Delhi District Court
State vs . Akshay on 26 March, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN MAGISTRATE-05,
SHAHDARA, KARKARDOOMA COURTS, DELHI
FIR No. 169/16
PS - Jagatpuri
U/s 392/411 IPC
State Vs. Akshay
JUDGMENT
A. SL. NO. OF THE CASE : 87738/16
B. DATE OF INSTITUTION : 13.07.2016
C. DATE OF OFFENCE : 07.06.2016
D. NAME OF THE : Ms. Radhika
COMPLAINANT D/o Sh. Vinod Kumar
E. NAME OF THE ACCUSED : Akshay
S/o Sh. Naresh
F. OFFENCE : U/s 392/411 IPC
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Conviction u/s 392/411 IPC
I. DATE OF FINAL ORDER : 26.03.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused is produced before the court to stand trial for the offence punishable u/s 392/411 IPC.
FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 1 of 26
2. In brief, facts of the case of prosecution are that upon receiving a DD no. 23A dt. 07.06.2016, IO SI Om Prakash alongwith Ct. Prem reached at Road no. 57, Najad Marble Market and there some public persons were gathered and Ct. Yograj produced the accused. His name was disclosed as Akshay after interrogation and he was handed over to SI Om Prakash and it was stated that this person was running after snatching the mobile phone of one lady complainant and Ct. Yograj apprehended him with the help of public persons.
Complainant Ms. Radhika was also present there at the spot and her statement was recorded by the IO wherein she inter alia stated that she works at Kidzee School, Mausam Vihar, and on 07.06.2016 at around 03.45 pm when she was standing at bus stop near Jagatpuri Marble Market, suddenly one boy came there and snatched her mobile phone of make Karbonn Company. She stated that when she tried to catch hold of him then he pushed her and she fell down on the road. She further stated that thereafter she raised alarm and some persons who were present at bus stand chased the accused and while the accused was running away, police officials were also coming from the side of Marble Market and on seeing the public persons chasing the accused, police official apprehended the accused who was holding the snatched mobile phone in his right hand and she took the same from his hand and called at 100 number and other police officials came at the spot.
Upon the said complaint, IO got the FIR registered u/s 392/411 IPC. After registration of FIR, accused persons were interrogated by the IO. He thereafter seized the mobile phone i.e. the case property, prepared the site plan, arrested the accused person and he recorded the statement of witnesses. Upon completion of investigation, charge-sheet was filed by the IO against the accused Akshay, in the court for the offence punishable u/s 392/411 IPC.
3. Accused Akshay was produced before the court on 23.07.2016 and copy of charge-sheet was supplied to him as per Sec. 207 Cr.P.C. Further accused Akshay was charged for the offence u/s 392/411 IPC on 21.03.2017 by the Ld. Predecessor of this Court to which he pleaded not guilty and claimed trial. As per section 294 Cr.P.C., accused admitted certain documents like FIR, DD no. 23A and accordingly, witness at FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 2 of 26 serial no. 3 DO HC Pushpender was dropped by the Ld. Predecessor of this Court on 19.03.2018.
PROSECUTION'S EVIDENCE:
4. In order to prove its case, prosecution has examined following witnesses :
4.1 PW-1 ASI Pushpender deposed that on 07.06.2016 he was working as duty officer between 4.00PM to 12.00 midnight at about 05.45 PM, Ct. Prem handed over to him a rukka sent by IO SI Om Prakash. He lodged the DD entry no. 29A vide Ex.
