Delhi District Court
State vs Suraj@Daya Shankar Das on 2 February, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-08
(CENTRAL), TIS HAZARI COURTS : DELHI
PRESIDING OFFICER: MS. MEENA CHAUHAN, DJS
FIR No. 854/2021
PS : Kotwali
U/s 356/379/411 IPC
State vs. Suraj @ Daya Shankar Das
Date of Institution of case: 12.11.2021
Date when Judgment reserved: 03.01.2024
Date on which Judgment pronounced: 02.02.2024
JUDGMENT
A. Case No. : 12799/21
B. Date of Institution of Case : 12.11.2021
C. Date of Commission of Offence : 15.09.2021
D. Name of the complainant : Sh. Rohit Kumar
E. Name of the Accused : Suraj @ Daya Shankar
his parentage and residence Dass S/o Sh. Govind
Prasad, r/o Village Jigni
Bujurg, PS Gola, District
Gorakhpur, UP.
F. Offences complained of : U/s 356/379 r/w 411
Indian Penal Code
G. Plea of the Accused : Pleaded not guilty
H. Final order : Conviction
I. Date of such order : 02.02.2024
BRIEF FACTS OF THE CASE:
1. The present case has originated from the charge-
State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 1/18 sheet filed by the State, against accused Suraj @ Daya Shankar Das S/o Sh. Govind Prasad. As per charge-sheet, on 15.9.2021 at about 07:45 at Bus Stand, Red Fort, Delhi falling within the jurisdiction of PS Kotwali, accused had snatched one mobile phone make Poco M3 color blue and the said mobile phone was recovered from the possession of accused as per seizure memo which is Mark X and thereby committing an offence punishable U/s 356/379 read with section 411 Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 12.11.2021 against the accused. Cognizance of offence punishable U/s 356/379/411 IPC was taken. Copy of the charge sheet was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s 356/379/411 IPC was framed against the accused to which he pleaded not guilty and opted for trial.
3. In support of its version, the prosecution has examined 03 (three) witnesses.
4. PW-1 Ct. Amit Malik in his examination-in-chief has deposed that on 15.09.2021, on receiving the PCR call, he along with ASI Satendar went to the incident spot i.e., Lal Quila, near Metro Gate No 2. They saw a boy was running and was being chased by the complainant and who was shouting 'Chor Chor Pakdo Pakdo'. They State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 2/18 overpowered that boy and the complainant also reached the spot where they overpowered the boy. The complainant informed them that the boy had snatched the mobile phone. They recovered the mobile phone from the hand of the accused and the said mobile was identified by the complainant at the spot and the IO recorded the statement of the complainant and handed over him the same for registration of the FIR. After registration of FIR, he came back to the spot and handed over the same to the IO. IO prepared the seizure memo of the recovered mobile phone Ex.PW-1/A. IO also arrested accused vide arrest memo Ex.PW1/B and conducted his personal search vide memo Ex.PW-1/C. IO also recorded the disclosure statement of accused Ex.PW1/D. He went to AAA hospital for medical examination of accused. After medical examination, the accused was lodged in the lock up. He has correctly identified the accused. The witness was shown the photographs of the case property and correctly identified the same. The print of the photographs was exhibited as Ex.P1.
During cross-examination of the witness by Ld. LAC for the accused, PW-1 admitted the suggestion that at the time of incident/call, he was in the Chowki at Red Fort. They took around 5-10 minutes to reach the incident spot. He further admitted that he had not seen the incident taking place. He denied the suggestion that the area is crowded. He denied the suggestion that the case property State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 3/18 was planted upon the accused person as he was standing over there. He admitted the suggestion that no written notice was given to any public person by the IO in my presence. He admitted that no CCTV footage was obtained by the IO from the spot. He denied the suggestion that all the investigation took place at PS instead of the spot. He denied the suggestion that he was deposing falsely.
5. PW-2 Sh. Rohit Kumar in his examination-in-chief has deposed that on 15.09.2021 at 7.45 am, near the Lal Quila Bus Stand, when he was boarding in the bus no. 405, suddenly a boy snatched his mobile phone, a POCO M3 from his hand and he started running towards the Lal Quila. He also followed him. Two police officials were also coming from opposite directions who apprehended the said boy and his mobile phone was recovered from him. Name of that boy was later on disclosed as Suraj @ Daya Shankar Dass. He has correctly identified the accused. The said mobile phone was seized vide seizure memo Ex.PW1/A. IO recorded his statement Ex.PW2/A. Police officials got an FIR registered on his statement. Accused was arrested and personally searched vide memos Ex.PW1/B and Ex.PW1/C. He provided the photocopy of his mobile bill to IO, the same exhibited as Ex.PW2/B. Photographs of mobile phone placed on record shown to the witness to which witness identified as his mobile which was snatched by the accused on the day of incident. The said mobile phone was released to him on superdari vide State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 4/18 supardarinama Ex.PW2/C. He also brought the original mobile in the court.
