Delhi District Court
In Re: State vs Rohit @ Seenu on 10 February, 2016
IN THE COURT OF GAURAV RAO: ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, SOUTH DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS ROHIT @ SEENU
F.I.R. No: 861/15
U/s 356/379 IPC
P.S. Saket
Date of Institution of Case : 18.11.2015
Judgment Reserved for : 10.02.2016
Date of Judgment : 10.02.2016
JUDGMENT:
(a) The serial no. of the case : 180/2/15
(b) The date of commission of offence : 22.07.2015
(c) The name of complainant : Sh. Ashish Chaudhary s/o
Kanta Chaudhary, R/o
Ganga H5, IGNOU
Housing Complex,
Maidangarhi, New Delhi.
(d) The name, parentage, of accused : Rohit @ Seenu s/o Gopal,
R/o B158, JJ Camp Tigri,
New Delhi
FIR No. 861/15 State Vs. Rohit @ Seenu 1/27
Permanent Address : As above.
(e) The offence complained of : U/s 356/379 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 10.02.2016
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 22.07.2015 at about 08.15 p.m., Saket Crossing MB Road, Saket, New Delhi within jurisdiction of PS Saket, accused Rohit @ Seenu assaulted/ used criminal force against complainant Sh. Ashish Chaudhary for committing theft of his mobile phone make Sony Xperia while snatching the same from his hand without his consent and handed over it to his coaccused (not arrested) who fled from the spot along with stolen phone and thus thereby accused committed offence punishable U/s 356/379 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide orders dated 15.01.2016 Charge U/s 356/379 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
FIR No. 861/15 State Vs. Rohit @ Seenu 2/27
3. In order to prove the charges against the accused, prosecution examined four witnesses, thereafter the PE in the matter was closed vide orders dated 09.02.2016 and the statement of accused U/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case.
Brief scrutiny of the evidence recorded in the matter is as under.
4. PW01 Ashish Choudhary deposed that on 22.07.2015 he was coming back from his office and at around 8/8.15 pm, he was traveling in Metro Feeder Bus and when the bus was about to reach at Saket crossing bus stand he was standing near the gate in the bus, the accused who was also traveling in the bus alongwith his friend snatched his mobile phone make SONY XperiaM and tried to run away from there. He deposed that the accused handed over his stolen phone to his friend/accomplice and he manged to run away, however he manged to apprehend the accused. He deposed that thereafter he boarded the bus alongwith the accused and thereafter, passengers inside the bus assaulted the accused with slap blows. He deposed that thereafter he got alighted the accused at Saket Crossing bus stand. He deposed that his colleague namely Raja was also accompanying him at that time. He deposed that he called to FIR No. 861/15 State Vs. Rohit @ Seenu 3/27 police at 100 number with the mobile phone of his colleague. He deposed that he also called his mother from the said mobile phone. He deposed that PCR van came there and he narrated the above said incident to the police officials and they recorded his statement which is Ex. PW 1/A. He deposed that thereafter, police official got the FIR registered and after registration of FIR, IO prepared the site plan at his instance. He deposed that IO arrested and carried out personal search of accused vide memos Ex. PW 1/B and Ex. PW 1/C. He deposed that on the next day he went to PS and collected copy of FIR from IO.
5. During his cross examination he stated that the police official had never demanded the mobile bill from him. He stated that his friend Raja had accompanied him that day and they had taken the metrofeeder from Sangam Vihar. He stated that the bus was crowded, but it was not highly crowded. He stated that they were sitting on the side in the bus. He stated that accused was not sitting in the bus, but was standing near the gate alongwith his friend. He stated that the gate of the bus are manual and not automated. He stated that there is only one gate in the metrofeeder bus adjacent to the driver seat. He stated that his phone was snatched by the accused when he got up from his seat and reached near the gate to get down from the bus as his stand was approaching. He stated that his friend remain seated as he had to get down on the next stand. He stated that he does not recall how many passengers had FIR No. 861/15 State Vs. Rohit @ Seenu 4/27 come to the gate to get down, but the accused alongwith his friend came and stood behind him. He stated that the accused alongwith his friend got down from the bus after snatching his phone and he also got down and chased them. He stated that the bus had stopped at that time because there was traffic on the road. He stated that no one else had got down from the bus at that time. He stated that the bus stand was at a distance of 2025 yds from the spot. He stated that no one else got down to chase the accused persons. He stated that after apprehending the accused he again brought him back to the bus. He stated that the accused ran towards the direction in which bus was moving. He stated that he chased him by running around 2025 yds. He stated that till the time he apprehended the accused and brought him back, the bus remained at the spot itself due to traffic. He stated that after getting in the bus he called the police from his friend's phone and during this time, the bus started to move. He stated that he had got back in the bus so as to inform his friend about the incident and after making the call from his mobile he alongwith the accused and his friend and one more passenger got down from the bus. He stated that by the time police reached there, the bus had already gone. He stated that he had not told the registration number of the bus to the IO. He stated that there was no need for him to tell the driver or the conductor regarding the snatching of his phone as everybody realized what had happened. He stated that police reached the spot within 1015 minutes. He stated that only his statement was recorded by police.