PW1/A(OSR) and he proved the rukka Ex. PW1/B and FIR Ex. PW1/C. 4.2 PW-2 Ms. Radhika/ complainant deposed that on 07.06.2016, she was working at Kidzee School, Mausam Vihar, Delhi and around 03.30-03.45 PM, she was waiting for the bus at the bus stand situated opposite Marble Market, Jagatpuri, Delhi. In the meantime, her bus arrived at the stop and as she tried to board the same, suddenly one person came and snatched her mobile phone of make Karbonn Company from her hand. She further stated that after snatching the same, that person ran towards marble market after crossing the road and he pushed her due to which she fell down on the road. The persons who were present at the bus stand chased the accused and while accused was running, two police officials were also coming from the side of marble market and on seeing the public persons chasing the accused, they apprehended the accused with the help of public persons. She further stated that she also reached at the spot of apprehension of accused and her mobile phone was also recovered from the possession of accused. Thereafter, she got recorded her statement vide Ex. PW2/A and police also seized her mobile phone vide Ex. PW2/B. The accused was arrested in her presence vide arrest memo Ex. PW2/C and personal search of the accused was conducted vide personal search memo Ex. PW2/D. During her evidence in the court, she correctly identified the accused and her mobile phone i.e. the case property Ex. P1.
FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 3 of 26 She was cross examined at length by Ld. Counsel for accused wherein she stated that she does not have any documents of her employment or bill regarding the mobile phone in question. She stated that she had seen the accused Akshay for the first time in the police station. However, upon re-examination by Ld. APP on this point she stated that she had not seen the face of the accused exactly at the spot but she had met him face to face in the police station. She further stated that she had seen the face of the accused by side when he was running. She also stated that when the accused was running away from the spot, his back was towards her.
She further stated that her mobile phone was recovered from the possession of the accused and she had made call to the police at 100 number from her abovesaid mobile after apprehension of accused and recovery of her mobile from his possession. She further stated that she alongwith police officials went to the police station from the spot and there she remained for about half an hour. She further stated that no public person who apprehended the accused alongwith police official visited the PS alongwith them. She further stated that certain shops were open at the spot from where the accused was apprehended. She further stated that when the written proceedings of the case were conducted by the IO, she alongwith the accused and some police officials were present. She further stated that her statement was recorded once in the present matter.
4.3 PW-3 HC Yograj deposed that on 07.06.2016 he was posted at PS Jagatpuri as a constable and on that day at about 03.45 PM he was patrolling on foot at Marble Market, Jagatpuri. He stated that he heard the noise of "pakdo pakdo" and he noticed towards the side of said noise and he saw that from road no. 57 and bus stand opposite Marble Market, one person was coming running after crossing the road and 2- 3 persons were also running behind him shouting "pakdo pakdo". On suspicion, he also ran towards that person and apprehended him near Ambedkar Gate with the help of public persons. He further stated that the persons who were chasing the accused also included a girl namely Radhika and she informed that the apprehended person had pushed her and he ran away after snatching her mobile phone. Thereafter, complainant Radhika had taken her mobile phone of Karbonn Company of white colour from the hand of accused and made a call to the police from her abovesaid phone. He FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 4 of 26 further stated that sometime later IO/ SI Om Prakash and Ct. Prem reached at the spot and later, SI Praveen also reached at the spot and as IO Om Prakash was having injury on his hand and due to this reason SI Praveen conducted written proceedings at the spot as per the directions of SI Om Prakash. He further stated that he produced the accused Akshay before the IO and IO recorded the statement of complainant and prepared a rukka and handed over the same to Ct. Prem for registration of FIR and he accordingly went to the PS. He further stated that IO asked the public persons present at the spot to join the proceedings but none agreed and left the spot without disclosing their names and addresses. Sometime later, Ct. Prem came back at the spot and handed over the copy of FIR and original rukka to the IO. He further stated that complainant produced her mobile phone before IO and IO seized the abovesaid mobile phone after checking the same. IO prepared the site plan at the instance of complainant, arrested the accused, conducted his personal search and recorded the disclosure statement of accused. He further stated that thereafter IO got conducted medical examination of accused and recorded his statement. He correctly identified the accused during evidence in the court on 19.03.2018.