During cross-examination of the witness by Ld. LAC for the accused, PW-2 admitted the suggestion that the bill of mobile phone is not in his name. He voluntarily stated that the same was ordered online from the account of his friend. He admitted that no notice was ever given to his friend by the police official in respect of this case. He was doing a labor job through a contractor / thekedar. His duty hours were from 8.00 pm to 4.00 am. He remained in the Metro station from 4.00 am till 7.00 am. He denied the suggestion that he was deposing falsely. He had not provided any document regarding his work to the IO. He remained at the spot for about 30-40 minutes. He admitted that documents related to this case were signed by him and prepared by police officials at PS only. He was inquired by the police officials from him in PS only. The sketch regarding the spot / case signed by him at PS only. He stayed at PS till 3.00 pm. He never visited PS after the day of incident. Police did not contact him, however, he contacted them to release his mobile phone on superdari. He admitted that at the time of the incident, public persons were present at the spot. No public person joined the investigation. He cannot say whether CCTV cameras are installed near the spot. He denied the suggestion that nothing was recovered from the spot from the accused. He denied the suggestion that the accused person was firstly State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 5/18 met in the PS only. He denied the suggestion that the case was falsely planted upon the accused.
6. PW-3 ASI Satyendra Singh in his examination-in-
chief has deposed that on 15.09.2021, on receiving the PCR call, he along with Ct. Amit Malik went to the incident spot i.e Lal Quila bus stand, near Metro Gate No
4. They saw a boy was running and was being chased by the complainant and who was shouting 'Chor Chor Pakdo Pakdo'. They apprehended that boy and the complainant also reached the spot where they apprehended the boy. The complainant informed about the incident that the boy had snatched his mobile phone. They recovered the mobile phone from the hand of accused and the said mobile was identified by the complainant at the spot and he recorded the statement of the complainant Ex.PW-2/A and prepared the tehrir from point X to X1 and handed over the same to Ct. Amit Malik for registration of the FIR. After registration of FIR, Ct. Amit Malik came back to the spot and handed over the same to him. He prepared the site plan at the instance of the complainant Ex.PW-3/A and prepared the seizure memo of the recovered mobile phone make POCO M3 Ex.PW-1/A. He arrested accused vide arrest memo Ex.PW-1/B at about 2:10 pm and conducted his personal search vide memo Ex.PW 1/C and also recorded disclosure statements of accused Ex.PW-1/D. He recorded the supplementary statement of the complainant and he was discharged. Ct. Amit Malik went to AAA hospital for State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 6/18 your medical examination. He deposited the case property in the Malkhana. Accused was produced before the concerned court on the same day and was sent to JC. He recorded the statement of Ct. Amit Malik u/s 161 Cr.P.C. and he was discharged. The case property released on the superdari to the complainant vide supardarinama Ex. PW- 2/C. He has correctly identified the accused. Witness was shown photographs of the case property and correctly identified the same. The print of the photographs exhibited as Ex.P-1.
During cross-examination of the witness by Ld. LAC for the accused, PW-3 stated that he reached the spot when the complainant was chasing the accused. The time of the incident was around 7:45 am to 7:50 am. He admitted that he had not seen the incident taking place. He remained at the spot for about 3 to 4 hours alongwith complainant. He denied the suggestion that all the documents were prepared while sitting in the PS. He admitted that people were passing by and the spot was crowded. He asked 4 to 5 public persons to join the investigation but they refused. He admitted that no written notice was given to any public person by him. The complainant was never called at the PS regarding the investigation in the present case. He voluntarily stated that the complainant only came once to release his mobile phone on superdari. He admitted that no documents were given by the complainant to him for the investigation of State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 7/18 this case. He admitted that no CCTV camera was installed capturing the footage of the incident. He had not taken any photographs of the accused with the stolen mobile phone at the spot. He denied the suggestion that the case property was planted upon the accused person as he was standing over there. He denied the suggestion that all the investigation took place at PS instead of the spot. He denied the suggestion that he was deposing falsely.