FIR No. 861/15 State Vs. Rohit @ Seenu 5/27 He stated that police had not recorded the statement of anyone else. He stated that his friend was present with him at the time when his statement was recorded. He stated that public persons were coming and going, but nobody had gathered or stopped at the spot. He denied the suggestion that the accused has been falsely implicated in this case or that the accused did not snatch his mobile phone from him or that he had not handed over the same to his friend. He denied the suggestion that that all documents were prepared at PS or that he was deposing falsely.
6. PW2 Sh. Prakash Dwivedi deposed that on 22.07.2015 at around 07:008:00 PM he was going towards Mehrauli side from Khanpur on his motorcycle and when he reached at IGNOU mod he heard noise of "chor chor pakdo" "chor pakdo". He deposed that he saw that 2 or 3 persons were running towards Mehrauli side and some persons were chasing them. He deposed that he also chased 2 or 3 persons and apprehended one of them. He deposed that remaining persons fled away from there. Thereafter he pointed out towards accused Rohit and deposed that he was apprehended by him. He deposed that public persons assaulted the accused. He deposed that Ashish / complainant was also present there. He deposed that he called to the police at 100 number. He deposed that police officials reached at IGNOU mod. He deposed that police officials took the accused to the PS. He deposed that complainant also went to FIR No. 861/15 State Vs. Rohit @ Seenu 6/27 the PS alongwith police official. He deposed that he also went to the PS on his motorcycle. He deposed that IO recorded the statement of complainant and got the FIR registered. He deposed that after registration of the FIR, IO arrested and carried out personal search of accused vide memos Ex. PW1/B and PW1/C. He deposed that he narrated the above said facts to the IO and he recorded his statement.
7. During his cross examination he stated that complainant Ashish is his friend. He stated that he is known to him since last 2 years. He stated that complainant had not called him on his mobile phone. He stated that he heard the noise of complainant Ashish as well as other public persons. He stated that he saw that Ashish was chasing 23 persons and he was shouting "Chor Chor Pakdo". He stated that he parked his motorcycle and thereafter he chased 23 persons. He stated that he chased them upto half km. He stated that public persons apprehended the accused at IGNOU mod and he also reached there. He stated that police reached at the spot where the accused was arrested within 15 minutes. He stated that police inquired the matter from them. He stated that police noted down the relevant facts and thereafter took the accused to the PS. He stated that he went to the PS on his private motorcycle. He denied the suggestion that he was deposing falsely at the instance of complainant who is his friend. He denied the suggestion that accused did not commit theft of his mobile phone. He denied the suggestion that accused has been falsely implicated.