He was cross examined at length by the Ld. Counsel for accused wherein inter alia he stated that he was patrolling at the spot while performing his duty and was alone at that time. He further stated that about 10-12 public persons were gathered at the spot. He further stated that IO recorded the statement of complainant while sitting in a nearby shop at the spot. He further stated no legal notice was served on any public persons who refused to join the proceedings. Accused was taken to PS on the motorcycle of IO and complainant was taken to PS on the government vehicle / gypsy. He further stated that IO alongwith accused and complainant left the spot and he remained at the spot for his patrolling duty and reached the PS after completing his duty at about 10.00 pm. 4.4 PW-4 HC Prem Singh deposed that on 07.06.2016 he was posted at PS Jagatpuri as Constable and on that day he joined the investigation of present matter alongwith IO SI Om Prakash on receipt of DD no. 23A. He stated that upon receipt of DD, they reached at the spot i.e. road no. 57, near Marble Market, Jagatpuri and there they saw gathering of some persons and there complainant Radhika and Ct. Yograj FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 5 of 26 met them. Ct. Yograj produced one person namely Akshay before the IO and informed that he was running after snatching the mobile phone of complainant. Complainant Radhika had produced her mobile phone which was snatched by accused and recovered from possession of accused after apprehension. IO seized the mobile phone of complainant and prepared rukka and handed over to him for registration of FIR and he went to PS and after registration of FIR again came back at the spot and handed over the copy of FIR and original rukka to IO. IO recorded his statement.
He was also cross examined by counsel for accused wherein inter alia he stated that IO asked 5-7 public persons to join the investigation but none agreed and left the spot without disclosing their names or addresses. He further stated that IO conducted the written work sitting in the marble shop situated near the spot. He further stated that when he reached the spot, the mobile phone was in possession of the complainant Radhika. He further stated that IO prepared the documents of arrest of the accused at the PS. He stated that when they reached the spot there was only one police official Ct. Yograj at the spot.
4.5 PW-5 SI Om Prakash deposed that on 07.06.2016, he was posted at PS Jagatpuri as Sub Inspector. On that day, he was on emergency duty from 08.00 AM to 08.00 PM. He stated that at about 04.11 pm, DO had marked a DD entry no.23A regarding robbery of mobile phone to him. Thereafter, he alongwith Ct. Prem reached at the spot i.e. Marble Market, Ambedkar Gate Road no. 57 and met with complainant Radhika and Ct. Yograj who had apprehended the accused. The complainant produced the accused and her mobile phone and informed that the said mobile was robbed by the accused and same was recovered from the possession of accused. Thereafter, he recorded the statement of the complainant and he prepared the rukka Ex. PW 5/A and same was handed over to Ct. Prem for registration of FIR at about 05.25 pm. Thereafter, he inquired from public persons regarding to join investigation but due to shortage of time he had not issued notice in this regard to public persons. Thereafter, Ct. Prem had came back to spot alongwith copy of FIR and original rukka. He further deposed that he seized the case property i.e. mobile phone, arrested the accused and conducted his personal search. He prepared the site plan at the instance of complainant and recorded the supplementary statement of complainant. Thereafter, he FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 6 of 26 recorded the statement of witnesses. He further stated that after completion of investigation, he prepared the charge-sheet and filed the same before the court. He correctly identified the accused and the case property during his evidence in the court.
His cross examination was closed on 25.10.2021 as he was not cross-examined on behalf of the accused despite opportunity. Thereafter, an application u/s 311 Cr.P.C was moved on behalf of accused as cross examination of PW-5 IO Om Prakash could not be conducted on 25.10.2021 due to unavailability of the counsel and his application was allowed vide order dated 17.12.2021. Witness PW-5 was recalled for cross- examination.
During his cross-examination on 22.02.2022 by Ld. counsel for accused he stated that he did not file the CDR in compliance of the order dt. 15.07.2016 as he did not receive the said order. He further stated that the mobile phone was handed to him by the complainant when he reached the spot and the complainant did not hand over any ownership documents of the mobile phone to him. He stated he did not visit the shops from where the mobile phone i.e. the case property was purchased. He further stated he did not record any statement of employer of the complainant. He stated that he did not make the shop owners of Marble market as witness of the arrest as there is a service road between the Marble Market and the spot from where the accused was arrested.
