Delhi District Court
State vs . Subhash And Another on 8 October, 2012
IN THE COURT OF MS. JYOTI KLER: METROPOLITAN
MAGISTRATE11 (SOUTH), SAKET COURTS:NEW DELHI
FIR No. 03/10
U/s 392/411/34 IPC
PS Fatehpur Beri
State Vs. Subhash and Another
JUDGMENT:
a The Sl. No. of the case : 374/02/12
b The date of commission : 01.01.2010
c The name of complainant : Vijay Singh
d The name of accused : 1) Subhash S/o Ram Chander
R/o F198A, Phase VI ,
Aaya Nagar, New Delhi.
2) Suresh S/o Sh. Mayuk
R/o Arvind ka Makkan
F Block, Aaya Nagar
New Delhi - 74.
e The offence complained of : 392/411/34 IPC
f The plea of accused : Pleaded not guilty
g The final order : Conviction
h The date of such order : 08.10.2012
i The date of institution
of the case : 15.02.2012
j Date of hearing final arguments
and adjourning the matter
for orders : 04.10.2012
BRIEF REASONS FOR THE DECISION:
1. Accused persons i.e. Subhash and Suresh have been sent to face trial for commission of offences punishable u/s 392/411/34 IPC with the FIR No. 03/10 PS Fatehpur Beri 1 of 6 allegations that on 01.01.2010 at about 9.30 PM at M.G. Road, near Arjan Garh Metro Station, New Delhi, the above two accused persons along with one more co accused, who could not be arrested during investigation, in furtherance of their common intention hired the Taxi bearing No. DL1VB5107 being driven by complainant Vijay Singh and thereafter moved Rs.150/, one mobile phone, make Nokia, model 1200 and stereo make Soni out of the possession of complainant without his consent and with dishonest intention and in order to committing of the aforesaid act, they voluntarily caused hurt to the complaint by slapping him and fear of instant death / hurt by putting a sharp weapon on his person.
2. Investigation was conducted. Accused persons were arrested on the spot and entire stolen property except Rs.150/ were recovered from their possession along with a screw driver (pechkas) which probably was used as a sharp weapon to put the complaint under fear of instant death.
3. Challan was filed in the court on 15.02.2012. Cognizance of the offence was taken on the same day. Copy of challan was supplied to the accused persons in compliance of Section 207 Cr.P.C.
4. Arguments were heard on the point of charge. A prima facie case for the offence punishable u/s 392/34 IPC was made out against both the accused persons. Charge accordingly was framed against them on 24.05.2012 to which they pleaded not guilty and claimed trial.
5. During trial, seven prosecution witnesses have been FIR No. 03/10 PS Fatehpur Beri 2 of 6 examined. PW1 is the complainant himself, who has reiterated the contents of the complaint on oath and proved the complaint Ex.PW1/A, seizure memo of the phone Ex.PW1/B, seizure memo of the stereo and screw driver Ex.PW1/C, and arrest memo and personal search memo of the accused persons, which are Ex.PW1/D to Ex.PW1/G. He has identified the case property i.e. mobile phone, stereo and screw driver which are Ex.P1 (colly).
6. PW3 and PW5 are the police officials Ct. Mahender and Ct. Surender respectively who had apprehended the accused at the instance of complainant.
7. PW2 Const. Mukhtiar Ali and PW4 HC Ratan Singh are formal witnesses, who have proved DD No. 28B and 36B, and FIR respectively. DD No. 28B is Ex. PW2/A and DD No. 36B is Ex.PW2/B. Ex.PW4/A is the FIR and Ex.PW4/B is the endorsement on the rukka.
8. PW7 ASI Ramphal is the IO of the case, who has deposed about the steps of investigation undertaken by him. He has proved the rukka Ex.PW7/A and site plan Ex.PW7/B.
9. PW6, Jai Prakash is a formal witness, he has been called as the complaint was using the sim provided to Jai Prakash by the company, in his mobile phone. This witness has proved the aforesaid fact.
10. All the incriminating evidence was put to the accused persons u/s 313 Cr.P.C., which has been denied by them in toto. It is stated by the FIR No. 03/10 PS Fatehpur Beri 3 of 6 accused person that they had a fight with the complainant over taxi fare after which they were falsely implicated in this case.
11. Final arguments have been heard.
12. Ld. APP submits that the case has been supported by PW1, who is an independent witness. Hence, accused persons should be convicted. Ld. Defence Counsel, on the other hand, submits that there are many contradictions in the testimony of prosecution's witnesses and hence, they should not be relied upon.
13. I have considered the rival contentions and perused the entire record.
14. In their defence accused persons have taken a plea that they had a fight with the complainant over taxi fare after which they were falsely implicated. However, no such suggestion was given to the complainant during his cross examination. Further no complaint was made by the accused persons to the senior officials about false implication which is against natural human conduct.
15. Ld. Defence counsel has relied upon certain contradictions. It is argued by him that all the PWs stated that the accused were wearing pant and shirt on the day of incident, which is not possible as it was chilled winter on 01.01.2010 and none could have been able to move out without a sweater in such a weather. This submission of Ld. Defence counsel is irrelevant as accused persons have admitted that they had met the FIR No. 03/10 PS Fatehpur Beri 4 of 6 complainant on the day of incident. They have admitted their presence on the spot, and took the defence that they were falsely implicated.
16. Ld. Defence counsel also argued that there are contradictions in the testimony of PWs about the distance from the toll at which accused persons were apprehended. This argument is also immaterial considering that the witnesses who have deposed in the court are not experts and cannot be expected to give meticulously calculated measurements.
17. Ld. Defence counsel further argued that as per the deposition of PW1, entire proceedings were conducted in the PS which makes the investigation illegal and entitles the accused persons to acquittal. I do not agree with the submissions of Ld. Defence Counsel. Under Punjab Police Rules, it is mandatory for the police officials to conduct the investigation on the spot but non observance of these rules do not make the investigation illegal but only bad in law. It has been held by the Hon'ble Apex Court in Zindar Ali S.K. Vs. State of West Bengal and Another, 2009 III AD (SC) 7 that the defence cannot take advantage of such bad investigation where there is clinching evidence available to the prosecution. Further, Punjab Police Rules have been made with a view to regulate the conduct of police officials and non observance of these rules alone is not sufficient to throw the prosecution's case, where creditworthy testimony is available.
18. The last argument raised by Ld. Defence Counsel is that the case property was produced in unsealed condition and this is sufficient to FIR No. 03/10 PS Fatehpur Beri 5 of 6 raise a doubt upon the story of the prosecution. I do not agree with the submission of Ld. Defence counsel. Cr.P.C. does not provide that the case property should be sealed under all circumstances. Purpose of putting seal on the case property is to prevent tempering. However, case property in the present incident consisted of items which could not have been tempered and not the items where tempering is easily possible like liquor seized under Excise Act, spurious substances, psychotropic drugs or Narcotics etc.
19. Testimony of PW1 is credit worthy. He has stood the test of cross examination. He has identified the accused persons before the court. I have no reason to disbelieve his testimony. Hence, I am of the considered opinion that the prosecution has been able to prove its case against the accused persons beyond reasonable doubts, who are accordingly convicted of the offence u/s 392/34 IPC.
Pronounced in open court (Jyoti Kler)
On 08 October, 2012
th
M.M11(South)/Saket
New Delhi
FIR No. 03/10 PS Fatehpur Beri 6 of 6