FIR No. 861/15 State Vs. Rohit @ Seenu 7/27
8. PW3 SI Durgadas deposed that on 22.07.2015 he was posted as SI at PS Saket and on that day at around 08:21 PM he received a DD No. 46A regarding the snatching of a phone and one person caught at Saket Traffic Court, MB road, Saket. He deposed that thereafter he alongwith Ct. Narsingh went to the spot i.e. above mentioned place where they met complainant Ashish Chaudhary. He deposed that complainant produced the accused Rohit @ Seenu before him and narrated the manner of the incident. He deposed that he recorded his statement which is Ex. PW1/A. He deposed that he made endorsement on the same which is Ex. PW3/A and the rukka was handed over to Ct. Narsing for registration of FIR and he went to the PS and got the FIR registered. He deposed that in the meantime he met another eyewitness namely Prakash Chand Diwedi who narrated the manner of incident to him. He deposed that after registration of FIR Ct. Narsingh returned to the spot alongwith original rukka and copy of FIR and the same were handed over to him. He deposed that he prepared the site plan at the instance of complainant which is Ex.PW3/B. He deposed that thereafter he interrogated the accused. He deposed that he arrested the accused and carried out his personal search vide memos Ex.PW1/B and PW1/C. He deposed that he recorded his disclosure statement which is Ex.PW3/C. He deposed that he recorded the supplementary statement of complainant. He deposed that he also recorded the statement of eye witness FIR No. 861/15 State Vs. Rohit @ Seenu 8/27 Parkash Chand Diwedi. He deposed that thereafter they left the spot. He deposed that he alongwith Ct. Narsingh and accused Rohit @ Seenu searched coaccused who fled away from the spot, but no clue was found. He deposed that after medical examination of the accused, they returned to the PS and the accused was sent to the lockup. He deposed that he recorded the statement of witnesses. He deposed that on next day he obtained one day PC remand of the accused and during the course of PC remand they searched the coaccused, but no clue was found. He deposed that he moved an application for search of IMEI Number of mobile phone of complainant make Sony Xperia and he obtained the call details of mobile number 8800324334 from 15.07.2015 to 24.07.2015. The same are mark X1 (colly). He deposed that said mobile phone is yet to be recovered. He deposed that he prepared the chargesheet and filed in the court through concerned SHO.
9. During his cross examination he stated that he did not interrogate Kanta Chaudhary (subscriber of mobile no. 8800324334) and she is not cited as a prosecution witness. He stated that he did not collect certificate u/s 65B Evidence Act from Bharti Airtel Ltd. pertaining to the call details of the said mobile phone. He stated that no person was cited as prosecution witness from Bharti Airtel Ltd. who provided the call details of the said mobile phone. He stated that he reached at the spot at about 08:50 PM. He stated that when he reached FIR No. 861/15 State Vs. Rohit @ Seenu 9/27 at the spot he met there complainant and the accused only. He stated that PW02 Parkash Dwivedi met him at the spot after recording the statement of complainant. He stated that they remained at the spot upto 11:15 PM. He stated that statement of PW02 Parkash Dwivedi u/s 161 CrPC was recorded at the spot after registration of FIR. He stated that he had inquired regarding the feeder bus, but could not find any clue. He stated that he had not mentioned in the chargesheet regarding the inquiry of feeder bus, but the same was mentioned in case diary. He stated that complainant and witness Parkash Dwivedi left the spot after recording their statement. He stated that no shopkeeper was available at the spot due to night. He stated that during investigation he could not reveal that the witness Parkash Dwivedi was friend of complainant. He denied the suggestion that Parkash Dwivedi is a planted witness being friend of the complainant. He denied the suggestion that accused has been falsely implicated in this case. He denied the suggestion that that he had not carried out the investigation properly. He denied the suggestion that he had not visited the place of incident. He denied the suggestion that he was deposing falsely.
10. PW4 Constable Nar Singh deposed that on 22.07.2015 he was posted as constable at PS Saket and on that day he was on emergency duty from 08:00 PM to 08:00 AM and at around 08:21 PM, IO SI Durgadas received a DD No.46A regarding the snatching of a mobile phone and one person was apprehended at bus stand, Saket Crossing, MB road, New Delhi. He deposed FIR No. 861/15 State Vs. Rohit @ Seenu 10/27 that thereafter he alongwith IO went to the spot i.e. above mentioned place where they met complainant Ashish Chaudhary. He deposed that complainant produced accused Rohit @ Seenu before IO. He narrated the manner of the incident and IO recorded his statement which is Ex. PW1/A. He deposed that IO made endorsement on the same which is Ex. PW3/A. He deposed that the rukka was handed over to him for registration of FIR and he went to the PS and got the FIR registered. He deposed that after registration of FIR he returned to the spot alongwith original rukka and copy of FIR and the same were handed over to IO/ SI Durgadas. He deposed that IO prepared the site plan at the instance of complainant which is Ex.PW3/B. He deposed that thereafter, IO interrogated the accused. He deposed that IO arrested and carried out personal search of accused vide memos Ex.PW1/B and PW1/C. He deposed that IO recorded his disclosure statement Ex.PW3/C. He deposed that IO recorded the supplementary statement of complainant. He deposed that IO also recorded the statement of eye witness Parkash Chand. He deposed that thereafter, they left the spot. He deposed that he alongwith IO and the accused Rohit @ Seenu searched coaccused who fled away from the spot, but no clue was found. He deposed that after medical examination of the accused, they returned to the PS and the accused was sent to the lockup. He deposed that IO recorded his statement.