5. After completion of the prosecution evidence, statement of accused u/s. 313 Cr.P.C was recorded on 29.10.2021 wherein accused stated that he was falsely implicated in the present case. He availed the opportunity to lead defence evidence and the matter was fixed for defence evidence. Thereafter, on 22.02.2022 counsel for accused submitted that he does not wish to lead any evidence and accordingly, defence evidence stood closed and matter was fixed for final arguments. No evidence has been led in the present case on behalf of the accused.
ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
6. It was argued on the behalf of the defence that the prosecution has failed to make out any case against the accused and he deserves to be acquitted. It was FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 7 of 26 submitted by Ld. Counsel for accused that the accused has been falsely implicated by the police officials in the present case and the entire prosecution story is made-up and no offence has been committed by the accused. He further submitted that the complainant and accused were known to each other as they are friends. He has argued that vide order dated 15.07.2016, the Ld. Predecessor of this court had directed the IO to file the call detail records of both the accused and the complainant upon the submission of Ld. Counsel for the accused that there is friendship between both of them. However, the IO has failed to comply with the directions passed in the said order and did not file the call detail records as directed.
7. It was further argued that during the cross-examination of PW-2/Complainant on 21.11.2017, the complainant has inter alia stated that she had seen accused Akshay for the first time in the PS. Buttressing the same argument, he submitted that as complainant has admitted that she had seen the accused for the first time in the police station, it only proves that the entire prosecution story is false and fabricated. He has further argued that the prosecution has falsely alleged that the accused was arrested on the spot in the presence of the complainant which has been proved during the cross-examination of the PW-2. He has further relied upon the cross-examination of PW-2 to submit that she has admitted that certain shops in the area were opened at the spot from where the accused was apprehended on the day of the incident and yet there are no public witnesses to the arrest of the accused.
8. Ld. Counsel for the accused further argued that there is no departure entry of PW-3 HC Yograj or PW-4 HC Prem Singh at the PS regarding their presence on the spot of the incident. He has submitted that since PW-3 HC Yograj has allegedly apprehended the accused on the spot after hearing public persons shouting and running after the accused, there must have been his departure entry from the PS regarding his presence on the spot. Further with regard to PW-4 HC Prem Singh, who had accompanied the IO SI Om Prakash during the investigation, there must have been a departure entry prior to leaving the PS on the day of the incident. He has submitted that since such entries are missing and admittedly not made in the concerned PS, it only proves that the version of the prosecution is cooked-up and FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 8 of 26 fabricated. It has been argued on behalf of the defense that there are no independent or public witnesses who have been cited by the prosecution to support its case. Ld. Counsel for the accused has argued that in the absence of the public witnesses, accused cannot be convicted of the offence he is charged for as all the witnesses cited in the charge-sheet are interested witnesses who want the case to end in conviction of the accused.
9. Ld. Counsel for the accused also argued that the site plan Ex. PW-5/B prepared by IO SI Om Prakash does not properly show the area where the alleged incident took place and from where the accused was apprehended. He further argued that the site plan prepared by the IO is wrong and does not support the case of the prosecution. Ld. Counsel for the accused further argued that prosecution has failed to prove that the mobile phone i.e. the case property was owned by the complainant. He has argued that the prosecution has not placed on record any document to establish the ownership of the complainant with respect to the mobile phone in question. Finally, it was vehemently argued on behalf of the accused that he has not committed the offence he has charged for and prosecution has failed to discharge its burden to prove that the accused has committed the offence complained of.
10. On the other hand, it was argued by the Ld. APP for the prosecution that prosecution has established the guilt of the accused beyond reasonable doubt especially through the evidence of the complainant, HC Yograj and IO SI Om Prakash. He has further argued that the prosecution has been able to establish that the accused has committed the offence of robbery on 07.06.2016 by snatching the mobile phone of the complainant and pushing her down due to which she fell on the road. Prosecution has further argued that accused was apprehended on the spot and there is sufficient evidence against the accused in the present matter to convict him for the offence punishable under section 392/411 IPC.
