Delhi District Court
State vs . Dev Kishan on 31 January, 2011
1 IN THE COURT OF MS. JASJEET KAUR, METROPOLITAN MAGISTRATE, NEW DELHI STATE VS. DEV KISHAN FIR No. 365/2001 PS Connaught Place U/s 382/34 IPC 31.1.2011 ######### # ####################### # ######## # ######################### ####### # ######### # ########################### # ########################### # ############################## ########## # ########## ################### ### ## #### ###### ##### ##### ### ###### # ##################### ############# # ############## # #################### # ########################### # ####################### # ######### # ############### # ######### # ###################### # ######### BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE: 1. The brief facts of the case from the perspective of prosecution are that on 20.7.2001 at about 1.40 PM, near Atma Ram House, Tolstoy Marg, Connaught Place, FIR No. 365/01 2 accused Dev Kishan in furtherance of his common intention with his unknown accomplices (since not arrested) committed theft of a bag belonging to one Daya Ram Aggarwal containing a passport, Rs. 25,000/ in cash, clothing and Pooja articles etc. from the possession of his driver after having made preparation for causing restraint or hurt in order to commit theft and to effect the escape of his accomplices after committing theft. 2. In pursuance of the common intention of the accused persons involved in the offence, one of the unknown accomplices of the accused Dev Kishan persuaded the driver, that is, the complainant Ramesh Kumar to come out of the car by making the complainant believe that few of his currency notes had fallen down on the road and the other unknown accomplice had in the meantime fled with the bag of Sh. Daya Ram Aggarwal which was kept on the back seat of car. It is the alleged case of prosecution that the accused Dev Kishan had restrained the complainant by catching hold of the hand of the complainant Ramesh Kumar in order to facilitate the escape of the co accused who had fled with the impugned bag of his employer Daya Ram Aggarwal. On these facts, charge sheet was filed against the accused Dev Kishan and the accused was sent for trial for the offence u/s 379/34 IPC. 3. Upon the accused pleading not guilty to the charge framed against him in court for offence u/s 382/34 on 26.9.2002, prosecution was granted an opportunity to FIR No. 365/01 3 adduce evidence in support of its case. Prosecution examined 6 witnesses in order to prove its case. 4. PW1 Sh. Ramesh Kumar deposed that on 20.7.2001, he was present at Atma Ram House, Tolstoy Road at about 1.30 or 2.00 PM and was sitting in a Tata Safari the number of which he could not remember. In the meantime, one unknown person came there and knocked at the glass of the car on the driver side. He said that he had pulled down the glass and the unknown person had informed him that his money had fallen on the road. PW1 further deposed that thereafter, he opened the door and noticed that some currency notes in the denomination of Rs. 10/ each were lying on the road and while he was lifting them, in the meantime he heard some noise of knocking on the left door of back seat of the car and when he turned back he saw that someone was running away with the bag which had been kept on the back seat in the car. He deposed that he chased the person who had fled with the bag but someone caught him and he was restrained. He said that he snatched his hand from the grip of that person and continued to pursue the person who had run away with the bag but he could not apprehend him and thereafter, he came back at the spot where he had parked his car. He said that he told the person who had caught hold of his hand that due to him, the person who had stolen the bag had managed to run away. PW1 also said that in the meantime, Jitender Kumar whose car he used to drive, had reached the spot and police had also reached at the spot. Thereafter, the police took them to PS Connaught FIR No. 365/01 4 Place. Police recorded his statement Ex. PW1/A. He reaffirmed that he had also given to the IO some currency notes in the denomination of Rs. 10/ each, which he had lifted from the spot and the same were seized by IO vide seizure memo Ex. PW1/B. He also deposed that he had apprehended the person who had told him about the falling of the currency notes on the road and had handed that person over to police. He said that he had identified the accused and the accused was arrested vide arrest memo Ex. PW1/C and was personally searched vide personal search memo Ex. PW1/D. The currency notes which were already on court file were exhibited as Ex. P1 to P7. 5. PW1 Ramesh Kumar was crossexamined by Sh. S.N. Pandey, Ld. Counsel for accused. During his crossexamination, he stated that the police had taken him to the Police Station and had interrogated him at Police Station. He said that his signatures were also obtained at the police station and thereafter, he was sent to his home. He said that after one or two days the police had again called him but he did not remember whether they had further obtained his signatures on any papers or not. He did not remember on which papers the police officials had obtained his signatures. He said that he had not read the papers before putting his signatures on the same at the behest of police officials. He also said that he did not know who had knocked the door of his car for drawing his attention to the fallen notes. He deposed that he could not recognise the person who had knocked the door of the car or the person who had FIR No. 