Delhi District Court
State vs . Sagar Etc on 15 July, 2013
: 1 :
IN THE COURT OF SH. SHARAD GUPTA
METROPOLITAN MAGISTRATE
DWARKA COURTS, NEW DELHI.
STATE Vs. Sagar etc
JUDGEMENT
(a) The FIR No. of the case : 348/10
(b) The date of commission of : 18.11.2010
offence
(c) The name of complainant : Naveen Kumar s/o Madan Lal
R/o H. No. 168 A, Bhagwati
Vihar, New Delhi.
(d) The name, parentage etc. of : Sagar s/o Hari Ram R/o Vill.
accused Balram Pur, P S Mahawan,
Distt. Mathura UP.
Naresh @ Anna s/o Bhojraj
Singh R/o Village Balram Pur,
P S Mahawan, Distt. Mathura
UP.
Sonu @ Totla s/o Mast Ram
Singh R/o Village Baich P S
sikarpur, Distt. Bulandsahar,
UP.
FIR No : 348/10 State Vs. Sagar etc
: 2 :
(e) The offence complained of/ : U/S 380/34 and 411 IPC
proved
(f) The plea of accused : Pleaded not guilty
(g) The date of institution : 06/01/11
(h) The final order : Convicted u/s 380/34 IPC
(i) The date on which order was : 28.06.2013
reserved
(j) The date of such order : 19.07.2013
k) Brief statement of the reasons
for the decision
1. The case of the prosecution in brief is that on 18.11.2010 at about 3.15
a.m. at house no. B 1 /68 A Bhagwati Vihar Uttam Nagar, all the three accused committed theft of various articles from house of complainant Naveen Kumar in furtherance of their common intention. It is further alleged that accused Sagar s/o Sh. Hari Ram dishonestly received or retained in his possession one small purse containing Rs.71/ one pair of silver anklets and one ear ring knowing or having reason to believe the same to be stolen property. It is further alleged that on 30.11.2010 Naresh @ Anna s/o Bhoj Raj was found in possession of one pair golden topus, one golden ring and one pair of silver anklet which he dishonestly received or retained in his possession and which was recovered at his instance from an alla in his house FIR No : 348/10 State Vs. Sagar etc : 3 : bearing no. D273, Gali No. 55 Mahavir Enclave, Part III and which he received or retained in his possession knowing or having reason to believe the same to be stolen property. It is further alleged that on 5.12.2010 accused Sonu s/o Mast Ram was found in possession of one pair golden topus and one ladies golden ring near Power house chowk which he dishonestly received or retained in his possession knowing or having reason to believe the same to be stolen property.
2. Copies of charge sheet were supplied to the accused persons in compliance of section 207 Cr.P.C. Separate charges for offence u/s 380 /34 and 411 IPC were framed on 20.01.2011 against all the accused persons separately by my ld. predecessor to which the accused persons pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused persons, the prosecution examined as many as ten witnesses in all. PW1 Naveen Kumar is the complainant of the case. PW2 Ct. Lalit Kumar reached at the place of occurrence with PW9 ASI Hemkaran and assisted the IO in arresting of accused Sagar. PW3 Ct. Sunil joined investigation of case with IO PW9 ASI Hem Karan and went for search of the accused persons. PW4 Ct. Rajesh and PW8 Ct. Amrender FIR No : 348/10 State Vs. Sagar etc : 4 : joined investigation of this case with IO PW9 ASI H em Karan and apprehended the accused Naresh @ Anna and Sonu. PW5 H C Jagdish is the duty officer and registered FIR 348/10 and proved the same as Ex. PW5/B. PW6 Ct. Vikas and PW7 Ct. Sanjay joined investigation with IO in search of accused Sonu. PW8 Ct. Amrender joined investigation with IO and assisted in arresting of accused Naresh @ Anna. PW9 is the IO of this case . PW10 Ms Shelly Arora who proved TIP proceeding of case property conducted by her as Ex.PW10/B.