11. Ld. APP has further argued that there is no requirement for the prosecution to prove the ownership of the complainant over the case property i.e. the mobile phone in question. He has argued that section 378 IPC which defines the offence of theft FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 9 of 26 wherein taking away of movable property out of possession of another without consent is made punishable and there is no emphasis on the proof of ownership. Ld. APP has further argued that accused was apprehended at the instance of the complainant nearby the spot from where he ran away after committing the robbery which goes on to prove the prosecutions' version that the accused has committed the offence in question. Finally, it was argued by Ld. APP that the prosecution witnesses have collectively proved the case of the prosecution beyond reasonable doubt and the accused is liable to be convicted for the offence of robbery and recovery of stolen property.
FINDINGS WITH REASONS:
12. Arguments were heard at length from both the sides and the case file has been carefully perused. Briefly stated, it is the case of the prosecution that on 07.06.2016 while PW-2/Complainant was waiting for a bus at the bus stand opposite Marble Market Jagatpuri, the accused suddenly came there at about 3.30 - 3.45 PM and snatched the mobile phone of make Karbonn belonging to the complainant. The prosecution has further alleged that the accused after snatching her phone, pushed her due to which she fell on the road and seeing the same, some public persons chased the accused. As police officials were coming from the side of the Marble Market, they saw the accused running away and thereafter PW-3 HC Yograj apprehended the accused. It is prosecution's case that the complainant's mobile phone was recovered from the accused and when she reached the spot where PW-3 had apprehended the accused, she took her mobile phone from the accused and dialed on 100 number after which PW-5/IO and PW-4 HC Prem arrived on the spot and completed the investigation.
13. Considering the allegations of the prosecution and the material available on record, the accused was charged for offence punishable under Section 392/411 IPC by the Ld. Predecessor of this Court vide order dated 21.03.2017. Accordingly, the accused had faced trial for offence of committing robbery of the mobile phone of the FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 10 of 26 complainant and recovery of the same stolen mobile phone from him on the same day u/s 392 and 411 respectively.
14. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
15. At this stage, it is relevant to understand that the offence of robbery is defined under section 390 IPC, which is reproduced hereinafter for better understanding:-
"Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint".
From the perusal of the definition of robbery, it becomes clear that robbery is said to have been committed when during the commission of theft or while carrying away the stolen property or in the attempt to carry away the stolen property, the accused causes complainant's death or hurt or wrongful restraint or causes instant fear of the same.
FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 11 of 26
16. The offence of theft is defined under section 378 IPC which is reproduced hereinafter:-
"S. 378. Theft--Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft".
Therefore, from perusal of the definition of theft it is clear that there must be dishonest dispossession of movable property from the complainant without his consent. The term 'dishonestly' is defined under section 24 of the IPC which states that when something is done with the intention of causing wrongful loss to one and wrongful gain to another, it is said to have been done dishonestly. Therefore, it is no doubt evident that in the offence of snatching the intention of the accused is 'dishonest' to make wrongful gain to self and loss to the victim. It is also amply clear that the offence of theft as defined under the Indian Penal Code emphasizes upon 'taking away' of property or dispossessing the complainant from the property.
Needless to say, that ownership of the stolen movable property is not an essential ingredient of the offence of theft under the Indian Penal Code. Therefore, the arguments advanced by the Ld. Counsel for the accused regarding no proof of the ownership of the complainant over the case property are found to be bereft of any merit. Ld. Counsel has further argued that the prosecution has failed to collect the box, bills or receipt etc., in respect of the mobile phone in question. However, upon basic understanding of the offence of robbery that the accused is charged with, it is apparent that the said argument does not help the case of the accused by any means.
17. To prove the guilt of the accused for the offences he is charged with in the present matter it is incumbent upon the prosecution of prove the following facts:
a) that the accused has committed the theft of the mobile phone in question;
b) that the accused while carrying away the stolen property i.e. the mobile phone voluntarily caused or attempted to cause to the complainant death or hurt or wrongful restraint or instant fear of the same; and FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 12 of 26
c) accused was found in possession of the stolen property and dishonestly retained the mobile phone in question having reason to believe the same to be stolen.