11. During his cross examination he stated that he does not remember FIR No. 861/15 State Vs. Rohit @ Seenu 11/27 the exact time when they reached at the spot. He stated that when he reached the spot, except complainant and accused, another public person was also present there. He stated that he remained at the spot for 2025 minutes prior to leaving the spot for registration of FIR. He stated that statement of complainant was recorded at the spot. He stated that one other public person's statement was also recorded by IO after recording the statement of complainant. He stated that after recording the statement of both persons he left the spot for registration of FIR. He denied the suggestion that he had not visited the place of incident or that all documents prepared at the PS. He denied the suggestion that he was deposing falsely at the instance of IO.
12. This so far is the prosecution evidence in the matter.
13. I have heard the arguments advanced at bar by the Ld. LAC Sh. Kishore Kumar as also learned APP, carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case. I have also gone through the provisions of section 378 and 379 IPC as well as section 356 r/w section 349, 350 and 351 IPC and particularly the definition of "force" i.e. "a person is said to use force if he causes motion, change of motion or cessation of motion to that other, or if he causes to any substance such motion............ or with anything which the other is wearing or FIR No. 861/15 State Vs. Rohit @ Seenu 12/27 carrying or with anything so situated that such contact affects others sense of feelings........"
14. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
15. It stands proved from the deposition of PW01 i.e. complainant Sh. Ashish Choudhary, whose testimony was duly corroborated by other prosecution witnesses including public witness namely Prakash Dwivedi, that accused Rohit @ Seenu indeed snatched his mobile phone on 22.07.2015 and he was caught red handed at the spot by the complainant himself.
16. PW1 Sh. Ashish Choudhary (complainant) categorically proved that on 22.07.2015 while he traveling in Metro Feeder Bus and standing near the gate accused who was also traveling in the bus along with his accomplice snatched his mobile phone and tried to run away from there. He further proved that accused handed over his stolen phone to his friend and he managed to run away but he apprehended the accused. He proved that he again boarded the bus along with accused and passengers inside the bus gave beatings to the accused and thereafter he got alighted the accused at Saket Crossing bus stand. He FIR No. 861/15 State Vs. Rohit @ Seenu 13/27 proved that he called at 100 number and PCR van came there and police officials recorded his statement Ex. PW1/A. He further proved the preparation of site plan at his instance as well as the arrest of accused vide documents Ex. PW1/B and C.
17. Hence the complainant duly proved the incident dated 22.07.2015 as well as established the identity of the accused as the perpetrator of the crime.
18. His deposition was duly corroborated/supported by PW2 Parkash Dwivedi who proved that on the day of incident while he was going towards Mehrauli on his motorcycle and had reached near IGNOU mod he heard the noise of "Chor Chor Pakdo" and saw 23 persons were chasing some other persons. He further proved that he along with public persons managed to chase and apprehend accused Rohit who was later on assulated by public persons. He proved that remaining persons fled away from there. He further proved that the complainant who was present there called the police who came to the spot, recorded the statement of complainant, got the FIR registered and arrested the accused.
19. Further credence to the prosecution story was lend by SI Durgadas and Constable Nar Singh who were examined as PW3 and PW4 respectively.
FIR No. 861/15 State Vs. Rohit @ Seenu 14/27 They supported the prosecution story, while proving that on the day of incident on receipt of DD no. 46A they reached the spot and met the complainant who had apprehended the accused and narrated the entire incident to them. They proved the arrest of the accused, preparation of the site plan, rukka etc. as was proved by the complainant as well as disclosure statement of the accused as was recorded by the IO vide Ex. PW3/B and Ex. PW3/C.