4. The version of the prosecution as adduced in its evidence is that on the intervening night of 17.18/11/2010 PW1 complainant Naveen Kumar had gone to attend the marriage function of his younger sister. When he came back at around 3.15 a.m to take some articles from his house, he saw that articles in his house were scattered and all the three accused were present inside the said house. On seeing the complainant, the accused tried to run away. The complainant apprehended accused Sagar at the spot and remaining accused made good their escape. From possession of accused Sagar one small purse labeled SK Jewllers was discovered which was found to contain Rs.71/ cash , one pair of silver anklets and one ear ring . On checking, the complainant discovered that three rings, two pairs of ear ring, FIR No : 348/10 State Vs. Sagar etc : 5 : one nose pin, one Mang Tika all made of gold and two pairs of anklets and one key ring made of silver were found missing which had been taken by the other accused who had run away from the spot. Complainant informed P S concerned at which, PW9 ASI Hem Karan alongwith PW2 Ct. Lalit on receiving DD No. 4 A Ex. PW9/A reached at the spot. The complainant produced accused Sagar before the police officials and narrated the incident to them. IO recorded statement of complainant Ex.PW1/A, prepared tehrir and sent the same for registration of FIR through PW2 Ct. Lalit. After registration of FIR vide Ex. PW5/A by PW5 H C Jagdish Pd, Duty Officer, PW2 Ct. Lalit came back to the spot with copy of FIR and original rukka. Complainant gave list of stolen articles Ex.PW1/B to the IO. The articles recovered from the possession of accused Sagar at the spot were sealed in a white pullanda with seal of H.K which was seized vide memo Ex. PW1/C. IO prepared site plan Ex.PW9/C. Accused Sagar was arrested vide memo Ex. PW1/D and was personally searched vide memo Ex. PW1/E. His disclosure statement Ex. PW 9/D was recorded. He disclosed regarding involvement of accused Sonu and Naresh in the theft. Accused Sagar was taken to police station and sent to lock up. Case property was deposited in the mal khana. IO tried to search for the co accused but could not find them. That on 30.11.2010 PW9 ASI Hem Karan joined investigation of this case FIR No : 348/10 State Vs. Sagar etc : 6 : with PW8 constable Amrender and PW4 Ct. Rajesh. They reached near Machhi chowk, Uttam Nagar where one secret informer met them and told that one thief namely Naresh @ Anna was standing near Uttam Nagar Chowk and he could be apprehended if raid is conducted. IO comprised a raiding party comprising of himself, PW8 ct. Amrrender and PW4 Ct. Rajesh. IO asked 45 public persons to join the investigation but they refused. Without waisting time, IO raiding party alongwith secret informer reached at Uttam Nagar Chowk, where accused namely Naresh @ Anna was apprehended on pointing out of secret informer. Co accused Naresh @ Anna led police officials to his house D273, Gali no. 55, Mahavir Enclave Part III, where he got recovered one pair of golden topus , one golden ring and one pair of silver anklet from alla in the room which were identified by complainant Naveen Kumar. The golden articles were sealed in pullanda with seal of HK while silver articles were separately sealed in another pullanda with seal of HK. Seal after use was handed over to Ct . Rajesh. Co accused Naresh @ Anna led the police official to spot of theft. Recovered articles were seized vide memo Ex.PW1/H. Pointing out memo Ex. PW4/A was prepared and disclosure statement of co accused was recorded vide Ex. PW4/B. Co accused was arrested vide memo Ex.PW1/F and personally searched vide memo Ex. PW1/G. That on 5.12.2010 PW9 ASI Hem Karan FIR No : 348/10 State Vs. Sagar etc : 7 : again joined investigation of this case with PW8 Constable Amrender in search of accused Sonu. They reached near Power House chowk where one secret informer met them and told that accused Sonu would come on red colour pulsor bike. Raiding party comprising of PW9 ASI Hem Karan and PW8 Ct Amrender was constituted. The accused Sonu was apprehended on pointing out of secret informer. From his possession one pair of golden topas and one lady's golden ring were recovered. The recovered articles were sealed in white cloth pullanda with seal of HK. Seal after use was handed over to constable Amrender . The articles were seized vide memo Ex.PW8/A. Accused Sonu was arrested vide memo Ex.PW8/B and personally searched vide memo Ex.PW8/C. His disclosure statement was recorded vide Ex.PW9/E. He pointed out place of theft and pointing out memo Ex. PW8/D was prepared. complainant has proved receipts of purchase of jewellery articles as Ex. PW1/J and Ex.PW1/K. Photographs of articles have been proved as Ex. P1 and P2. The complainant has identified the articles recovered from accused Sagar as Ex. P3 and has identified articles recovered from accused Naresh @ Anna as Ex. P4. Complainant has identified the articles recovered from accused Sonu as Ex. P5. Judicial TIP of the case property was conducted by PW10 Ms. Shailly Arora vide Ex.PW10/B. During course of evidence the complainant identified all the FIR No : 348/10 State Vs. Sagar etc : 8 : three accused as the thieves who were committing theft in his house. After completion of investigation, charge sheet was filed against the accused persons in court.