365/01 5 run away with the bag. 6. At that stage Ld. APP for State had requested for permission to reexamine the witness in view of the fact that the witness was deposing in contrary manner on the aspect of identification of the accused in his examination in chief and his cross examination. Request was allowed by the court. During his reexamination by Ld. APP for State, PW1 had clarified that both of his statements, that is the one he had given during his examination in chief and also the one he had given in his cross examination were correct. He categorically said that the accused present in the court was the same person who had caught hold of his hand and whom he had handed over to the police and therefore he clarified that the accused was not the person who had told him about the fallen currency notes but was the person who had caught hold of his hand in order to restrain him. 7. PW1 Ramesh Kumar was again crossexamined by the Ld. Counsel for accused. During his crossexamination by counsel for accused PW1 stated that he had told the police the same fact which he had deposed in the court during his re examination. 8. PW2 Sh. Jitender Kumar Kejriwal deposed that he did not remember the exact date and month of the incident, but said that the incident had taken place in the FIR No. 365/01 6 year 2001. He said that on the day of incident he alongwith his fatherinlaw Sh. Daya Ram Aggarwal and his driver Ramesh Kumar had parked their car in front of Punjab National Bank Building. The luggage of his father in law was inside the car. He said that he himself went inside the building with his father inlaw to meet some person, while his driver was waiting inside the car. He further deposed that when they came out, the driver told them that the bag had been taken away by somebody from the back seat of the car and the driver had apprehended someone and had informed him that the person apprehended by him had helped the person who had fled with the bag. He said that they went to the Police Station and informed the police about the incident. PW2 failed to identify the accused in the court. 9. Ld. APP for State had made a request to the court for grant of permission to crossexamine PW2 as the witness was not supporting his earlier statement. The said request was allowed by the court. During his crossexamination by ld. APP for the state, PW2 denied the suggestion that the accused Dev Kishan present in the court was the same person who was arrested by the IO and who had helped another person in escaping with the bag of his father in law. He, however, admitted that he had signed the arrest memo and personal search memos of the accused Ex. PW1/C and Ex. PW1/D respectively. He did not remember whether the police had seized the currency notes of Rs. 10/ which were handed over to the police by his driver Ramesh Kumar. He denied the suggestion that he was deposing falsely and he was not identifying the FIR No. 365/01 7 accused deliberately or knowingly and he also denied the suggestion that he was deposing at the instance of the accused. 10. PW3 Sh. Daya Ram Aggarwal deposed that he did not remember the exact date and month of the incident, he however said that the incident had taken place in the year 2001 and on that day, he and his soninlaw Sh. Jitender Kajriwal, alongwith their driver, Ramesh Kumar had parked their car in front of Punjab National Bank building and his luggage was inside the car. He also said that he, himself went inside the building with his son in law Jitender Kajriwal to meet some person. He, however, said that they had left their driver inside the car and deposed that when they came out of the building their driver told them that the bag had been taken away by somebody from the back seat of the car and the driver also told them that he had apprehended the person who had helped the unknown person in escaping with the impugned bag . He said that they went to the PS alongwith their driver and the person apprehended by the driver and at the police station they informed the police about the incident. He however, deposed that the person apprehended by the driver was not present in the court. 11. Ld. APP for State was permitted to cross examine the witness as the witness was not fully supporting his earlier statement. In his cross examination by Ld. APP for State PW3 denied that the accused Dev Kishan who was present in the court was the FIR No. 365/01 8 same person who was arrested by IO and who had helped another person in running away with his bag. He also denied the suggestion that the police had also seized some currency notes of Rs 10/. He further denied the suggestion that he was deposing falsely. He also denied the suggestions that that he was not identifying the accused deliberately or knowingly and that he was deposing at the instance of the accused. 12. PW4 ASI Dalip Singh deposed that on 20.07/.01 he was working as duty officer in police station from 4 pm to 12.00 midnight and on that day he had received a rukka from Delhi Home Guard Constable Devender Kumar at about 4.15 pm which was sent by SI Jagdish Yadav. He said that on the basis of this rukka he had recorded FIR no 365/01 under section 379/34 IPC, carbon copy of which was exhibited as Ex. PW 4/A. He said that he had made an endorsement Ex. PW 4/B on rukka. He also produced the original FIR which was seen and returned. 