Delhi District Court
State vs Ravi @ Dahramver @ Abhisek @ Pappi on 28 August, 2024
IN THE COURT OF SH. ANUBHAV JAIN
ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
SHAHDARA DISTRICT, DELHI.
State Vs. Ravi @ Dharamveer @ Abhishek @ Pappi & Anr.
FIR No.: 316/2019
PS: Anand Vihar
JUDGMENT
A Case Identification 7675/2019
Number
B Name of the ASI Mahesh Oraon
Complainant
C Name of the accused 1. Ravi @ Dharamveer @ Abhishek @
persons & their Pappi
parentage and addresses S/o Sh. Radhey Shyam
R/o C-2/113, Jagatpuri,
Mandoli Road, Shahdara, Delhi.
2. Rahul
S/o Sh. Ram Kumar
R/o 4649/57 C, G. n.3,
New Modern Shahdara, Delhi.
D Date of commission of 16.08.2019
the offences
E Date of Institution of the 27.09.2019
case
F Offences charged Offences u/s 379/34 & sec.411 IPC
G Plea of accused persons Pleaded not guilty
H Order Reserved on 28.06.2024
I Date of Pronouncement 28.08.2024
of judgment
J Final Order Accused persons are convicted of the
offence u/s 379/34 IPC and accused Rahul
stands acquitted for the offence u/s 411
IPC.
K State represented by Sh. Arun Kumar Mavi, Ld. APP for the
State.
FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 1/18
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Present accused persons namely Ravi @ Dharamveer @ Abhishek @ Pappi and Rahul are produced before the court to stand trial for the offence punishable u/s 379/34 & sec. 411 IPC.
2. In brief, the facts of the case as per the prosecution are that on 16.08.2019, upon receipt of DD no. 36A, HC Yashpal reached at the spot and found that call was made by Incharge of PCR Van namely ASI Mahesh Oraon. ASI Mahesh Oraon further produced two persons before the IO & informed that both of the said persons have snatched the mobile phone from one girl namely Prachi at AGCR Enclave and one person namely Neel Kamal saw them committing the offence & further helped to get accused persons apprehended.
IO further recorded statement of the ASI Mahesh Oraon wherein he stated that on the said date, while he was on patrolling duty with Ct. Pushpender at Manglam Road, one person approached them in Eco van and informed that two persons who were coming from the side of Vikas Marg on a motor cycle are thief. He further stated that thereafter, the said van driver stopped the accused persons by parking his van in front of their motor cycle and thereafter, both accused persons were apprehended.
During personal search of said accused persons, two mobile phones were recovered from the pocket of accused Rahul and he informed that one of the mobile phone belongs to him and other mobile phone was snatched by him. Both accused persons informed their name as Rahul and Ravi @ Dharamvir. Statement of Neel Kamal was recorded by the IO, wherein he stated that said persons fled away from AGCR Enclave after snatching mobile phone from a girl.
FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 2/18That thereafter a call was received on the mobile phone which was recovered from accused Rahul and the caller informed her name as Prachi and stated that said mobile phone belonged to her. Thereafter, Prachi arrived at the spot and identified both accused persons and further identified her mobile phone. She further stated that said persons have snatched her mobile phone.
ASI Mahesh Oraon further handed over the motor cycle bearing no. DL 5S AV 3343 to the IO, which was being used by accused persons to commit the offence.
Further, during the course of investigation, it was found that second mobile phone so recovered from the accused persons belonged to one girl namely Gulnaz which was also snatched by accused persons and an E-FIR with regard to same was already registered at PS Nand Nagri.
Further, during the course of investigation, IO arrested accused persons, prepared site plan and recorded statement of witnesses and further get the mobile phone deposited in the malkhana and after completion of investigation, filed the charge-sheet before the court against accused persons namely Ravi @ Dharamveer @ Abhishek @ Pappi and Rahul for the offence u/s 379/356/411/34 IPC.