5. Thereafter, PE was closed as all material witnesses had been examined. Statement of all the accused u/s 313 read with 281 Cr.P.C was recorded separately by putting entire incriminating circumstances appearing in evidence against them. The accused Sonu stated that he was innocent and had been falsely implicated. He further stated that he was called from his home for interrogation and was kept for four days in the P S and lastly he was implicated by showing false recovery. Accused Sagar submitted that he was innocent. That he was coming from his village when he was apprehended by the police and falsely implicated in this case. Accused Naresh stated that he was innocent. That he was lifted from his home while he was sleeping at about 34 a.m and was falsely implicated in this case. The accused persons chose not to lead any defence evidence and matter was accordingly posted for final arguments .
6. I have heard the ld. APP for the state as well as ld. Legal aid counsel for accused Sonu. Accused Sagar and Naresh did not address arguments FIR No : 348/10 State Vs. Sagar etc : 9 : despite opportunity and in their context , the matter is being disposed of on the basis of material on record. In this case , the prosecution was required to prove beyond reasonable doubt that on 18.11.2010 at about 3.15 a.m. at house no. B 1 /68 A Bhagwati Vihar Uttam Nagar, all the three accused committed theft of various articles from house of complainant Naveen Kumar in furtherance of their common intention.
7. To discharge its onus, the prosecution has examined as many as ten witnesses. The star prosecution witness, complainant Naveen Kumar has been examined as PW1. PW1 Naveen Kumar has deposed that on the intervening night of 17.18/11/2010 he had gone to attend the marriage function of his younger sister at Crystal Garden, Dal mill Road, Uttam Nagar. When he came back at around 3.15 a.m to take some articles from his house, he saw that main gate of house was opened. He went inside and saw that the articles in his house were scattered and all the three accused were present inside the said house. On seeing the complainant, the accused tried to run away. The complainant apprehended accused Sagar at the spot and remaining accused made good their escape. From possession of accused Sagar one small purse labeled SK Jewllers was discovered which was found to contain Rs.71/ cash , one pair of silver anklets and one ear ring . On FIR No : 348/10 State Vs. Sagar etc : 10 : checking, the complainant discovered that three rings, two pairs of ear ring, one nose pin, one Mang Tika all made of gold and two pairs of anklets and one key ring made of silver were found missing which had been taken by the other accused who had run away from the spot. Complainant informed P S concerned. The complainant has identified all the three accused persons as the culprits who were committing theft inside his house. The version of PW1 Naveen Kumar in respect of the incident of 17/18.11.2010 has been corroborated in material particulars by testimonies of PW2 Ct. Lalit and PW9 ASI Hem Karan. PW1 Naveen Kumar has been cross examined at length. During his cross examination by ld. Counsel for accused Sagar and Naresh, PW1 stated that when he came back inside his house two accused were in the first room and the third was in the second room. He further stated that persons standing in both the rooms are visible while standing from gate leading to the gallery and therefore, he was able to see all the accused inside the room. It thus appears that the veracity of PW1 Naveen Kumar could not be shaken and even his cross examination corroborates the version of the prosecution and it can be said with certainty that all the three accused persons were seen committing theft inside his house by PW1 Naveen Kumar.