13. PW5 ASI Kaptan Singh deposed that on 20.07.01 he was posted at Connaught Place Police Station as ASI and on that day on receipt of DD No. 4D he alongwith Delhi Home Guard Constable Devinder Kumar went to the spot i.e. Tolstoy Marg, near Atmaram House, and in meantime SI Jagdish Yadav had also reached at the spot. Complainant Ramesh Kumar driver of TATA Safari no DL 4C M 4183 got recorded his statement to SI Jagdish Yadav. SI Jagdish Yadav prepared a rukka and the same was handed over to Delhi Home Guard Constable Devinder who took it to FIR No. 365/01 9 PS for registration of FIR and came back to the spot with a copy of FIR and the original rukka. He said that the seven currency notes of Rs 10 each were also taken into possession vide seizure memo Ex. PW 1/B and thereafter, the accused was arrested in the case. He said that his statement was also recorded by the IO. 14. PW6 SI Jagdish Yadav, deposed that on 20.07.2001 he was posted at PS Connaught Place and on that day at about 2/2.30 pm he was on patrolling duty on Tolstoy Marg. He said that during the patrolling he saw that a crowd had gathered near a pan shop located near Atma Ram House. He said that he had met one Ramesh Kumar who was the driver of vehicle no DL4CM 4183 Tata Safari and had recorded his statement Ex. PW 1/A and had also put his own endorsement Ex. PW 6/A on this statement of the complainant Ramesh Kumar. He said that he had prepared a rukka and had handed over the same to Delhi Home Guard Constable Devender Kumar who had arrived at the spot alongwith ASI Kaptan Singh. He further deposed that he had also seized 7 currency notes of Rs 10/ each vide seizure memo Ex. PW 1/B and said that the said currency notes were thrown by the accused person on the road to distract the complainant by making the complainant believe that the currency notes belonging to him had fallen around his vehicle. He further deposed that accused Dev Kishan was apprehended by the complainant since he was associated with the accused who had run away with the bag of the employer of the complainant FIR No. 365/01 10 containing Rs 25,000/ alongwith the other documents and articles. He said that he had arrested the accused vide personal search memo Ex. PW1/D and arrest memo Ex. PW 1/C and deposed that he had also recorded the disclosure statement of the accused Ex. PW 5/A. He also said that he had prepared site plan Ex. PW 6/B at the instance of the complainant. He also deposed that he had tried to search for the co accused as well as the case property but the same could not be found. He confirmed that he had recorded the statement of witnesses and had prepared the challan and had filed same in the court. 15. PW6 was cross examined by Sh. Santosh Kumar Ld. Counsel for the accused. In his cross examination he deposed that the currency notes were given to him by the complainant. He did not remember the number of the currency notes. He said that he had reached at the spot at about 2/2.30 pm. He denied the suggestion that the case against the accused was a false case. 16. After the prosecution closed its evidence, statement of the accused u/s 313 Cr.P.C. was recorded on 27.1.2011 wherein the accused claimed that he had been falsely implicated in the present case by the complainant in the connivance with the IO as the IO used to demand from him some illegal monthly gratification for allowing him to run his Paan Shop. The accused further said that when he had refused to pay FIR No. 365/01 11 the illegal gratification to the IO, he was falsely implicated in the present case by the IO. He chose not to lead any evidence in his defence. 17. Final arguments were heard from the Ld. APP for State as well as from the Ld. Counsel for the accused on 29.1.2011. 18. Ld. APP for State had argued that the case of the prosecution had been proved as per law and although two public witnesses namely Sh. Jitender Kumar Kajriwal and Daya Ram Aggarwal had failed to identify the accused when their deposition was recorded in the court, however, the third witness i.e. complainant Ramesh Kumar had correctly identified the accused and also the identity of the accused stood established in view of the fact that the accused was apprehended by the complainant himself and was arrested from the spot after the incident. Therefore, the prosecution had proved its case beyond reasonable doubt and had fully established that accused Dev Kishan was the person involved in the offence. 19. Ld. Counsel for accused on the other hand had advanced the following arguments in support of the accused: (a) Ld. Counsel for the accused argued that no judicial TIP of the accused was got conducted through the eye witnesses, namely, Ramesh Kumar, Jitender Kumar Kajriwal and Daya Ram Aggarwal and hence identification of the accused for the first FIR No. 365/01 12 time in court by one of the eye witness namely Ramesh Kumar was of no consequence and could not be used against the accused for holding him guilty of offence u/s 382 IPC read with 34 IPC. (b) Ld. Counsel for the accused also argued that two out of the three eye witnesses had turned hostile and had failed to identify the accused in court and hence their testimony could not be used against the accused. Ld. Counsel for the accused further argued that this court cannot use the testimony of the remaining single witness against the accused in view of the fact that the other two witnesses of the prosecution who were allegedly present at the spot at the time of arrest of the accused had turned hostile. (c) Ld. Counsel for accused also contented that the third eye witness Ramesh Kumar had although supported the prosecution version of the case in his examination in chief, however, even he had turned hostile in his crossexamination on the point of identification of the accused and hence his testimony was not