar, B Block to which ASI Virender Singh (PW4) alongwith Ct. Ajit Singh (PW3) were sent to the spot to investigate the complaint. From the said Ex.PW4/A, it is thus evident that accused/respondent was caught red handed by the Criminal Appeal No. 3/16 State Vs. Rajesh Page 5 of 8 6 complainant Sumit Wadhwa at his shop stealing the case property and was subsequently handed over to PW4 ASI Virender Kumar (IO) and PW3 Ct. Ajit Kumar .
13.So far as the testimony of Pranendra ( PW5) is concerned which formed the basis for acquittal of accused/respondent by the learned Trial Court , no relevance can be attached to the same as the testimony of PW1 / Sumit Wadhwa, complainant is wholly reliable and trustworthy and the same is sufficient to prove the guilt of the accused/respondent. Further , the testimony of PW5 Pranendra Kumar Singh also shows that he only showed his ignorance regarding the incident and did not ever state that no such incident took place. Also, no opportunity was given to the State to cross examine him despite the fact that Pranendra Kumar Singh (PW5) failed to depose about the incident.
14. In view of the above discussion, facts and circumstances of the case, this Court is of the opinion that the prosecution successfully proved the guilt of respondent/accused that he committed the offence punishable U/s 379 IPC beyond reasonable doubt. Accordingly, impugned order of acquittal dated 28.10.2015 is set aside and respondent/accused is held guilty and convicted for commission of offence punishable U/s 379 IPC. He shall be heard separately on the point of sentence.
Announced and signed in the open Court on 15.7.2016 (HEMANI MALHOTRA) Special Judge(PC Act)(ACB)(C)-05, Tis Hazari Courts, Delhi Criminal Appeal No. 3/16 State Vs. Rajesh Page 6 of 8 7 IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE (PC ACT)(ACB)/CENTRAL-05/TIS HAZARI COURTS/DELHI Criminal Appeal No. 3/2016 FIR No. 508/05 P.S. Timar Pur Under Section 379 IPC State Govt. of NCT of Delhi (Through Public Prosecutor) .....Appellant Versus Rajesh S/o Late Sh. Jharmal Gupta R/o H.No.498A, Gandhi Vihar, Delhi ..... Respondent/accused ORDER ON SENTENCE:
1. Vide separate judgment on appeal dated 15.7.2016 against the impugned order of acquittal dated 28.10.2015, impugned order was set aside and respondent/accused was found guilty for commission of offence punishable U/s 379IPC and convicted accordingly.
2. I have heard learned counsel for convict and learned Addl. PP for the State and have carefully perused the record.
3. It is argued on behalf of convict that lenient view be taken on the point of sentence as the convict is not previously involved in any other case and that he is the sole bread earner of his family comprising of his wife and two major daughters. It is also contended by learned counsel for convict that convict has been facing trial for the last 11 years.
4. Per contra, it is argued by learned Addl. PP for the State that convict Criminal Appeal No. 3/16 State Vs. Rajesh Page 7 of 8 8 does not deserve any leniency at all and he may be awarded maximum sentence as per the law.
5. Considering the totality of circumstances and the fact that the convict earlier remained in judicial custody for about 7 days, interest of justice will be met with if he is sentenced to undergo SI for a period of 30 days for commission of offence punishable U/s 379 IPC. Warrants be prepared accordingly. File be consigned to Record Room.
Announced and signed in the open Court on 16.7.2016 (HEMANI MALHOTRA) Special Judge(PC Act)(ACB)(C)-05, Tis Hazari Courts, Delhi Criminal Appeal No. 3/16 State Vs. Rajesh Page 8 of 8