FIR No : 348/10 State Vs. Sagar etc
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8. Further more, the prosecution has also established the spot arrest of accused Sagar from the spot on 17/18.11 2010 and the recovery of one purse labelled SK Jeweller containing Rs.71/ cash , one pair of anklets and one ear ring from his possession. In this regard , besides the testimony of PW1 Naveen Kumar, the testimonies of Pw9 ASI Hem Karan and PW2 Ct. Lalit can be referred to. PW1 Naveen Kumar as already observed earlier has deposed regarding apprehending of accused Sagar from the spot by him. He has also deposed that one purse labelled SK Jeweller containing Rs.71/ cash , one pair of anklets and one ear ring was found in possession of the accused Sagar. Testimony of PW1 Naveen Kumar in this regard has been corroborated by the testimonies of PW9 ASI Hem Karan and PW2 Ct. Lalit. PW9 ASI Hem Karan has deposed that on 17/18.11.2010 he alongwith PW2 Ct. Lalit reached at the spot on receiving DD No. 4 A Ex. PW9/A that a thief had been apprehended at house no. V168 A, Bhagwati Vihar , Sector A. That he met the complainant PW1 Naveen Kumar at the spot. That the complainant produced accused Sagar before the police officials and narrated the incident to them. That he recorded statement of complainant Ex.PW1/A, prepared tehrir and sent the same for registration of FIR through PW2 Ct. Lalit. After registration of FIR vide Ex. PW5/A by PW5 H C Jagdish Pd, Duty Officer, PW2 Ct. Lalit came back to the spot FIR No : 348/10 State Vs. Sagar etc : 12 : with copy of FIR and original rukka. Complainant gave list of stolen articles Ex.PW1/B to him. The articles recovered from the possession of accused Sagar at the spot were sealed in a white pullanda with seal of H.K which was seized vide memo Ex. PW1/C. That he (PW 9 ASI Hem Karan) prepared site plan Ex.PW9/C. Accused Sagar was arrested vide memo Ex. PW1/D and was personally searched vide memo Ex. PW1/E. His disclosure statement Ex. PW 9/D was recorded. He disclosed regarding involvement of accused Sonu and Naresh in the theft. Accused Sagar was taken to police station and sent to lock up. Case property was deposited in the mal khana. That he (PW 9 ASI Hem Karan) tried to search for the co accused but could not find them. The testimony of PW9 ASI Hem karan in this regard has been corroborated in material particulars by the testimony of PW2 Ct. Lalit who has deposed along the same lines. The witnesses have been cross examined at length by the accused but their veracity could not be shaken.
9. It has been urged on behalf of the accused that the version of PW2 Ct. Lalit does not inspire confidence as he could not identify accused Sagar in court. In this context, it appears that for one thing accused Sagar has been positively identified by the complainant PW1 Naveen Kumar in court. Further more, the recovery of stolen purse containing Rs.71/ cash and the FIR No : 348/10 State Vs. Sagar etc : 13 : jewellery articles from possession of the accused Sagar has been established by the prosecution through testimonies of PW1 Naveen Kumar and PW9 ASI Hem Karan. Further more, PW2 Ct. Lalit even in his cross examination stated that he could not identify the accused as he had seen the accused only once and shortly after the incident , he got transferred to first battalion. It thus appears that PW2 Ct. Lalit could not identify the accused due to lapse of time. It has been observed that human memory is neither supposed to be perfect nor infallible. The reason for PW2 not identifying accused Sagar has thus been established on record and appears to be cogent and in view of the positive identification of the accused by PW1 Naveen Kumar, the non identification of the accused Sagar by PW2 Lalit Kumar is of no consequence. There is thus no merit in this argument of the accused.
10.The prosecution has thus been able to establish that the accused Sagar was apprehended at the spot by PW 1 Naveen Kumar on intervening night of 17/18.11.2010 and that one purse labelled SK Jeweller containing Rs.71/ cash , one pair of anklets and one ear ring was recovered from his possession. The recovery of the said purse also corroborates the version of the prosecution regarding spot arrest of the accused and also connects him FIR No : 348/10 State Vs. Sagar etc : 14 : with the commission of the offence of theft.