reliable and could not be used against the accused. Ld. Counsel for accused had contended on the basis of above mentioned three arguments that there was no incriminating evidence against the accused in the present case and therefore, the accused should be acquitted in the present case. 20. I shall now deal with the arguments advanced by the Ld. Counsel for accused in the support of the accused. FIR No. 365/01 13 (a) Firstly, Ld. Counsel for the accused has argued that no judicial TIP of the accused was got conducted through the eye witnesses, namely, Ramesh Kumar, Jitender Kumar Kajriwal and Daya Ram Aggarwal and hence the identification of the accused for the first time in court by one of the eye witnesses namely Ramesh Kumar was of no consequence and could not be used against the accused for holding him guilty of offence u/s 382 IPC read with 34 IPC. In this respect it is pertinent to note that the accused had been apprehended by the complainant Ramesh kumar at the spot itself and was thereafter arrested from the spot itself by the IO. It is not the case of the prosecution that the accused had absconded from the spot and was subsequently apprehended and hence, his identity was in dispute, rather the prosecution version of the case is that the complainant had himself apprehended the accused at the spot and had thereafter, handed him over to the police. Hence, in such circumstances, there was no requirement for getting conducted a judicial TIP of the accused through the eye witness i.e. the complainant Ramesh Kumar in order to establish his identity. Also during his testimony in the court the complainant has reaffirmed the prosecution version of the case that he had apprehended the accused and had handed him over to the police on the day of the incident. Therefore, the Ld. Counsel for accused cannot dispute the identity of the accused on the ground that no judicial TIP of the accused was got conducted through the eye witness. 21. In this respect the Hon'ble Supreme court of India has observed in the case FIR No. 365/01 14 Malkhan Singh & Ors. Vs. State of Madhya Pradesh, ARI 2003 SC 2 669, 2003(2) ALD Cri 191 that although ordinarily, it was the safe rule of prudence to look for corroboration of the sworn testimony of witnesses in the court as to the identity of the accused who were stranger to them, in the form of test identification proceedings yet this rule was subject to just exceptions for instance in cases where the court was impressed by the testimony of a particular witness which appeared to be reliable to the court without a test identification or other corroboration. Observations made by the Hon'ble Supreme Court of India in Para 7 and 17 of the judgment reproduced below are noteworthy in this regard. ``7. It is right to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. FIR No. 365/01 15 17. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must be got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court on August 21, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances, if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record.'' Similar views were also expressed by the Hon'ble High Court of Delhi in the case of Delhi State Vs. Kiran, 2010 DRJ (117) 647 decided on 12.5.2010 wherein, one of the prosecution witness, namely Jawahar Lal had vividly described the accused Kiran to the police and had stated that for three consecutive days prior to the kidnapping, he had seen the woman roaming around in the area, the Hon'ble High FIR No. 365/01 16 Court relied upon the testimony of this and another witness and observed that the two witnesses had definitely had a reasonably good opportunity to identify the accused and to fix her appearance in their minds. The observations made by Hon'ble High court of Delhi in paras 11 and 13 of the judgment are noteworthy in this regard. ``11. On a consideration of the rival submissions of the parties and after perusing the precedent cited at the Bar and the statements of the prosecution witnesses recorded by the investigating agency, I am of the considered view that the facts of the instant case justify interference in revision by this Court. The reasons are twofold. On a conspectus of the facts, it is more than apparent that the accused Kiran played a lead role in enticing the kidnapped child by offer of meals, sweets and new clothes. Kiran accused hung around the Butela Market for a number of days preceding the incident, possibly assessing the situation and working out the modus operandi of the actual kidnapping. The prosecution witnesses have in their statements before the police borne testimony to this. Prosecution witness Jawahar Lal has vividly described accused Kiran to the police and stated that for three days continuously before the kidnapping, he had seen the accused woman roaming around in the Butela Market and squatting there and that she was about 35 years of age and was fair complexioned and that he had even spoken to her. Prosecution witness Indresh also stated that on the day of the occurrence the accused Kiran had come to her home asking for Amit, the son of her elder sister. Thus, both these witnesses had a reasonably good opportunity to identify the accused to fix her appearance in their minds and the mere fact that the investigating agency neglected to hold a proper test identification parade, therefore, to my mind, is wholly irrelevant. 13. In my view, therefore, given the facts of the instant case, the nonholding of the test identification parade by itself cannot be a ground for the discharge of the accused/respondentKiran.''