3. Upon filing of charge-sheet, cognizance of the offence was taken by Ld. Predecessor Court on 27.09.2019 and copy of charge-sheet was supplied to both accused persons on the same day u/s 207 Cr.P.C, as they have been produced from JC.
4. That both accused persons were charged for the offence u/s 379/34 IPC by Ld. Predecessor Court on 01.11.2019 and a separate charge is also framed against accused Rahul for the offence u/s 411 IPC on the said date, to which the accused persons pleaded not guilty and claimed trial.
FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 3/185. Prosecution in order to prove its case has examined the following witnesses:-
PW1 / ASI Mahesh Oraon deposed that on 16.08.2019, he was posted as ASI at PCR Cell & on that day, he along with driver Ct. Pushpender were on patrolling duty in the area of Manglam Marg in PCR Van Lava 70. He further deposed that on said day at about 05.10 pm, they were at Manglam Marg, when one Eco van driver came to them and informed that two boys were coming on one motor cycle bearing no. DL 5SAV 3343 (make Splendor black colour) from Vikas Marg after snatching mobile phone. He further deposed that Eco van driver was shouting ' chor chor' and he put his Eco van in front of the motor cycle of said two boys, in the meanwhile, PW1 with the help of Ct. Pushpender caught said two boys and later on, name of driver of the said motor cycle is revealed as Ravi and the name of pillion driver is revealed as Rahul. He further deposed that during personal search of said accused Rahul, two mobile phones were recovered and on inquiry, accused Rahul told that one of the said mobile phone is his mobile and another is snatched by them. He further deposed that at the same time, a call was received on the said snatched mobile phone and he picked the said call and the said call was from victim Prachi who told that the said phone has been snatched from her and after some time, she also came at the spot. He further deposed that she identified both accused persons to be the same persons who have snatched her mobile phone and she also identified her mobile phone which was recovered from accused Rahul. He further deposed that he called at 100 number and he along with victim Prachi, Eco van driver and both accused persons went to PS Anand Vihar where he handed over the said two mobile phones and the motor cycle to IO HC Yashpal and IO HC Yashpal recorded his statement vide Ex.PW1/A. He further deposed that IO HC Yashpal arrested both accused persons Ravi and Rahul vide FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 4/18 arrest memos Ex.PW1/B and Ex.PW1/C respectively, conducted their personal search vide memos Ex.PW1/D and Ex.PW1/E respectively. He further deposed that IO seized the said motor cycle vide seizure memo Ex.PW1/F and seized the said stolen mobile phone vide memo Ex.PW1/G. He further deposed that another recovered mobile phone was also seized by the IO vide memo Ex.PW1/H. Disclosure statements of both accused persons were also recorded by the IO vide Ex.PW1/I and Ex.PW1/J respectively. He further deposed that thereafter, IO took them to the place where accused persons were apprehended and prepared site plan (Mark A) at his instance.
PW2 / Neel Kamal deposed that he is a driver by profession and in the month of August, 2019, (he does not remember the exact date) at about 03.00 - 04.00 pm, he was present inside AGCR Enclave, when two persons came on a Splendor motor cycle black colour, and snatched the mobile phone of a girl who was standing on the other side of the road. He further deposed that he tried to chase the accused persons but could not apprehend them. He further deposed that after 5-7 minutes when he reached at Manglam Road, back side of AGCR Enclave, he saw a PCR van there and he told the PCR officials regarding snatching of mobile phone. He further deposed that he along with PCR officials apprehended the accused persons who were coming from Railway Reservation Road and he stopped his Maruti Eco Van in front of motor cycle of accused persons and they were apprehended by PCR officials. He further deposed that upon search of accused persons, mobile phone of victim Prachi was recovered and he made 100 number call. Further, 2-3 mobile phones were recovered from the accused persons. He further deposed that another team of PCR officials came at the spot and victim Prachi also came at the spot. Thereafter, police officials took all of them to the PS where he FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 5/18 signed some documents prepared by police officials.
