Delhi District Court
State vs Joon on 30 January, 2010
IN THE COURT OF SH. ASHU GARG,
MM-03 (CENTRAL), DELHI
In re:
State versus Joon
FIR No. 28/09
PS. ODRS
JUDGMENT
i. Serial No. of Case - 68/II/2009
ii. Date of institution - 09.04.2009
iii. Date of alleged offence - 03-04.03.2009
iv. Name of Complainant - Satya Prakash Gaur
S/o. Sh. K. C. Gaur
44/189, Rajatpath,
Mansarovar, Jaipur,
Rajasthan
v. Name of accused - Joon @ Umesh
S/o. Sh. Jeet
R/o. Mangal Bazar,
Hanuman Doga,
Distt. Kathmandu,
Nepal
vi. Offence complained of - U/s. 379/34, IPC
U/s. 147, IR Act
vii.Plea of accused - Pleaded not guilty
viii.Final Order - Acquitted
u/s. 379/34 IPC
Convicted
u/s. 147 IR Act
ix. Date of reserving order - 18.01.2010
x. Date of Judgment - 30.01.2010
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BRIEF REASONS FOR JUDGMENT
1. The accused Joon has been facing trial for the offence punishable under section 379/34 IPC as well as under
section 147 of the Indian Railways Act. It is alleged against him that during the intervening night of 03.03.09 and 04.03.09, in train number 2414 from Jammu Tavi to Ajmer, he accused along with three unknown persons, in furtherance of their common intention, committed theft four bags/suitcases containing jewellery, cloths, shoes, etc. belonging to the complainant Sh. Satya Prakash Gaur without his knowledge and consent. Additionally, he was found traveling in the train without any railways ticket or other authorisation.
2. Briefly stated, the case of the prosecution is that on 03.03.09, while the complainant Sh. Satya Prakash Gaur along with his family members was going from Vaishno Devi to his home in train number 2414, he heard a noise "Chor-Chor" while train crossed Delhi Railway Station. He found his four bags missing. The accused had been caught by the public at the spot and they informed him that there were four persons 2 including accused and three persons had been able to run away along with bags. He called the TTE and informed him about the theft. The accused was handed over to the concerned officers and he was arrested in the present case. Upon statement of the accused, FIR was registered and investigation was carried out.
3. Charge of the offence punishable under sections 379/34 IPC and 147 of the Indian Railway Act was framed by the court vide order dated 16.05.09, to which he had pleaded not guilty and claimed trial.
4. At the trial, prosecution examined six witnesses in all support of its case.
5. PW-1 HC Ramesh Kumar deposed that on 05.03.09, while he was posted at PS Sarai Rohilla Railway Station, RPF staff brought the accused from the Alwar. After medical examination, he took the accused to ODRS where he was handed over to the IO. He was formally arrested and FIR was registered on the basis of the rukka.
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6. PW-2 Sh. Ramesh Chand Vijay deposed on the date 04.03.09, he was posted as TTE from Delhi to Bandikui in coach number S-1 and S-2. When he was in coach number S-2, he heard noise "chor chor" from side of coach number S-1. When he reached at the spot, PW- 5 informed him that some persons had entered in the coach who had stolen his four bags and that one person had been caught red handed and the rest three had absconded with the bags. RPF squad came at the spot and the accused was handed over to them.
7. PW-3 W/ASI Rama Saroha was the duty officer at the relevant time who had registered the FIR on the basis of rukka sent by the IO.
8. PW-4 Ct. Devender was posted in Rajkiya Railway Police on 04.03.09. He along with Ct. Sunil Kumar was assigned the duty to take the accused to Delhi by train, who had been apprehended in Zero FIR. He along with Ct. Sunil reached ODRS by Pooja Express Train from Alwar with a copy of FIR and handed over the same to PS ODRS.
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9. PW-5 Sh. Satya Prakash Gaur is the complainant who narrated the incident in support of the prosecution case and identified the accused in the court to be the same person who had been apprehended by the public.
10. PW-6 HC Ram Kumar received the Zero FIR on 05.03.09 along with the accused from Alwar. The said FIR was converted into regular FIR and he interrogated the matter and recorded the disclosure statement of the accused. He arrested the accused and carried out the investigation. After completion of the investigation, charge-sheet was filed in the court.
11. Statement of the accused was recorded on 18.01.2010 wherein the accused denied all the allegations and stated that he had been falsely implicated. He stated that he was being taken to Haryana by one of his friends Suman and that he was not aware of any theft. He took defence that some other gang might be involved in the theft but he was falsely implicated by the public.
12. It is in these circumstances that the Ld. APP for the 5 State has argued that the prosecution has been able to prove its case beyond reasonable doubt as all the witnesses have supported the prosecution case and no material contradiction can be seen in their versions.
13. On the other hand, Ld. Legal Aid Counsel has vehemently argued that there is no eye-witness of the incidence and there has been no recovery of property at the instance of the accused. It is contended that even if the entire testimony of the prosecution remains unrebutted, still no case against the accused is proved and conviction cannot be sustained on the basis of disclosure statement recorded in police custody when there is no discovery of fact or recovery of property consequent thereto.
14. I have heard the arguments advanced by the Ld. APP for the State as well as the Ld. Legal Aid Counsel for the defence and have meticulously perused the material available on record.