In the present case also, the eye witness Ramesh Kumar had himself apprehended the accused and had handed him over to the police, therefore, he had seen the accused Dev Kishan for a reasonable length of time to be able to fix the appearance of the accused in his mind and therefore, there is no reason to suspect that the accused was wrongly identified by this prosecution witness Ramesh Kumar in the FIR No. 365/01 17 court.
(b) The second contention of the Ld. Counsel for accused is that two out of the three eye witnesses had turned hostile and had failed to identify the accused in the court and, therefore, their testimony had to be totally discarded and also the Ld. Counsel for the accused has contended that this court cannot rely upon the testimony of remaining sole eyewitness Ramesh Kumar in view of the fact that two other eye witnesses, who had also allegedly seen the accused on the day of incident and were present at the spot at the time when the accused was arrested had turned hostile when their deposition was recorded in the court. In this context, it is pertinent to note that these two eye witnesses namely Jitender Kumar Kajriwal and Daya Ram Aggarwal had supported the prosecution version of the case to the extent that an incident as alleged by the prosecution wherein theft of one bag belonging to Mr. Daya Ram Aggarwal which contained Rs 25,000/ in cash, a passport, clothes and pooja articles was made from their car parked outside Punjab National Bank. However, these witnesses have merely failed to identify the accused in the court but have not denied the fact that the incident as alleged by the prosecution had indeed occurred. And as regards the question of identity of the accused, the accused has been duly identified by the third eye witness that is, the complainant Ramesh Kumar.
22. In this respect, the Hon'ble Supreme Court of India has held in several cases including the case of Syed Ibrahim Vs. State of AP, 2006, 10 SCC 601, Vedivelu FIR No. 365/01 18 Thevar Vs. State of Madras, 1957 AIR SC 614; State of Uttar Pradesh Vs. KishanPal, 2008 (8) JT 650: 2008 (11) SCALE 233 that in the Indian Jurisprudence no particular number of witness are required to prove any fact. The Hon'ble Supreme Court of India has observed in these and several other cases that Section 134 of the Indian Evidence Act, 1872 does not insist upon the requirement of any fixed number of witness to prove any particular fact.
Section 134 of Indian Evidence Act, 1872 provides as under -- Number of Witnesses -- No particular number of witnesses shall in any case be required for the proof of any fact.
In this respect similar observations were also made by the Hon'ble Supreme Court of India in the case of Vedivelu Thevar Vs. State of Madras, 1957 AIR 614 1957 SCR 981, wherein, in a murder trial two out of three eye witnesses had turned hostile and the Hon'ble Supreme Court of India had upheld the conviction of the accused on the sole testimony of the remaining single eyewitness. In this case Hon'ble Supreme Court of India had made an observation that the Indian Evidence Act, 1872 did not prescribe that any minimum number of witnesses were required to prove any particular fact and if the sole testimony of a single witness who is a reliable witness is rejected or not relied then the courts would indirectly encourage suborination (perjury) of witnesses that is, the witness will be encouraged to commit perjury. Paras 11 and 13 of the judgment reproduced below are noteworthy in this regard ``11. In view of these considerations, we have no hesitation in holding that the FIR No. 365/01 19 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 due 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 I Law of Evidence 9th Edition, at pp. 1 100 and 1 101, 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 in 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 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. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either wayit may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to FIR No. 365/01 20 its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.''
