Delhi District Court
State vs : Ateeq Ahmed on 17 March, 2012
IN THE COURT OF SH. SUDHANSHU KAUSHIK: METROPLITIAN
MAGISTRATE:02/SE/SAKET : NEW DELHI
State Vs : Ateeq Ahmed
FIR No : 230/06
U/s : 454/511 IPC
PS : OIA
Date of Institution: 24.05.2006
Date of Judgment reserved for: 02.03.2012
Date of Judgment: 17.03.2012
Brief Details of the Case
A. Sl. no. of the case 625/2/06
B. Offence complained of
or proved U/s 454/511 IPC
C. Date of Offence 29.03.2006
D. Name of the complainant Sh Rana
s/o Sh Johari
r/o Quarter no 61D, 3,
Railway Colony,
Tuglakabad, New Delhi
E. Name of the accused Ateek Ahmed
s/o Jali Ahmed
r/o Village Kashba,
Mandawar, Moh Plastoli, PS
Mindawar, Distt Bijnour, UP
F. Plea of the accused Pleaded not guilty.
G. Final order Convicted
H. Date of Order 17.03.2012
Judgment
The case of the prosecution is that on 29.03.2006, at 2.30 pm,
the accused Ateek Ahmed was caught red handed while he was
FIR No. 230/06 1/12
attempting to commit house breaking in order to commit theft at
premises number 61D/3, IIIrd floor, railway colony, TKD, New Delhi.
Brief Reasons for the Decision:
2. PW5 Rana (complainant) used to reside alongwith his family
at premises number 61D/3, IIIrd floor, railway colony, New Delhi. On
26.03.2006, at around 2.30 pm, he returned to his residence for taking lunch and saw that accused was trying to break open the locks of the main door of his house with the help of a screw driver and an iron rod. The complainant apprehended the accused and information was conveyed to the local police station. PW4 SI S.P.Tyagi and PW1 Ct Yad Ram, posted at police station Okhla Industrial Area (OIA), arrived at the spot and arrested the accused. The broken lock, screw driver as well as the iron rod were seized and the present FIR no 230/06 under section 454/511 IPC was registered at PSOIA.
3. The requisite documentation was done on the spot and the statement of witnesses were recorded. On completion of the investigation, chargesheet was put to the Court. The copies of the chargesheet were supplied to the accused and charge under Section 454 IPC read with Section 511 IPC was framed against him to which he pleaded not guilty and claimed trial.
4. In order to establish the charge, the prosecution examined four witnesses. The gist of their testimony is as under: FIR No. 230/06 2/12 PW1 Ct Yad Ram (Police official, who reached the spot alongwith the IO) has deposed that after reaching the spot, the complainant met him and handed over the accused as well as the implements of house breaking. He stated that the broken lock was also produced by the complainant and all the articles were seized vide seizure memo Ex PW1/B. Thereafter, these articles were kept in a pullanda which was sealed with the seal of 'SPT'. The arrest memo of the accused is Ex PW1/C. The witness has identified the accused as well as the case property which was produced in the court with intact seal. This witness has not been cross examined by the accused.
PW2 Ct Ramesh (Posted with DHG) has mentioned that on 26.03.2006, he handed over the DD number 13A to the IO.
PW3 HC Janak Raj (Duty Officer) has deposed about the registration of the FIR which is Ex PW3/A. PW4 SI S.P.Tyagi (Investigating Officer) has deposed about the investigation part. He mentioned that after reaching the spot, he prepared the rukka Ex PW4/A and sent Ct Yad Ram to the police station for registration of FIR. The seizure memo prepared by him is Ex PW1/B. He has also mentioned about the sealing part. He stated that the screw driver, broken lock and the iron rod were sealed by him in a pullanda with the seal of 'SPT'. He admitted in his cross examination that no public person was joined in the investigation.