7. Vide separate statements of the accused U/s 294 Cr.P.C, he admitted the factum of the FIR as Ex.A-1, Certificate u/s 65 (B) Indian Evidence Act as Ex.A-2 and GD No. 44A dated 15.09.2021 as Ex.A-3 without oath and without admitting the content of the same.
8. The prosecution evidence was closed on 16.09.2023.
Statement of the accused u/s 313 read with section 281 Cr.P.C was recorded in which he stated that he was innocent and had been falsely implicated in the case. He further stated that recovery has been planted upon him and the complainant deposed falsely at the instance of IO. He also submitted that he did not want to lead defence evidence. Final arguments in the matter were heard.
COURT OBSERVATIONS:
9. It is the case of the prosecution that the accused committed theft of the mobile phone of the complainant and the accused assaulted/used criminal force upon the State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 8/18 complainant while committing theft of her mobile phone and later the said mobile was recovered from his possession. It has been argued by Ld. APP for the State that the accused has been duly identified by the complainant in the court. It is argued that since the accused assaulted/used criminal force upon the complainant while committing theft of his mobile phone which has been recovered from the accused, he is guilty of offences under Section 379 & 356 IPC.
10. Per contra, it has been argued by Ld. LAC that the bill of the mobile phone is not in the name of the complainant and was not provided to the IO by him during investigation. It is further argued that there is contradiction in the version of prosecution witnesses qua the place of documentary proceedings and as such the accused cannot be held guilty of offence under Section 379/356 IPC and also u/s 411 IPC. It is argued that despite the availability of public witnesses they were not joined in the investigation and as such the accused is liable to be acquitted.
11. The accused has been charged for committing the offences under section 356 IPC and 379 IPC. So far as the offence u/s 356 IPC is concerned, the essential ingredients of the offence are as follows :-
i) accused assaulted or used any criminal force to any person;
ii) such person was either wearing or carrying any property;
State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 9/18
iii) accused committed such assault in an attempt to commit theft of such property;
12. The term force has been defined under section 349 of IPC whereas the term criminal force has been defined under section 350 of the IPC. So far as the offence under section 379 IPC is concerned, in order to bring home the guilt of the accused under section 379 IPC, the prosecution has to prove the following:-
i) that the property in question is a movable property;
ii) that such property was in possession of a person;
iii) that the accused moved such property whilst in the possession of that person;
iv) that the accused did so without the consent of that person;
v) that the accused did so in order to take the same out of the possession of that person;
vi) that the accused did so with intent to cause wrongful loss to that person or wrongful gain to himself.
13. Before appreciating the evidence, brought on record by the prosecution, I must mention here the law of appreciating evidence of the witnesses. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 10/18 it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
14. Now coming to the facts of the present case under consideration. It is not in dispute that the mobile phone in question was recovered from the possession of the accused. It is also not in dispute that the accused was apprehended at the spot only when after the mobile phone was snatched from the complainant, he started shouting and the police officials present at the spot caught hold of the accused. Thereafter the FIR was registered and the snatched mobile phone was recovered from the possession of the accused.
15. The accused was duly identified by the complainant in his examination when he was examined as PW-2. Further, the complainant has correctly identified the stolen mobile phone during his examination before the court. Moreover, PW-2 has categorically stated that while he was boarding the bus at the spot at Bus stand, Red Fort at about 07:45 AM, the accused snatched his mobile phone from his hand and tried to flee away. When he followed him, two State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 11/18 police officials coming from opposite directions caught him and recovered the mobile phone from his possession. The testimony of PW-2 is corroborated by FIR (Ex. A-1) as per section 157 Indian Evidence Act(hereinafter called as IEA). Further, the lodging of FIR soon after the incident is relevant under section 6 IEA as fact forming part of the same transaction, also as 'res gestae' and u/s 8 IEA as subsequent conduct of the victim influenced by fact in issue i.e. intentional use of force for the purpose of committing theft and commission of theft. Testimony of eye-witness is direct evidence under section 60 IEA and has great credibility in law.
16. Furthermore, no contradiction came out from the cross-examination of PW-2 and this Court has no hesitation in believing the testimony of PW-2. Thus, it has been proved beyond all reasonable doubt that the accused snatched the mobile phone possessed by the complainant without the consent of the complainant and thereby caused wrongful loss to the complainant. It has also been proved beyond all reasonable doubt that while doing so the accused had used criminal force upon the complainant. Even though the mobile phone was recovered immediately thereafter from the accused person, however, it has now been well settled that even a temporary period of deprivation or dispossession of the property of another causes loss to the other, and is sufficient to constitute the offence of theft.