(c) As regards the last contention of Ld. Counsel for accused that even the third eye witness i.e. the complainant Ramesh Kumar who had fully supported the prosecution version of the case in his examination in chief had in fact turned hostile in his crossexamination on the point of identification of the accused and hence his testimony was not reliable and could not be used against the accused. In this respect it is pertinent to note that the complainant was examined in chief as PW1 and had deposed that on the day of incident, when he was sitting in the car of his employer parked outside Punjab National Bank someone had knocked at the glass of the driver side and had told him that his money had fallen on the road. He had also deposed that when he opened the door to lift currency notes of Rs. 10/ lying on the road, he had heard noise of knocking on the left door of back seat and saw someone running with FIR No. 365/01 21 the bag of his employer. He had further deposed that he had tried to chase the persons who had stolen the bag but someone had caught hold of his hand and therefore he could not apprehend the persons who had stolen the bag of his employer and this witness had thereafter deposed that he had apprehended the person who had told him that his currency notes had fallen on the road and had handed him over to the police. However, in his crossexamination, PW1 had denied that the accused was the person who had told him about his currency notes which had allegedly fallen on the road.
23. As this contradiction came to the notice of the Ld. APP for State, he had sought permission from the court and had reexamined the witness and during re examination the witness had clarified the contradiction in his deposition and had said that the accused was not the person who had told him about his currency notes which had allegedly fallen on the road but instead the accused was the person who had caught hold of his hand while he was chasing the person who had stolen the bag of his employer and had run away with the same. Therefore, as the witness has himself clarified the contradiction appearing in his testimony during his reexamination he cannot be treated as a hostile witness and his testimony cannot be totally discarded. On the contrary, the witnesses has fully supported the case of prosecution and has also clarified the contradiction in his testimony by deposing that the accused was the persons who had caught hold of his hand at the time when he was chasing the person who had stolen the bag of his employer and had run away with the same. This witness FIR No. 365/01 22 has therefore fully supported the prosecution version of the case and has deposed that accused Dev Kishan was the person who had retrained him by holding his hand in order to facilitate the escape of his accomplice who had run away with the bag of his employer.
24. In the respect the Hon'ble Supreme Court of India in the case Syed Ibrahim Vs. State of AP (2006) 10 SCC 601 has held that doctrine of Falsus in Uno Falsus in obmnibus (False in one thing, false in everything) has no application in India and a witness who speaks untruth in some aspect cannot be branded as a liar because in India witnesses cannot help giving embrodiery to their story despite the fact they have no intention to speak untruth and it is the duty of the court to segregate truth from falsehood. Observations made by Hon'ble Supreme Court of India in para 10 of the judgment are noteworthy in this context which reads as under ``Stress was laid by the accusedappellants on the non acceptance of evidence tendered by PW1 to a large extent to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be note wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the FIR No. 365/01 23 question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence. (See Nisar Alli v. The State of Uttar Pradesh [AIR 1957 SC 366]. In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR 1956 SC 460]. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh [1972 (3) SCC 751] and Ugar Ahir and Ors. v. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh [AIR 1954 SC 15] and Balaka Singh and Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed by this Court in State of Rajasthan v. Smt Kalki and Anr. [1981 (2) SCC 752], normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc. [2002 (6) SCC 81] and in Sucha Singh v.State of Punjab [2003 (7) SCC 643]. It was further illuminated in the Zahira H. Sheikh v. State of Gujarat [2004 (4) SCC 158], Ram Udgar Singh v. State of Bihar [2004(10) SCC 443], Gorle S. Naidu v. State of Andhra Pradesh [2003 (12) SCC 449] and in Gubbala Venugopalswamy v. State of Andhra Pradesh [2004 (10) SCC 120].'' FIR No. 365/01 24 In the present case, in fact, the sole witness Ramesh Kumar has not made any false statement on any aspect or material fact related to the offence in question or the identity of the accused. He has not even given any embroidery to his story. He had merely got confused during his examination in chief and had wrongly deposed that the accused was the person who had told him about his currency which has allegedly fallen on the road and the witness had himself clarified his mistake and had categorically deposed that the accused was not the person who had told him about the fallen currency notes but was the person who had retained him to facilitate the escape of his accomplice who had run away with the bag of his employer.