During the course of cross-examination of PW2 by Ld. APP for the State, PW2 admitted the fact that police officials prepared site plan Ex.PW2/A at his instance, seized the motor cycle of the accused persons vide seizure memo already Ex.PW1/A, seized the mobile phone of victim Prachi vide memo Ex.PW1/G and arrested accused Rahul and Ravi vide arrest memos Ex.PW1/C & Ex.PW1/B respectively.
Witness correctly identified both accused persons before the Court.
PW3 / ASI Yashpal deposed that on 16.08.2019, he was posted at PS Anand Vihar as HC and on that day at about 05.00 pm, he received DD no. 36A (Ex.PW3/A) regarding apprehension of two snatchers. He further deposed that he along with Ct. Mahesh were going towards the spot but at near the gate of PS, one PCR Van came there with two snatchers and they produced both accused persons before him by stating that they apprehended said accused persons at the instance of Eco van driver namely Neel Kamal. He further deposed that Neel Kamal told him that 20 minutes ago, said boys had snatched mobile phone of one girl from AGCR Enclave and he chased them from AGCR Enclave. He further deposed that the PCR Van driver namely ASI Mahesh Oraon had handed over two mobile phones make Samsung and Oppo to him by stating that these phones were recovered from pillion rider namely Rahul. He further deposed that in the meanwhile, one call came on Oppo mobile phone and he picked up and one lady told him that " ye phone mera hai or isse koi chhin kar bhaga tha or me thane aa rahi hun ". He further deposed that after some time, said lady arrived near gate of PS who revealed her name as Prachi and identified both accused persons by stating that these are the same boys who had snatched her mobile phone and also identified her FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 6/18 mobile phone. He further deposed that said girl Prachi also submits that when her mobile phone was snatched by the accused persons, at that time, the van driver namely Neel Kamal was standing there and he chased the accused persons in his van. He further deposed that ASI Mahesh Oaron also handed over one motor-cycle make Splendor no. DL 5S AV 3343 to him. Thereafter, he recorded statement of ASI Mahesh Oaron vide Ex.PW1/A and prepared rukka Ex.PW3/B and and same was handed over to Ct. Mahesh for for registration of FIR. He further deposed that in the meanwhile, he along with Neel Kamal went to the spot i.e. in front of gate no.3, KKD courts, AGCR Encalve, where he prepared site plan (Ex.PW2/A) at the instance of witness Neel Kamal and thereafter, they went to the PS and Ct. Mahesh handed over copy of FIR & original rukka to him. He further deposed that he seized the said motor-cycle, mobile phone make Samsung and Oppo vide seizure memos Ex.PW1/A, Ex.PW1/H & Ex.PW1/G respectively. He also interrogated both accused persons namely Ravi and Rahul and arrested them vide arrest memos Ex.PW1/B and Ex.PW1/C respectively and their personal search memos Ex.PW1/D & Ex.PW1/E respectively. He further recorded disclosure statements of both accused persons Ex.PW1/J & Ex.PW1/I respectively. He also recorded supplementary disclosure statements of both accused persons vide Ex.PW3/C and Ex.PW3/D respectively as they disclosed in respect of other offences. He recorded statement of Prachi, Neel Kamal, Ct. Pushpender (driver PCR) & Ct. Mahesh and also recorded supplementary statement of ASI Mahesh Oaron and relieved them. Thereafter, he deposited case property in the malkhana and accused persons sent to lock-up. He further deposed that he made inquiry regarding the phone of Samsung and came to know that same is case property of PS GTB Enclave and he informed to DO of PS GTB Enclacve. He further deposed that on the next day, he produced both FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 7/18 accused persons before the Court and sent them to JC and after completion of investigation, he prepared the charge-sheet and same was submitted in the Court.
Witness correctly identified both accused persons before the Court.
PW4 /Ct. Pushpender deposed that he joined the investigation with PW1 and deposed similar in lines of PW1 and same is not being reiterated here for the sake of brevity.