18. PW-1/ ASI Pushpender proved the DD entry 29A, rukka and the FIR on record. PW-3/HC Yograj inter alia stated that during his patrolling duty near Marble Market at Jagatpuri he saw the accused running and apprehended him near the Ambedkar Gate with the help of public persons. Thereafter, he was joined at the spot by PW-4 HC Prem Singh and PW-5 IO SI Om Prakash. PW-4 has deposed regarding the fact that he accompanied the IO during the investigation upon receipt of DD no. 23A at the spot where he saw the accused, complainant and some public persons. IO PW-5 deposed regarding receipt of DD no. 23A regarding robbery and recording/preparation of statement of the complainant, rukka Ex. PW-5/A, seizure memo Ex. PW-2/B, arrest memo Ex.PW-2/C, personal search memo Ex. PW-2/D and site plan Ex. PW-5/B. IO further deposed regarding preparation of necessary documents and recording of supplementary statement of the complainant. PW-3, HC Yograj, PW-4 HC Prem Singh and PW-5 IO SI Om Prakash had identified the accused person present in the court during evidence. The case property Ex. P-1 was identified by the complainant/PW-2 during the trial and thereafter it was not disputed by the defence.
19. From the perusal of the testimonies led on record and the arguments advanced by the ld. Counsels, the court is of the view that following facts have been proved by the prosecution which have not been rebutted by the defence:-
a) While the complainant/PW-2 was standing at the bus stand on 07.06.2016, accused snatched her mobile phone and pushed her due to which she fell on the ground;
b) PW-3 was patrolling on foot and upon hearing cries for help due to the incident, he apprehended the accused with the help of the public;
c) Complainant herself took the case property from the accused and made call to police as also recorded in DD No. 23A Ex. D2. The case property was seized vide seizure memo Ex. PW-2/B;
FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 13 of 26
d) After receiving the information, IO PW-5 alongwith PW-4 reached the spot and accused was handed over to IO for interrogation and preparation of all necessary documents; and
e) The case property was correctly identified by the complainant and the accused has also been correctly identified by the complainant and other witnesses during the trial.
20. In the present matter, the most important witness produced by the prosecution is the complainant/PW-2 herself who has deposed regarding the incident. The complainant/PW-2 has inter alia stated that the accused suddenly came and snatched her mobile phone and he ran towards Marble Market after crossing the road. Pertinently she has stated that the accused pushed her after committing the offence due to which she had fallen on the road. She has further stated that accused was apprehended by police officials who were passing from that road as the public persons were also chasing the accused and after his apprehension by PW-3/ HC Yograj her mobile phone was recovered from the accused. The complainant herein is the most essential witness to the case of the prosecution and the courts have always placed much weight and reliance upon the testimony of the complainant or the injured who has suffered the offence and the subsequent mental trauma at the behest of the accused person.
21. At this juncture, it is essential to reproduce the observations of the Hon'ble Supreme Court in "Abdul Sayeed v. State of M.P"., [(2010) 10 SCC 259], which are as follows:
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 14 of 26 strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
31. Ashfaq (PW 2) had given a graphic description of the entire incident. His presence on the spot cannot be doubted as he was injured in the incident. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of Anees (PW 1) and Usman Ali (PW 4). The depositions so made cannot be brushed aside merely because there have been some trivial contradictions or omissions."
22. In the present case, the testimony of the complainant/PW-1 has remained consistent with her statement given to the police. Further, the complainant has given complete details of the incident which took place on 07.06.2016 whereby the accused snatched her mobile phone from her hand and pushed her because of which she fell on the road. Her testimony has remained consistent and is worthy of credit throughout her examination, cross-examination and re-examination. The complainant is the star witness to the present case who has clearly and completely deposed in detail regarding the facts of the alleged incident.
23. The complainant has during her cross examination on 21.11.2017 inter alia stated that "I had seen the accused Akshay for the first time in the PS." Thereafter Ld. APP for the State had made a request for re-examination of the witness which was allowed by the Court. Accordingly, during her re-examination by the Ld. APP on 21.11.2017 upon query of the Ld. APP, complainant/PW-1 stated that "I had not seen the face of the accused exactly at the spot and I had met him face to face in the PS". She further stated that "It is correct that the person who snatched my mobile phone and pushed me, while he was running away from the spot, his back was towards me. I had seen the face of accused by side when he was running."