20. FIR which was registered on the complaint of Ashish Choudhary was duly proved on record as Ex. A1.
21. During the course of arguments, Ld. Defence Counsel Sh. Kishore Kumar vehemently argued that the prosecution story cannot be relied upon as apart from the complainant and his friend who is an interested/planted witness no other public witness was joined during the entire investigation. It was argued that even the bus conductor/driver or its passengers, Raja i.e. complainant's friend and his mother Kanta Choudhary were not joined in the investigation which itself creates doubt upon the prosecution story. It was also argued that even the bus ticket or the mobile bill was not produced during the trial by the prosecution which creates further doubt upon the entire story/claim of the complainant. Lastly, it was argued that the very fact that no phone was recovered and the alleged co accused never arrested itself throws grave suspicion upon the prosecution case.
FIR No. 861/15 State Vs. Rohit @ Seenu 15/27
22. However, I do not agree with the Ld. Defence Counsel. I have no reasons to disbelieve the prosecution witnesses. I find no reasons why the complainant or for that matter eye witness Parkash Dwivedi and the police witnesses would falsely implicate the accused. No motive has been assigned/proved by the Ld. Defence counsel for false implication of accused. There is nothing on record to suggest that the complainant, the investigating officer or the recovery witnesses were inimical to the accused. In fact, there is nothing on record to suggest that the accused was known to either of them prior to the incident. Even the cross examination by the Ld. Defence counsel failed to impeach the credit of the prosecution witnesses.
23. The law is well settled that conviction can be based upon the sole testimony of the complainant/aggrieved witness if it inspires confidence. There is no rule of law that independent corroboration is required in all cases/circumstances. Reliance may be placed upon the law laid down in Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148 and State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531, Appabhai v. State of Gujarat AIR 1988 SC 696 and State of U.P. v. Anil Singh, AIR 1988 SC 1998.
FIR No. 861/15 State Vs. Rohit @ Seenu 16/27
24. Nonetheless in the case at hand the testimony of complainant was duly corroborated by eye witness Parkash Dwivedi. Though Ld. defence Counsel argued that he was an interested/planted witness being the friend of complainant and therefore no reliance can be placed on his testimony however I do not agree with the said contentions of Ld. Defence counsel.
25. The mere fact that Parkash Dwivedi is friend of the complainant this relationship by itself is not sufficient to discredit the testimony of the witness as his presence at the spot was well explained by him and stands proved. It is no longer resintegra that conviction can be based upon the sole testimony of an eye witness if his presence at the spot is natural and his testimony inspires confidence. Reliance can be placed upon the law laid down in "State of UP v. Ballabh Dass (SC) 1985 (2) R.C.R. (Criminal) 287, Badri v. State of UP., (SC) 1975 A.I.R (SC) 1985, Bur Singh v. State of Punjab, (SC) 2008 (4) R.C.R. (Criminal) 834, State of UP. V. Vinod Kumar (Dead) and Udai Bhan Singh, (SC) 1992 (3) R.C.R (Criminal) 689. In case titled as State of UP v. Samman Dass (SC) 1972 A.I.R. (SC) 677, the Hon'ble Apex Court observed that relationship is not a ground to discredit the testimony of a prosecution witness. A witness who is present at the time and place is natural cannot be said to be interested. There is no legal bar in basing conviction on the sole testimony of a related witness so long as the testimony of such witness is credible and does not FIR No. 861/15 State Vs. Rohit @ Seenu 17/27 suffer from any material contradictions (Duli Chand v. State (Delhi) (DB) 1998 Cri.LJ 988, Om Prakash v. State, (Delhi) (DB) 1991 (1) R.C.R. (Criminal) 98 and Balwan Singh v. State, (Delhi) (DB) 1990 (1) R.C.R. (Criminal) 593.
26. The law is well settled that relationship is not a factor to affect credibility of a witness. (Gali Venkataiah v. State of Andhra Pradesh, (SC) 2007(6) R.A.J. 279 and Hardeep Singh v. State of Haryana , (SC) 2008(4) R.C.R.(Criminal) 125). There is no proposition in law that relatives are to be treated as untruthful witnesses ( Shyam v. State of M.P., (SC) 2007(2) R.C.R. (Criminal) 61). Interestedness is not a ground for rejecting his witness. (Paresh Kalyandas Bhavsar v. Sadiq Yakubbhai Jamadar, (SC) 1993 A.I.R. (SC) 1544, State of Haryana v. Tek Singh, (S.C.) 1999(2) R.C.R.(Criminal) 685, State of U.P. v. Ballabh Das, (SC) 1985(2) R.C.R.(Criminal) 287). If there is no reason to disbelieve such a witness his evidence cannot be rejected on mere fact that witness is an interested witness. ( State of Maharashtra v. Tulshiram Bhanudas Kamble, (SC) 2007(4) R.A.J. 623, State of U.P. v. Vinod Kumar (Dead) and Udai Bhan Singh, (SC) 1992(3) R.C.R.(Criminal) 689, Harijana Narayana v. State of A.P., (SC) 2004(1) Cri.C.C. 370).