11. Further more, the prosecution has also examined PW9 ASI Hem Karan, PW4 Ct. Rajesh and PW8 Ct. Amrender to establish the fact of arrest of accused Naresh @ Anna on 30.11.2010 and recovery of stolen articles including one pair of golden topus, one golden ring and one pair of silver anklets at instance of the accused from an alla in his house. In this context, prosecution has inter alia examined PW9 ASI Hem Karan who has deposed that on 30.11.2010 he joined investigation of this case with PW8 constable Amrender and PW4 Ct. Rajesh. They reached near Machhi chowk, Uttam Nagar where one secret informer met them and told that one thief namely Naresh @ Anna was standing near Uttam Nagar Chowk and he could be apprehended if raid is conducted. IO comprised a raiding party comprising of himself, PW8 ct. Amrrender and PW4 Ct. Rajesh. IO asked 45 public persons to join the investigation but they refused. Without waisting time, IO raiding party alongwith secret informer reached at Uttam Nagar Chowk, where accused namely Naresh @ Anna was apprehended on pointing out of secret informer. Co accused Naresh @ Anna led police officials to his house D273, Gali no. 55, Mahavir Enclave Part III, where he got recovered one pair of golden topus , one golden ring and one pair of FIR No : 348/10 State Vs. Sagar etc : 15 : silver anklet from alla in the room which were identified by complainant Naveen Kumar. The golden articles were sealed in pullanda with seal of HK while silver articles were separately sealed in another pullanda with seal of HK. Seal after use was handed over to Ct . Rajesh. Co accused Naresh @ Anna led the police official to spot of theft. Recovered articles were seized vide memo Ex.PW1/H. Pointing out memo Ex. PW4/A was prepared and disclosure statement of co accused was recorded vide Ex. PW4/B. Co accused was arrested vide memo Ex.PW1/F and personally searched vide memo Ex. PW1/G. The testimony of PW9 ASI Hem karan in this regard has been corroborated in material particulars by the testimonies of PW4 Ct. Rajesh and PW8 Ct. Amrender who have deposed along the same lines. The witnesses have been cross examined at length by the accused but their veracity could not be shaken.
12. The prosecution has thus been able to establish that accused Naresh @ Anna was arrested on 30.11.2010 and stolen articles including one pair of golden topus , one golden ring and one pair of silver anklets were recovered at his instance from an alla in his house D 273, Gali No. 55, Mahavir Enclave - Part III. The recovery of the stolen articles from possession of accused Naresh @ Anna alongwith his positive FIR No : 348/10 State Vs. Sagar etc : 16 : identification by PW1 Naveen Kumar complainant is sufficient to connect him with the commission of offence.
13. Further more, to establish the arrest of accused Sonu on 5.12.2010 and recovery of one pair of golden topus and lady's golden ring from his possession, the prosecution has inter alia examined PW9 ASI Hem Karan and PW8 Ct. Amrender. PW9 ASI Hem Karan has deposed that on 5.12.2010 he joined investigation of this case with PW8 Constable Amrender in search of accused Sonu. They reached near Power House chowk where one secret informer met them and told that accused Sonu would come on red colour pulsor bike. Raiding party comprising of PW9 ASI Hem Karan and PW8 Ct Amrender was constituted. The accused Sonu was apprehended on pointing out of secret informer. From his possession one pair of golden topas and one lady's golden ring were recovered. The recovered articles were sealed in white cloth pullanda with seal of HK. Seal after use was handed over to constable Amrender . The articles were seized vide memo Ex.PW8/A. Accused Sonu was arrested vide memo Ex.PW8/B and personally searched vide memo Ex.PW8/C. His disclosure statement was recorded vide Ex.PW9/E. He pointed out place of theft and pointing out memo Ex. PW8/D was prepared.The testimony of PW9 ASI Hem karan in FIR No : 348/10 State Vs. Sagar etc : 17 : this regard has been corroborated in material particulars by the testimony of PW8 Ct. Amrender who has deposed along the same lines. The witnesses have been cross examined at length by the accused but their veracity could not be shaken.
14. The prosecution has thus been able to establish that accused Sonu was arrested on 5.12.2010 and and stolen articles including one pair of golden topus and lady's golden ring were recovered from his possession. The recovery of the stolen articles from possession of accused Sonu alongwith his positive identification by PW1 Naveen Kumar complainant is sufficient to connect him with the commission of offence of theft.