6. Perusal of record further reflects that the victim Prachi was also summoned but she remained unserved despite issuance of summons through DCP concerned. Accordingly, the Victim Prachi was dropped from the list of PWs vide order dt. 03.02.2023.
7. Thereafter, prosecution evidence was closed vide order dated 03.05.2024 and the matter was listed for recording of statement of accused persons u/s 313 Cr.PC.
8. Statement of accused persons namely Ravi and accused Rahul u/s 313 Cr.P.C was recorded on 28.06.2024, wherein both the accused denied allegations so leveled against them by the prosecution and stated that they have been falsely implicated in the present case.
Further accused Ravi in his statement u/s 313 Cr.PC has stated that :
"I know Rahul since he was my classmate. On that date, I was coming from the side of my office as I worked at Amazon. On that date, I met Rahul at Karkari mor. I was on motor cycle bearing no. DL 5S AV 3343. I gave lift to Rahul when one car came and hit us from the front side, due to which we fell down. Thereafter, the driver of the said car as well as police officials arrested us. Police officials asked me for the documents of my vehicle. Since I was not carrying the same, police officials apprehended me."FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 8/18
9. Accused persons did not avail the opportunity to lead defence evidence and the matter was fixed for final arguments.
10. It is argued Ld. APP for the State that from the testimonies of prosecution witnesses, it is duly proved that the mobile phone was stolen by the accused persons and further same was recovered from their possession. It is further argued that mobile phone is identified by the police witnesses through photographs and as such, prosecution has proved its case beyond reasonable doubt and accused persons are liable to be convicted for the offences they are charged for.
11. On the other hand, it is argued by Ld. counsel for accused that the victim has never stepped into witness box to prove her case. It is further argued that the case property is never produced in the Court and that there are contradictions in the testimonies of the witnesses. It is further argued that the prosecution has failed to prove its own case beyond all reasonable doubt and the accused persons are liable to be acquitted for the offences he is charged for.
12. I have heard the arguments so led by Ld. counsel for accused persons and Ld. APP fro the State and perused the case file.
13. It is settled proposition of criminal law that burden lies upon prosecution to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit from the weaknesses, if any, in the defence of the accused.
14. It is the case of the prosecution that on 16.08.2019, accused persons snatched the mobile phone of one Prachi and were arrested by the police on the same day with the help of eye witness Neel Kamal and the mobile FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 9/18 phone belonging to victim Prachi was recovered from them.
15. In order to prove its case, prosecution has examined eye-witness of the incident namely Neelkamal as PW-2. Witness Neel Kamal during the course of his deposition stated that he has seen accused persons snatching mobile phone of one girl of AGCR Enclave and thereafter, he with the help of police officials arrested accused persons. The said witness further correctly identified both accused persons in the court. Witness during the course of deposition stated that victim Prachi came at the spot and identified her mobile phone.
16. The prosecution has further examined ASI Mahesh Oraon and Ct.
Pushpender, both were posted at PCR Cell on the alleged date. Both the said witnesses stated that on the alleged date, Neelkamal approached them in an Eco Van and informed them about two persons on the motorcycle who have snatched mobile phone from one girl. Both the said witnesses further while corroborating the case of the prosecution stated that accused persons were apprehended and two mobile phones were recovered from possession of accused Rahul. Further, both the witnesses deposed that one of the mobile phone belongs to victim Prachi, who came at the spot and identified her mobile phone.
17. On the other hand, it was argued by Ld. Counsel for accused persons that the victim Prachi never stepped into witness box to prove fact of snatching of her mobile phone. It is further argued that witness Neelkamal failed to identify her mobile phone in the court. It is further argued that said mobile phone which was alleged to be snatched by the accused persons and recovered from their possession was never brought before this court and as such, it cannot be stated that prosecution has prove its case beyond reasonable doubt.
FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 10/1818. Although, the victim Prachi was dropped from the list of witnesses, since she failed to appear before this court, however it is pertinent to state in here that PW-2 Neelkamal was the eye-witness of the complete incident. He has witnessed accused persons snatching mobile phone of the victim, apprehended the accused persons and further mobile phone was recovered from the possession of accused Rahul in his presence. Further, both the accused were duly and correctly identified by the witness Neelkamal. Said witness was cross-examined at length by Ld. Counsel for accused, however, no such contradiction brought forth during the deposition of said witness.
19. With regards to arguments so led by Ld. counsel for accused that complainant never stepped into witness box to depose, it is settled proposition of law that it is quality and not the quantity of evidence that is relevant. Reliance can further be placed upon the judgment passed by Hon'ble Apex Court in 'Vadivelu Thivar v. State of Madras' Criminal Appeals No. 24 and 25 of 1957 dated 12.04.1957, wherein it was observed that:
10....It is not necessary specifically to notice the other decisions of the different High Courts in Indian in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely sated as firmly established:
(1) As a general rule, a court can and may act on the of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 11/18 analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after the consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England both before and after the passing of the Indian Evidence Act 1872, there have been a number of statutes as set out in Sarkar s Law of Evidence- 9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized on S. 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 12/18 and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.
As discussed above, eye witness Neel Kamal in his testimony has corroborated the case of the prosecution. Further, witness was cross- examined at length by Ld. counsel for accused, however, nothing has been brought forth to make the testimony of complainant unreliable.
On the other hand, accused failed to brought forth any evidence in support of their defence to show that complainant has motive to falsely implicate accused in the present case.
20. Further, with regards to arguments so led by Ld. counsel for accused that witness Neel Kamal failed to identity the case property, it is pertinent to state in here that both the police officials i.e. ASI Mahesh Oraon and Ct. Pushpender is whose presence said mobile phone was recovered correctly identified the same before the court. Further, IO/ASI Yashpal before whom victim Prachi identify her mobile phone, also correctly identify the case property in court.
21. At this stage, the question which is required to be determined is whether testimony of police officials with regard to identification of case property can be considered as a relevant witness and be read as against accused persons. In this regard, Hon'ble Apex Court in Baldev Singh v. State of Haryana Criminal Appeal No. 167 of 2006 has observed that:
11. Observations that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad(dead) by LRs vs. State of M.P., AIR 2007 SCW 5589 = (2007) 7 SCC 625, it was held as under:-
"[24] In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 13/18 that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.
[25] It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated:
"The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". (emphasis supplied) [26] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated:
"Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
22. In light of law discussed above, now coming upon the present case in hand, both the police officials i.e. ASI Mahesh Oraon and Ct. Pushpender were not only part of the investigation but also were relevant witnesses, since the accused persons were apprehended with the help of eye-witness FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 14/18 Neel Kamal and the recovery of the mobile phone was effected by them. From the testimony of both the witnesses, no infirmity was found in the same. Rather, the testimony of the said police officials was duly corroborated by the testimony of independent witness Neel Kamal who deposed that he with the help of police officials arrested the accused and on the personal search of accused Rahul, two mobile phones were recovered, of which one belonged to victim Prachi.
As such, this court find no ground to disbelieve the testimony of ASI Mahesh Oraon and Ct. Pushpender merely for the reasons that they were police officials. Further, since the said witness correctly identified the case property in the court, the arguments so led by Ld. counsel for accused with regard to non-identification of case property by witness Neel Kamal, cannot be fatal to the case of the prosecution.
23. It is further pertinent to note in here that, both the accused persons in their statements u/s 313 Cr.PC, failed to explain the circumstances resulting into present case against them. Before proceeding further with the answers so given by the accused persons in their statements u/s 313 Cr.PC, this court deems it appropriate to discuss in here law with regard to evidentiary value attached to statement u/s 313 Cr.P.C. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 Hon'ble Apex Court observed as follows:
52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction.