27. In the case at hand presence of Parkash Dwivedi stands duly proved in view of the deposition of PW2, PW3 and PW4. On the other hand the FIR No. 861/15 State Vs. Rohit @ Seenu 18/27 defence could not prove that he was not present at the spot or that he was present somewhere else at the time of incident.
28. As far as the testimony of the police witnesses is concerned there is no rule of law that police official/official witnesses ought not to be believed/relied upon. Police official/official witnesses do not suffer from any disability to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. They cannot be presumed to be less or more reliable then any other normal public witness. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. Reliance may be placed upon Izzazul V. State (Delhi) 2007 (4) RCR Criminal 315, Kala Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 1948 and J awahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336.
29. As far as the non joining of independent public witnesses/the bus passengers or its conductor or driver or the friend of the complainant namely Raja who was traveling with him in the bus is concerned suffice would be to say it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and FIR No. 861/15 State Vs. Rohit @ Seenu 19/27 others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. Civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC
696).
30. There is no requirement of law that everyone who has witnessed the occurrence, whatever there number be, must be examined as a witness. (Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Criminal 701). In Jawa har v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal in vestigation and (2) Normally, nobody from public is prepared to suffer any incon venience for the sake of society.
31. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a FIR No. 861/15 State Vs. Rohit @ Seenu 20/27 case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
32. In the present case, as discussed above there is nothing on record to suggest untrustworthiness of the witnesses including police officials. If the defence wants this court to believe that the accused has been implicated falsely, the least which was expected from the defence was to at least come out as to what could have been the motive for the police for falsely implicating the accused. But no such reason is even mentioned/explained nor was suggested to the witnesses during their cross examination. The defence cannot expect this Court to believe its version by simple bare allegation that the accused is falsely implicated. At least some reason should have been put forth by the defence to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out/ disbelieve the testimony of witnesses, more so when none of the said witnesses were known to the accused previously and there does not appear any reason or motive for false implication of the accused by the complainant. The incident was reported immediately and there was no unreasonable delay in reporting of the incident, lodging of FIR and arrest of accused. Accused had not alleged any enmity with police officials also and there is no material to suspect false implication of the accused by the police. In the case at hand the complainant had categorically stated that as his phone had been snatched by the accused and handed over to FIR No. 861/15 State Vs. Rohit @ Seenu 21/27 his accomplice who had fled away he made a call through his friend/ colleague Raja's mobile. If the defence wanted to prove that the complainant was deposing falsely nothing stopped the defence from calling Raja during defence evidence so as to discredit the claims of the complainant or to prove that he was lying.
33. At this stage, it will be pertinent to highlight answers no. 1 and 4 given by the accused during his examination under Section 313 Cr.P.C. When the entire incriminating material as appearing against the accused was put to him the accused replied/gave his answer as under: "Ans.1 On the day of incident, I was present at the spot as I had come to Saket as my father works in G block. While I was going back on the main road near the spot to catch a bus I saw that complainant and 34 persons chasing some other boys. As I was there, they suspicion apprehended me and asked me as to what I was doing there. They thought that I was with the boy who had stolen/snatched his phone. I did not commit theft of the phone. He wrongly identified and apprehended me."
"Ans. 4 He is deposing falsely. I was apprehended by the complainant and other public persons on suspicion only."
34. The above statement which is admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. and the law laid down in Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith FIR No. 861/15 State Vs. Rohit @ Seenu 22/27 kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315, proves the presence of the accused at the date, time and spot of incident. It also proves that he was arrested by the police at the instance of the complainant. However, his plea of having been falsely implicated does not inspire confidence. Reason is as already discussed above, I find no reasons why the complainant or the police officials would falsely implicate the accused.