PW5 Sh. Rana (Complainant) has given a detailed account of FIR No. 230/06 3/12 the entire incident. He mentioned that on 26.3.2006, when he returned back to his house, he saw that accused had already entered the house after breaking open the locks of the entrance door. He has deposed that he apprehended the accused and an iron rod which was bent on one side, a screw driver and broken lock was recovered from his possession. He stated that he handed over the accused as well as the recovered articles to the IO. His statement recorded by the IO is Ex.PW1/A. He mentioned in his cross examination that although, he was staying alongwith his family but at the time of incident, nobody was present at the house. He mentioned that his house is situated on the third floor and the inhabitants of the other floors gathered at the spot after the accused was apprehended by him. He admitted in his cross examination that the keys of the house were lying with him. He mentioned that the said keys were not seized by the police officials.
5. Statement of the accused was recorded under Section 313 Cr. PC. He denied his presence at the spot. He mentioned that he used to ply an auto Rickshaw and the complainant met him at the auto rickshaw stand of railway colony. He stated that complainant approached him for hiring his auto rickshaw for transporting around five quintals of iron rod from his residence at railway colony to Badarpur railway crossing. It is his version that complainant falsely implicated him in the present case because he refused to transport the iron rods. No defence witness been examined by the accused.
FIR No. 230/06 4/12
6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld APP has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the prosecution's case. He has argued that minor contradictions are bound to appear in any criminal matter and in the case at hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. On the other hand, Ld. Defence Counsel has assailed the prosecution's case. He has argued that there is no justification as to why independent witnesses were not joined in the investigation. He has argued that there are material contradictions and discrepancies in the version of witnesses. Ld. Counsel has contended that there are lacunas in the prosecution's story. He has contended that there is nothing on record to suggest as to why, in particular, the house of the complainant, which was situated on the third floor was targeted by the accused for committing house breaking. He has argued that the sole testimony of the complainant in the absence of any corroboration is not sufficient to prove the charge.
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on FIR No. 230/06 5/12 record.
10. Admittedly, PW5 Rana is the only eye witness of the incident and no public witness has been joined in the investigation. The question which is to be asked whether, the testimony of the eye witness should be discarded merely because of the said reason. The answer to my mind is negative. The record shows that complainant has categorically stated that when he returned to his house for taking lunch, he saw that accused had already entered his house after breaking open the locks of the main door. The implements used by the accused for breaking locks as well as the broken lock was recovered from his possession. The complainant has specifically mentioned that one small iron rod which was bent from one side, a screw driver and the broken lock was recovered from the accused. He has also mentioned about the arrival of the police officials at the spot. He stated that IO arrived at the spot and took him as well as the accused to the police station. He stated that all the documents were prepared at the spot itself.
11. The record shows that the testimony of the complainant about the aspect of house breaking and recovery of the implements used for the house breaking has remained unblemished. Ld. Defence counsel has cross examined the witness at length but his testimony has remained unshaken. Ld. Defence Counsel has vehemently argued that accused should be acquitted as no public witness has been joined in the investigation. The defence has heavily relied upon the said aspect. As FIR No. 230/06 6/12 observed earlier, no independent public witness has been joined in the investigation. Only police personnel are witnesses of recovery, however, the said fact itself cannot be the sole ground for discarding the testimony of the complainant. The complainant himself is a witness of recovery and no previous enmity between him and the accused has been alleged by the defence. His testimony cannot be discarded because no other public witness has been joined in the recovery.
12. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. However, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution.
13. PW5 Rana has mentioned that he apprehended the accused from his house. He stated that thereafter, somebody informed the local police and the police officials arrived at the spot. PW1 Ct Yaad Ram and FIR No. 230/06 7/12 PW4 SI S P Tyagi are the said police officials, who reached the spot after receiving information about the incident. On appreciation of the testimony of Sh Rana, it is evident that he was alone at the time when he apprehended the accused from his house and the inhabitants of the other floors gathered at the spot only after he apprehended the accused. Thus, in so far as, the aspect of the house breaking is concerned, the complainant himself is the only witness as the other inhabitants arrived later on. Sh Rana has stated that other persons from the locality gathered at the spot but the IO did not make any inquiry from them. He mentioned that he was possessing the keys of his house but the same were not seized by the police officials. Although, there are lapses on the part of the IO as he has failed to join any independent witness in the investigation and has also not seized the keys of the house but the said lapses could not be considered fatal. The accused do not stand to gain any advantage because of the infirmities in the investigation.