15.To establish the identity of the case property, the complainant has proved receipts of purchase of jewellery articles as Ex. PW1/J and Ex.PW1/K. Photographs of articles have been proved as Ex. P1 and P2. The complainant has identified the articles recovered from accused Sagar as Ex. P3 and has identified articles recovered from accused Naresh @ Anna as Ex. P4. Complainant has identified the articles recovered from accused Sonu as Ex. P5. Judicial TIP of the case property was conducted by PW10 Ms. Shailly Arora vide Ex.PW10/B which has been duly proved on record. It thus FIR No : 348/10 State Vs. Sagar etc : 18 : appears that the prosecution has been able to establish the identity of the recovered jewellery items and it can be said with certainty that the articles recovered from possession of the accused belonged to the complainant.
16. It has been urged on behalf of the accused that as per the prosecution version, the secret informer did not disclose why accused Sonu would come at the spot and as such the version of the prosecution is unbelievable. In this context it appears that for one thing this argument of the accused is neither here nor there. Furthermore, it appears from the testimony of PW 9 ASI Hem Karan that the accused was going to his village with the stolen jewellery in his possession and as such a reason for presence of the accused at Power House Chowk has been brought on record. There is thus no merit in this argument of the accused.
17. It has been urged on behalf of the accused that the investigation in this case is faulty. That all the articles have not been recovered and therefore, the recovery is false. This argument of the accused also is of no consequence and the prosecution version is not rendered unbelievable only because the accused did not get recovered the entire stolen jewellery.
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18. It has been urged on behalf of the accused that the investigation is not believable and there is no explanation on record why accused Sagar did not get the other co accused arrested in the period of his police custody itself. However this argument of the accused also is neither here nor there. The accused even as per the version of the prosecution were accomplices. It stands to reason that accused Sagar would try to shield his accomplices as much as possible. Furthermore, it also stands to reason that the other accused would have made themselves unavailable when they knew that one of their accomplices had been arrested and that the police would be looking for them. There is thus no merit in this argument of the accused.
19. It has been urged on behalf of the accused that the version of the prosecution is unbelievable as no explanation has been offered on record to show why the accused Sonu would have the stolen articles in his possession. However, this argument of the accused is also of no consequence. Furthermore, it appears from the testimony of PW 9 ASI Hem Karan that the accused was going to his village with the stolen jewelery in his possession and as such a reason for presence of the accused at Power House Chowk with the stolen jewelery has been brought on record. There is FIR No : 348/10 State Vs. Sagar etc : 20 : thus no merit in this argument of the accused.
20. It has been urged on behalf of the accused that there are contradiction in the testimonies of prosecution witnesses. Before proceeding any further it would be germane to refer to the case law on the point. It has been held in Shahbuddin Abdul Kahlik Shaikh v. State of Gujarat, 1995(3) R.C.R. (Criminal) 531 (SC) that where there are contradictions in statement of P.W., then before acting on evidence of such a witness court is required to first consider whether the contradiction was apparent or real, inconsequential or material, explainable or irreconcilable and acceptance of the claim of the witness was to depend on the answer thereon. It has similarly been held in Hardeep v. State of Haryana, 2002 Cri.L.J. 3939 (SC) as follows:
In the background of what has been indicated above, we may now proceed to consider the submissions made by learned counsel for the appellant Mrs. Avinish Ahlwant on merit. In this connection it may be observed, in the criminal cases the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and normal course of human conduct of FIR No : 348/10 State Vs. Sagar etc : 21 : a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. ...It is true, as observed by the Trial Court every contradiction or discrepancy may not necessarily be fatal to the prosecution case but it all depends on the facts and circumstances of the case, such discrepancies and contradictions have to be seen in the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all. (emphasis supplied)
21.It thus appears to be the settled proposition of law that every discrepancy occurring in prosecution evidence is not a contradiction and cannot be considered apart from the broad features of the prosecution case, the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all.
22.Coming to the factual matrix of the case, it appears that the ratio of FIR No : 348/10 State Vs. Sagar etc : 22 : Shahbuddin Abdul Kahlik Shaikh and Hardeep supra are fully applicable to the facts and circumstances of the case. It has first to be considered whether the contradictions sought to be argued are contradictions as such and then their bearing on the prosecution version has to be considered.