25. In view of the foregoing discussion, I am of the considered opinion that none of the three arguments advanced by Ld. Counsel for accused are sustainable. In view of the fact that the accused was apprehended from the spot itself after the commission of the offence. Therefore, there was no requirement of getting conducted judicial TIP of the accused because the accused was arrested after he was duly identified by the main eye witness complainant Ramesh Kumar. Moreover, the complainant Ramesh Kumar had also fully supported the prosecution version of the case and had deposed that the accused Dev Kishan was the person who had caught hold of his hand and restrained him from chasing and apprehending the person who had stolen the bag of his employer. Hence, the prosecution has proved beyond reasonable doubt that accused was the person who was involved in incident by which FIR No. 365/01 25 the theft of one bag belonging to Sh. Daya Ram Agarwal was made by the accused and his unknown accomplices. The question that now arises for consideration, is that whether from the incident which now stands proved the ingredients of offence un/s 382 IPC are made out against the accused Dev Kishan or not. Section 382 IPC provides as under: ``382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft: Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear, or of hurt, or of restraint, ot any person, in order to the committing of such theft , or in order to the effecting of his escape after the committing of such theft, or in order ot the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.''
26. A base perusal of section 382 reveals that offence of theft when carried out with the preparation to cause death, hurt or restraint in order to carry out the offence or if a similar preparation to cause death, hurt or restraint is made in order to facilitate the escape of the offender after the offence of theft has been perpetrated an offence u/s 382 IPC is made out against any or all persons who do any act or omission for the purpose of commission of such an offence. In the present case the accused Dev Kishan has restrained the complainant Ramesh Kumar when the complainant was chasing person who had fled with the bag of Sh. Daya Ram Agarwal. Accused Dev Kishan has therefore restrained the complainant to facilitate the escape of his accomplice who had committed theft of the bag of Sh. Daya Ram Agarwal. The ingredients of offence u/s 382 IPC therefore stand duly proved against him.
FIR No. 365/0126 Accordingly, in view of the foregoing discussions the accused is held guilty for the offence punishable u/s 382/34 IPC.
Now to come up for arguments on sentence on 22.3.2011.
Announced in the open court (JASJEET KAUR) on this 31 st day of January, 2011 MMI/NEW DELHI FIR No. 365/01 27 In the court of Ms. Jasjeet Kuar, Metropolitan Magistrate, Patiala House Courts, New Delhi.
FIR No. 365/2001PS Connaught Place u/s 382/34 State Vs. Dev Kishan 22.3.2011 ORDER ON SENTENCE Present: Ld. APP for State.
Accused in person with Ld. Counsel Sh. O.N.S. Gaba.
Ld. Counsel for the accused has prayed that a lenient view be taken against the accused as he has been facing trial for the last 11 years and he is the sole bread earner of his family and his family members would also undergo hardship on account of his imprisonment. Besides, the Ld. Counsel for the accused has also argued that the accused has now rehabilitated himself as a Paan Seller must be given an opportunity to reform himself. Therefore, a lenient punishment be given to him.
On the other hand, it is argued by the Ld. Addl. PP for the State that the accused does not deserve any leniency as he has not only deprived the innocent persons of their right to peacefully possess and enjoy their property but has also committed an offence which can spread fear in the society and therefore, maximum punishment be awarded to the accused as per law and he does not deserve any sympathy. The act of sentencing is a very delicate process. On the one hand the interest of society has to be kept in mind by awarding deterrent punishment to convict but the same has to be also balanced with the FIR No. 365/01 28 welfare and future of the accused so as not to turn them into hardened criminal and lose them forever as a useful citizen of the society. The interest of the law demands that anyone who commits offence be punished since if such persons are not punished others will be encouraged to take law in their own hands and it will result into chaos and law less situation where rule of law will not exist.
Accordingly, keeping in view the facts and circumstances of case, the accused is sentenced to undergo Rigorous Imprisonment of one year and to pay fine of Rs. 1,000/ for offence u/s 382 IPC. File be consigned to Record Room.
At this stage, an application u/s 389 Cr.P.C. is moved for suspension of sentence and grant of bail. Heard. In view of submissions made by Ld. Counsel, applicant is admitted to bail on furnishing bail bond in the sum of Rs. 30,000/ and one surety in like amount. Bail Bond furnished and accepted till 22.4.2011. SHO to verify the same for 25.3.2011.
Announce in the open court (JASJEET KAUR) on 22.3.2011 MM/New Delhi FIR No. 365/01