14. Ld. Defence Counsel has argued that the sole testimony of Rana cannot form the basis of conviction. I do not find any force in the said argument. There is no rule of evidence that the sole testimony of a witness can not be relied on. The unimpeached testimony of the complainant Rana (PW5) is more than sufficient to bring home the charges against the accused. He has specifically deposed about the aspect of house breaking and the recovery of the implements of house breaking from the possession of the accused. His testimony has remained FIR No. 230/06 8/12 unshaken during cross examination. It is the quality of the evidence and not the quantity which is to be seen. The Hon'ble Supreme Court in judgement titled as Ramesh Krishna Madhusudan Nayar vs. State of Maharashtra reported in 2008 Crl. LJ 1023 upheld a conviction under Section 302 IPC based on the sole testimony of the a witness. The Court held that "on the basis of a solitary evidence conviction can be maintained. It made a reference to Section 134 and held that no particular number of witnesses are required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained." Thus, the unshaken testimony of Rana (PW5) is more than sufficient to establish the charge against the accused. He has mentioned that after reaching his house, he saw that accused had already entered the house after breaking open the locks of the main door. The accused was apprehended from the spot itself and he has been identified by him in the court.
15. Ld. Defence counsel has pointed out that there are some contradictions in the testimony of Rana (PW5). He has pointed out that Rana has stated that only one police official arrived at the spot and took him as well as the accused to the police station, while the police FIR No. 230/06 9/12 witnesses have mentioned that two police officials (PW1 and PW4) reached the spot after receiving the information. He has argued that his testimony should be discarded because of the said contradictions. I fail to appreciate the said argument. The incident had took place on 26.03.2006 and the witness has stepped into the witness box on 18.12.2011. There is an intervening gap of around five years. It is not expected from a man of average memory that he would recollect the exact details of the accident even after a gap of 5 years. The purpose of examination is not to test the memory of a witness. Minor contradictions are bound to occur on account of the natural lapse of memory. It has been held in the judgement titled as State of Rajasthan v. Smt. Kalki and Anr. AIR 1981 SC 1390 that 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. Clearly, due to lapse of time between the accident and the date of the evidence/statement before the Court, some minor/normal discrepancies are bound to creep in the testimony of witnesses. Thus, the testimony of eye witness (Rana) cannot be FIR No. 230/06 10/12 discarded merely because there are some minor discrepancies in his statement.
16. The record shows that accused has given an evasive reply to the questions which were put to him during his examination under section 313 Cr.PC. He has come up with an altogether different version. He mentioned that complainant was under the influence of alcohol and he approached him for hiring his auto Rickshaw stating that certain iron rods were to be transported from his house to Badarpur Railway crossing. He mentioned that when he refused to transport the iron rods, the complainant started beating him and he became unconscious. He stated that when he regained his consciousness, he found himself present at the police station. The said version of the accused is in sharp contrast with his earlier line of defence. During the cross examination of PW5 Rana, the accused has suggested to him that he hired his services for reaching his house. He has also suggested that after reaching the house, the complainant refused to pay him the auto rickshaw fare of Rs. 150/ and falsely implicated him in the present case. In the statement recorded under section 313 Cr.PC, the accused has mentioned that he was apprehended from the auto rickshaw stand while in his defence suggested during the cross examination of PW5, he admitted his presence at the house of the complainant. The said contradiction bring to light the fact that the defence raised by him is an after thought and it is unbelievable. The frequent shifting of stand by the accused clearly FIR No. 230/06 11/12 suggest that he is not telling the truth.
17. In view of the above said discussion, I have reached a conclusion that prosecution has established the charges beyond reasonable doubt. It is proved that on 26.03.2006, during the absence of the complainant, the accused attempted to commit house breaking at the house of the complainant. The charge under Section 454 read with Section 511 IPC have been established. The accused Ateek stands convicted for the offence under Section 454 read with section 511 IPC.
Announced in open Court (Sudhanshu Kaushik)
on this day of 17.03.2012 Metropolitan Magistrate
Saket Courts, Delhi
FIR No. 230/06 12/12
FIR No. 230/06 13/12
FIR No. 230/06 14/12