23.It has been urged that while PW8 Ct Amrender has stated that he came at the PS on 5.12.2010 on receiving message of IO on his phone, PW9 ASI Hem Karan has deposed that PW8 Ct Amrender was available in the P S on 5.12.2010. In this context it appears that for one thing PW 9 ASI Hem Karan had deposed that he did not know whether Ct Amrender was on any duty or on rest on 5.12.2010. and that the said witness was available in the PS. This being the factual proposition, I am unable to agree with the learned counsel for the accused that there is a contradiction in the testimonies of the prosecution witnesses. It appears that when PW 9 ASI Hem Karan had stated that he did not remember whether PW 8 Ct Amrender was on any duty on 5.12.2010 or not, nothing more can be read into his statement. There is thus no contradiction in the testimony of the prosecution witnesses as alleged and there is no merit in this argument of the accused.
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24.It has been urged on behalf of the accused that while PW 8 Ct Amrender has stated that the complainant was available at his house on 5.12.2010 when the accused was taken for pointing out, PW 9 ASI Hem Karan has deposed that he could not tell if the complainant was at his home at the said time or not. It appears that there is no contradiction as alleged between the statements of the prosecution witnesses and merely because PW 9 ASI Hem Karan could not tell if the complainant was present at the spot or not, the same would not amount to a contradiction.
25.It has been urged that while PW 9 ASI Hem Karan has stated that he and PW 8 Ct Amrender went for investigation of the case on 5.12.2010 on foot, PW 8 Ct Amrender has deposed that he and PW 9 ASI Hem Karan had gone for investigation of the case on the motorcycle of the IO PW 9 ASI Hem Karan. However, the said discrepancy is not material having regard to the broad features of the prosecution version. The discrepancy does not effect the broad features of the prosecution version and the version of the prosecution can not be disbelieved on this ground alone.
26. It has been urged on behalf of the accused that they have been falsely implicated in this case. It appears that there is nothing on record even by FIR No : 348/10 State Vs. Sagar etc : 24 : way of a suggestion to afford any reason as to why the accused were singled out by the prosecution witnesses and falsely implicated, as alleged by the accused. There is no hint of any acrimony past or present between the police officials and the accused and in these circumstances, even from the standpoint of a reasonably prudent man, there is no reason to disbelieve the testimony of the police officials and the plea of false implication does not appear to be believable. Furthermore, as per the version of the prosecution, all the three accused were found in possession of various stolen articles. There is nothing on record to suggest by the prosecution would go to great length and even plant jewellery on the accused persons. In this circumstance also, the plea of false implication does not appear to be believable.
27.It has been urged on behalf of the accused that no public witness was joined in this case by the IO and as such the prosecution version is unbelievable. It appears to be the settled law that merely because public witnesses have not been joined in investigation does not falsify the case of the prosecution. Reference might be made here to the pronouncement of the Hon'ble Apex Court in Tahir Vs State 1996 SCC 515 wherein the Hon'ble Apex Court has considered the value of the evidence of police officials and has observed as FIR No : 348/10 State Vs. Sagar etc : 25 : follows:
"No infirmity attaches to the testimony of police officials merely because they belong to police force and there is no rule of evidence which lays down that conviction cannot be recorded on the evidence of police officials, if found reliable, unless corroborated by some independent evidence. The rule of evidence however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials after careful scrutiny inspires confidence and is found to be trustworthy and reliable, it can form the basis of a conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the credit worthiness of the prosecution witnesses."
28. When the test laid down in Tahir Supra is applied to the facts of the present case, it appears that the testimonies of the prosecution witnesses have remained credit worthy and believable. The version of the prosecution witnesses inspires confidence and the witnesses have corroborated each other in material particulars and the version of the prosecution has also been corroborated by the documentary evidence on record. It appears that the ratio of Tahir supra is fully applicable to the facts and circumstances of the case and the non joining of public witnesses does not make the prosecution FIR No : 348/10 State Vs. Sagar etc : 26 : case unbelievable.
29.In view of the aforesaid discussion, the prosecution has discharged its onus to prove the guilt of the accused beyond reasonable doubt. The guilt of the accused has been established on record. Accordingly, the accused are convicted for offence u/s 380/34 IPC. Let the accused be heard on the quantum of sentence separately.
ANNOUNCED IN THE OPEN ( SHARAD GUPTA )
COURT ON 19th July, 2013 METROPOLITAN MAGISTRATE
DWARKA COURTS, DELHI.
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FIR No : 348/10 State Vs. Sagar etc