State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 12/18
17. I find it pertinent here to refer section 114 of IEA which outlines the powers of the courts in terms of presuming certain facts that are likely to have happened, with due consideration being given to the 'common course of natural events, human conduct and public and private business', as connected to the facts of the specific case. Hon'ble Supreme Court in Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:
"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section
114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."
18. Coming to the factual matrix of the present case, as State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 13/18 regards offence under Section 379 IPC, the accused was found in possession of the stolen mobile phone of the complainant immediately after the commission of theft and, therefore, the presumption under Section 114(a) of Indian Evidence Act, 1872 also arises against him. This court is also observant of the fact that presumption under section 114 IEA is presumption of fact. Upon recovery of the stolen mobile phone from the possession of the accused, he has not given any plausible explanation for possession of the same. In the light of overall evidence produced by the prosecution, strong presumption is raised against the accused for alleged commission of the theft.
19. PW-1 and PW-3, who were official witnesses, have also supported the case of the prosecution qua the apprehension of accused near the spot and recovery of snatched mobile phone from the possession of the accused and no contradiction came out from cross-examinations of PW-1 and PW-3.
20. It is a settled principle of law that the prosecution has to stand firm on its own legs to point out the guilt of the accused by bringing cogent and reliable evidence. On the other hand, accused can create doubts in the prosecution case by cross-examining the prosecution witnesses to create doubts in their credibility and by raising probable defences. Further, the burden upon the accused to rebut the prosecution case by creating preponderance of probabilities in his favor. However, once State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 14/18 the prosecution case stands proved, mere denial is not sufficient and the accused has to substantiate his defence by supporting it with reliable evidence.
21. The contention of the Ld. LAC for the accused that no independent witness has joined the investigation and thus the testimony of the prosecution witnesses cannot be relied upon is not acceptable as it is a well settled law which has again been reiterated by the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of Uttar Pradesh CRIMINAL APPEAL NO. 502 OF 2015 that non-examination of independent witnesses is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable. Further, the testimonies of the witnesses are indeed impeccable and corroborative of each other. The crime of snatching the mobile phone has been established by the testimony of PW-2 and the other evidence on record. The complainant (PW-2) had no motive to falsely implicate the appellate and/or to allow the real culprits to go scot-free. Therefore, in view of aforesaid appreciation of evidence and factual position of the case, PW-2 had stood the acid test of cross examination, was believable just like that of a trustworthy and creditworthy witness.
22. The Ld. LAC for the accused has also contended that the investigating agencies have not placed on record the CCTV footage of the spot. However, only because the CCTV footage has not been placed cannot be a ground to State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 15/18 give the benefit of doubt to the accused when the testimony of the complainant is itself trustworthy and uncontroverted. Further, the Hon'ble Supreme Court in the case of C. Muniappan and Others vs. State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has observed as under:
"Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
23. Even then, for the sake of arguments if it is assumed that PW-1 and PW-3 did not witness the actual commission of offence, and that more eyewitnesses should have been examined to prove the case of the prosecution, in such a situation it would be suffice to say it is the quality of evidence that matters and not the quantity/number of witnesses. 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.
State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 16/18 of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6 SCC]. The defence of non-examination of public witnesses does not hold water.
24. Thus, all this evidence proves beyond reasonable doubt that the accused had committed theft while using criminal force. Thus, section 356 and 379 IPC is proved beyond reasonable doubt against the accused. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused beyond reasonable doubt. The testimony of the complainant and other witnesses is coherent and directly implicates the accused. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt.
25. Resultantly, the accused Suraj @ Daya Shankar Dass S/o Sh. Govind Prasad, R/o Village Jigni Bujurg, PS Gola, District Gorakhpur, UP is hereby found guilty for offences under section 356/379 IPC as the case against him is proved beyond reasonable doubt and after this, I do not deem it fit to get into the merits of charge leveled against him u/s 411 IPC in the present case in view of the judgment of the Hon'ble High Court of Delhi namely Sunil Mashi@ Silly v. State Nct Of Delhi dated 14-10-2014. Accused shall be heard separately on State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 17/18 point of sentence.
Copy of judgment be given to convict free of cost.
Announced in the open court Digitally signed
today i.e., 02.02.2024 MEENA by MEENA
CHAUHAN
CHAUHAN Date: 2024.02.02
16:05:45 +0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District,Tis Hazari Courts/Delhi [This judgment contains 18 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Suraj @ Daya Shankar Dass FIR No. 854/21 PS Kotwali 18/18