On the basis of the aforesaid deposition during her cross-examination, Ld Counsel for the accused has vehemently argued that the entire prosecution story is false and fabricated. He has further argued that as both the parties knew each other and there was friendship between the accused and complainant, she has falsely FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 15 of 26 implicated the accused with the help of the police officials. He has strongly relied upon the cross examination of the accused held on 21.11.2017 to state that the complainant saw the accused for the first time in the police station and not at the spot where he was apprehended. Accordingly, defence has argued that there was no such incident as alleged by the prosecution and the facts presented by the complainant are fictitious. He has further argued that the accused was called at the Police Station and thereafter falsely implicated in the present case which is also corroborated from the cross examination of the complainant/PW-1, whereby she stated to have seen the accused only in the PS.
24. Section 137 and 138 of the Indian Evidence Act, 1872 explains the process of examination, cross examination and re-examination of a witness. It is very well known that the cross examination of a witness is conducted by the adverse party which can even step beyond the facts testified in her examination in chief. Thereafter, the party calling the witness may re-examine her with the permission of the court for explanation of matters which have come to light during the cross examination. Therefore, it is essential to understand that a witness can be re-examined by the Ld. APP, subject to permission of the court, for clarification of aspects dealt by the witness in her cross examination by the defence. Reliance is placed upon the observations of the Hon'ble Supreme Court in "Rammi Vs. State of MP" [(1999) 8 SCC 649], which are as follows:
16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It read thus:
"138. * * * * * Direction of re-examination- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re- examination, the adverse party may further cross-examine upon that matter."
17. There is an erroneous impression that cross-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 16 of 26 question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.
18. Even if the Public Prosecutor feels that new matter should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for providing any material fact, courts must be liberal in granting permission to put necessary questions.
25. Reverting to the facts of the case at hand, the complainant PW-1 has stated during her cross examination that she had seen accused Akshay for the first time in the police station. Thereafter, Ld. APP after obtaining the permission of the court, re- examined her whereby she stated that she had not seen the face of the accused exactly at the spot and she met him face to face in the police station. Perusal of the complete testimony of the complainant would reveal that the re-examination of the witness has only clarified her statement made during her cross examination. The ambiguity which had arisen after the statement in cross-examination of PW-1 has been clearly elucidated when the witness clarified that after snatching she had only seen him by side as he was running away. The said testimony of the witness is believable and trustworthy as the incident of snatching does naturally cause an alarm to the senses of the victim and creates an immense sense of fear due to which the witness may not be able to clearly see the complete face of the accused during the incident.
As per the prosecution, the accused was apprehended by PW-3 HC Yograj some distance away from the spot, there were certain public persons who had joined the complainant hearing her cries for help. In such a situation it is not difficult to come to the conclusion that the complainant may not have seen the accused properly at the spot of the incident or his apprehension. The complainant has averred that she has seen the accused "face to face" in the police station which only elucidates the fact that FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 17 of 26 due to the haste, confusion and disorder which is usually caused when an offence of snatching is committed, she did not see the accused so clearly when the offence was being committed. In view of the same, I am of the considered opinion that the statement of the complainant during her cross examination that she saw the accused for the first time in the PS, cannot be read in isolation with her entire testimony. Nothing material could be extracted by the defence from the cross examination of the complainant. As a necessary consequence, it cannot be said that such statement is a major contradiction from her statement given to the police or that her testimony is not worthy of credit.