35. It was also one of the argument of Ld. Defence Counsel/LAC that the IO even did not collect the ticket to corroborate the claims of the complainant that he was traveling in the Metro Feeder bus when the accused allegedly committed theft of his mobile phone which further creates doubt upon the prosecution story and itself proves that the entire story is concocted one. It was also argued that even the mobile phone bill was not placed on record and as per the statement of the IO he had put the mobile phone on search/ surveillance through its IMEI number and as per his report Mark X1 (colly) the phone belongs to one Kanta Choudhary and not the complainant. However I find no merit in the above submissions of the Ld. Defence Counsel. No doubt, IO did not collect the ticket from the complainant however non seizure of the ticket does not effect the FIR No. 861/15 State Vs. Rohit @ Seenu 23/27 prosecution case in any manner. It is a case of theft and I fail to understand what purpose would have been served by seizing the bus ticket. Furthermore the presence of the complainant at the spot stands unambiguously proved/established in view of his testimony and that of the police officials apart from the statement made by the accused during his examination u/s 313 Cr.P.C. Moreover just because the IO carried on a negligent investigation or his investigation lacked professionalism it cannot be presumed that prosecution case was false or the complainant was lying. The law is well settled that an accused should not be allowed to go scott free or the complainant be disbelieved for defective investigation (Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717). Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies. (Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82). Mere faulty investigation cannot be made basis of acquitting the accused when sufficient evidence is available to nail him (Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal) 231). In Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660 , the Hon'ble Apex Court held that accused should not be acquitted solely on account of the defect in investigation. To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective.
FIR No. 861/15 State Vs. Rohit @ Seenu 24/27
36. As far as the bill of the mobile phone being not placed on record is concerned it is to be seen that firstly, non seizure of the mobile phone bill or its not being filed with charge sheet does not effect the prosecution story in any manner as the incident stands duly proved in view of the testimony of com plainant and the eye witness. Secondly, the complainant had categorically stat ed during his examination in chief that he can produce the bill if required however for reasons best known to the defence, defence did not ask for the bill to be pro duced. Hence it is not now open for the defence to argue that the bill was not produced or placed on record. Thirdly, as far as report Mark X1 is concerned it is apparent that the Sim/connection number is in the name of Kanta Choudhary but that by itself does not effect the prosecution story in any manner. Kanta Choud hary is the mother of the complainant and therefore there is nothing wrong or ille gal in the Sim being used by her son. As far as her non joining is concerned she is not the eye witness of the incident and rightly not cited as a witness by the prosecution. Still if the defence wanted to dislodge the prosecution case it was open for the defence to call her during the DE which the defence opted not to. Hence the defence cannot now agitate that she was not examined or that the connection is not in the name of complainant which otherwise is not the require ment for the present trial.
FIR No. 861/15 State Vs. Rohit @ Seenu 25/27
37. As far as the non recovery of mobile phone is concerned same is insignificant/irrelevant. For proving the offence u/s 379 IPC what is essential is/the prosecution is duty bound to prove that a movable property was removed/taken out from the possession of a person by another person without his consent. The moment the property is removed from the possession of its pos sessor without his consent the offence is complete. Nothing more is required. In the case at hand the offence of theft was committed by two persons one is ac cused Rohit and the other is his accomplice who managed to flee away from the spot after accused Rohit removed the phone and handed over the same to him. The complainant categorically proved that it was Rohit who had snatched his phone and handed over the same to his accomplice who managed to flee away. The moment the phone was removed/snatched from the complainant by accused Rohit the offence of theft was complete. The defence argument that no recovery was effected is meritless as it is settled position of law that for proving theft re covery of the case property is not sine qua non. Even in the absence of recovery the ingredients of theft are proved in the present case. The chain of events is complete. Moreover once one coaccused is arrested and the other accused knows about it, he makes best of his efforts to avoid falling into hands of police and also to destroy the case property/stolen property. In this case the com plainant categorically stated that there was one more accomplice of the accused FIR No. 861/15 State Vs. Rohit @ Seenu 26/27 to whom the phone was handed over after theft however he had managed to es cape.
38. Accordingly, in view of my above discussion, accused is held guilty under section 356 and 379 IPC.
39. I order accordingly.
40. Copy of the judgment be given to the accused free of cost.
41. Let he be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao) Court on 10.02.2016 ACMM (South)/Saket Courts/New Delhi. FIR No. 861/15 State Vs. Rohit @ Seenu 27/27