15. At the outset, it is worthwhile to note that the complainant PW-5 is the only witness to the incident 6 in question. PW-2 was the TTE in the train in which the incident took place but he was not present at the spot. He was in a different coach and reached the spot later when he saw the accused being apprehended by the public and he was informed about the incident by the persons available at the spot. He is not an eye-witness and has given an account of what was told to him by the public. He neither saw the accused or any other person committing theft of anything nor saw the accused trying to flee away nor being apprehended by the public.
16. PW-1, PW-3, PW-4 and PW-6 are police officials who are again not the eye-witnesses of the incident. They had merely participated in the investigation in one way or the other and their testimonies are formal in nature. None of these witnesses had seen the incident and they merely proved the procedural formalities after the production of the accused.
17. Coming to the complainant PW-5, it would be seen that even this witness is not an eye-witness of the incident as such. As per his version, he heard the 7 noise 'chor chor' raised by public and when he checked, he found his bags missing. He then saw that the public had apprehended the accused and they informed him that three others have been able to flee away.
18. It thus follows that even the PW-5 did not see the accused or any other person committing theft of his bags. He testified what was told to him by the public at the spot. He is not a witness to the theft as he came to know of the theft only when he heard the alarm raised by the public. He identified the accused in the court top be the same person who was caught by the public and not the person who had lifted the bags. As such, his evidence is also not sufficient to attribute any criminality to the accused.
19. The accused has not disputed his identity at the spot, though he stated that he had not committed theft. In his statement recorded under section 313 CrPC, he stated that he was being taken to Haryana by his friend. However, no such friend was examined by him in defence who could depose in his favour.
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20. Be that as it may, in a criminal trial, the burden lies squarely upon the prosecution to establish the guilt of the accused beyond reasonable doubt. For that, it has to lead cogent and reliable evidence which should point towards the guilt of the accused and which could rebut the presumption of innocence in his favour. Mere suspicion, howsoever strong it may be, cannot replace the standard of proof required to prove a criminal offence against the accused.
21. In the present case, there is no witness on record who could depose regarding the commission of theft by the accused. Even if the offence of theft of the bags of the complainant is accepted to be true, still, the involvement of the accused is doubtful. No witness has been cited by the prosecution who could establish the fact that the accused was seen lifting the bags of the complainant, or handing over the said bags to the accomplices, or trying to run away from the spot. The identity of the public persons who had apprehended the accused at the spot is not known. Their details and whereabouts are nowhere in knowledge. No such person had been cited as witness and statement of none of such persons was recorded by anyone.
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22. In these circumstances, it is clear that in the absence of even a single eye-witness, no case against the accused would be proved. No corroboration of allegations of theft is to support the prosecution version.
23. The only thing that remains on record is the disclosure statement of the accused. The law is well settled in this regard. A statement given by the accused in custody is hit by section 25-27 of the Indian Evidence Act and is not admissible. Conviction cannot be based on the basis of such a statement alone, unless there is recovery of a fact in consequence of the said statement.
24. In the present case, at the time when the statement was recorded, the factum of theft was already within the knowledge of the police. And there is no discovery of any further fact in the present case. Two days police remand of the accused was also taken by the IO but nothing incriminating could be recovered at his instance. The whereabouts of the co-accused persons and the stolen property are not known. It is 10 not known who all were the persons who committed the theft and how the theft was planned. It is not known where the property was taken after the theft. Whether the property was sold to anyone or destroyed or concealed anywhere or otherwise disposed of is nowhere within knowledge. And absence of this information would make the disclosure statement inadmissible.
25. Thus, in view of the above facts and circumstances, it can be safely said that the prosecution has failed to prove its case for the offence of theft punishable under section 379 IPC beyond reasonable doubt against the accused. Needless to say that in the absence of any evidence of prior meeting of minds, the charges of sharing common intention under section 34 IPC would also not sustain. The accused is entitled to be given a benefit of doubt with respect to this offence.
26. However, the evidence on record clearly shows that the accused was travelling in the train in question. He had admitted his presence at the spot. However, he has failed to prove that he was having any railway 11 ticket or any other authorisation in his favour. No railway ticket has been recovered from the personal search of the accused. The accused did not even claims that his ticket was available with his friend. No such friend has been examined by accused. The allegations against him in this regard and the testimony has remained unquestioned. Once the accused admits his presence in the train, it is his responsibility to prove his authorisation.
27. As such, the prosecution has been able to prove its case beyond reasonable doubt against the accused as far as the offence punishable under section 147 of the Indian Railways Act.
28. Thus, the accused is given the benefit of doubt and is acquitted of the charges under section 379/34 IPC. However, he is convicted for the offence punishable under section 147 of the Indian Railways Act.
29. The accused is in custody since the date of his arrest, that is, 04.03.2009. This custody is more than the maximum punishment of six months imprisonment provided for the offence punishable under section 147 12 of the Railways Act.
30. Accordingly, the accused be released from custody immediately if not wanted in any other case. Necessary intimation be sent to the Jail Superintendent forthwith.
31. File be consigned to the record room. Announced in the open court this 30th day of January 2010 (ASHU GARG) MM-03 (Central), Delhi 13