Even under the latter, he faces the consequences in law.
FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 15/18Further, in Hon'ble Apex Court in Pudhu Raja v. State, (2012) 11 SCC 196 observed as follows:
17. It is obligatory on the part of the accused while being examined under Section 313 CrPC, to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances.
(See Transport Commr. v. S. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983 SC 1225] , State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] and Musheer Khan v. State of M.P. [(2010) 2 SCC 748 : (2010) 2 SCC (Cri) 1100] )
24. The accused Rahul during the statement u/s 313 Cr.PC firstly denied being present at the spot at the alleged point of time, however later on he has stated that he was passing through the scene of crime and he saw number of people gathered over there and when he stopped to watch, police officials arrested him.
On the other hand, accused Ravi in his statement u/s 313 Cr.PC stated that on the alleged date time and place, he gave lift to co-accused Rahul and one car came and hit them from front due to which both of them fall down and police officials arrested them.
25. As such, from the bare persual of the statement u/s 313 Cr.PC of accused persons, apart from being vague, same are contradictory in nature. While, accused Rahul in his statement u/s 313 Cr.PC denied being with co- accused Ravi on the alleged date, time and place, co-accused Ravi stated that Rahul was alongwith him at the said point of time.
Furthermore, while as per the version of Rahul, he saw number of people gathered at the spot and when he stopped over there, police arrested him, as per the version of co-accused Ravi, both of them were on FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 16/18 the same motorcycle, when the motorcycle hit the car and police officials arrested them.
26. Furthermore, none of the accused has brought forth any evidence in order to prove their defence. Rather, the accused persons even did not put up the said defence to the defence during the course of their cross- examination.
27. As such, considering the testimony of witness namely Neel Kamal and witness ASI Mahesh Oraon and Ct. Pushpender, the prosecution has duly proved that the accused persons have snatched the mobile phone of one victim Prachi and same was subsequently same was recovered from the possession of one of the accused namely Rahul.
On the other hand, the accused have failed to brought forth any defence in order to rebut the case so set up by the prosecution. In view of the same, both the accused stands convicted for the offence u/s 379/34 IPC(since the accused persons were charged for the offence u/s 379/34 IPC only).
28. Another question which is required to be determined that since accused Rahul is already convicted for offences u/s 379 IPC, can he be also convicted for the offence u/s 411 IPC, since the recovery of the case property was effected from him.
29. In the present case in hand, as per the story of the prosecution, accused persons committed theft of the mobile phone and further case property is also recovered from the possession of accused Rahul. It is not the case of prosecution that theft was committed by some other person and recovery of the case property was effected from some one else. As such, considering the discussion made above, since this court has already observed the accused persons has committed offence u/s 379 IPC, this court find no further reasons to convict the same accused persons for the FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 17/18 recovery of the alleged robbed items by them. Reliance can further be placed upon judgment passed by Hon'ble High Court of Delhi in ' Sunil Mashi @ Silly v. State of NCT of Delhi' dated 14.10.2014, wherein it was observed that:
14.As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under Section 411 IPC. As such, his conviction under Section 411 is set aside.
30. In view of the law and facts discussed above, accused persons namely Ravi @ Dharamveer @ Abhishek @ Pappi and Rahul stands convicted for the offences punishable U/s 379/34 IPC and accused Rahul stands acquitted for the offence punishable U/s 411 IPC.
Announced in the Open Court (ANUBHAV JAIN)
on dated 28h August, 2024 ACJM/SHAHDARA DISTRICT/
KKD COURTS/ DELHI/28.08.2024
Present judgment consisted of 18 and each page bears my signatures.
(ANUBHAV JAIN) ACJM/SHAHDARA DISTRICT/ KKD COURTS/ DELHI/28.08.2024 FIR No. 316/2019 PS : Anand Vihar State Vs. Ravi @ Dharamvir @ Abhishek @ Pappi & anr. Page No. 18/18