26. From the careful perusal of the record it is evident that in her statement made to the police, PW-1 had stated that one police official who was roaming in the area apprehended the accused whereas during her examination in chief on 21.11.2017 she has stated that while the accused was running away after snatching her mobile phone, two police officials were coming from the side of marble market and on seeing public persons chasing him, they apprehended the accused with help of public. Even though this is a contradiction in the testimony of PW-1, however in the opinion of this court, it cannot be treated as a major contradiction so as to disbelieve the testimony of the complainant as a whole. The creditworthiness of the witness PW-1 cannot said to be have shaken due to the aforesaid contradiction and accordingly, the aforesaid minor variation in her versions cannot be held to be said to be enough to impeach her credibility. Reliance is placed upon the observations of the Hon'ble Supreme Court of India in "Bhagwan Jagannath Markad v. State of Maharashtra", [(2016) 10 SCC 537], which are reproduced herein below:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 18 of 26 attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v.State of Haryana, (1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, pp. 392-93, para 15 : 2003 SCC (Cri) 32] . On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."
27. It is the case of the prosecution that PW-3 HC Yograj (then Ct. Yograj) heard cries for help while he was on patrolling duty in the area on 07.06.2016 and then he ran towards the accused and apprehended him with the help of public persons. Ld. Counsel for the accused argued that there is no departure entry of PW-3 at the police station regarding his departure for patrolling duty on foot at the Marble Market, Jagatpuri. Ld. Counsel for the defence has argued that since there is no departure entry of the PW-3 in the police station regarding his departure for the spot where the incident took place, the accused cannot be convicted for the offence he is charged with. He has further submitted that lack of departure entry only proves his argument that the prosecution has falsely implicated the accused. However, such submission of the Ld. Counsel cannot be accepted in view of the entire testimony of the witness PW- 3 as he has withstood the test of cross examination and his testimony has remained FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 19 of 26 unimpeached on record. The testimony of PW-3 has inspired confidence and is creditworthy. In the opinion of this court, mere failure to produce departure entry in the diary/register of the concerned police station in violation of police rules cannot be given enough weightage to acquit the accused if the surrounding facts proved on record establish his guilt beyond reasonable doubt. Such observation is also fortified from the decisions of the Hon'ble Delhi High Court in "Rohit @ Mona vs Govt. of NCT of Delhi" [2016 SCC OnLine Del 4762] wherein it was inter alia held that:
29. It may be added here that in directing criticism at the evidence of Constable Neeraj (PW-3), the learned counsel for the appellant submitted that this official did not himself log any departure entry in the police station before he had set out for the patrolling duty. We do not accept this criticism in view of DD Entry 48B (Ex. PW7/A) which was logged by DD writer (PW-7) in due course of the official business of the police station at 5.50 p.m. on 20.08.2011 respecting deployment of Constable Neeraj (PW-3) for patrolling in the area in question, at a stage when the possibility of such incident happening could not have been anticipated. In the practices followed in the police department, personnel of the subordinate rank (as that of a constable) are not required to log their own individual departure or arrival entries. If a group of personnel are sent out for patrolling duty at a certain hour, a common DD Entry is generally made by an official of superior rank. Therefore, DD Entry 48B (Ex. PW7/A) is sufficient to confirm the presence of Constable Neeraj (PW-3) in the area at the time of the incident. (emphasis supplied) Further in the case Allu @ Musharaff vs State of NCT of Delhi [2016 SCC OnLine Del 3328], it was observed by the Hon'ble Delhi High Court as follows:
7. Rest of the version of the appellant is corroborated by the two police witnesses who were on patrolling duty. Merely because they did not produce the DD entry of their departure from the Police Station or they did not associate the public witnesses at the time of recovery their version cannot be belied. Moreover, it is a case where on hearing the alarm of Munni Lal, the police officers ran instantly and apprehended the appellant at the spot with knife and mobile phone was recovered. It would be too unnatural to expect that when they were apprehending the appellant, they must first join the public witnesses and then seize the knife from the appellant. Finger prints on the knife or the mobile phone call records would have only lend corroboration to the testimony of complainant Munni Lal which is otherwise corroborated by the testimony of the two other police witnesses Constable Mohd. Rahman, PW-2 and Constable Shri Bhagwan, PW-5. In the cross-examination of the three police witnesses FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 20 of 26 nothing material could be elicited. Hence version of Munni Lal does not require further corroboration from the finger print expert report or CDR.
Similarly in the present case, the version of PW-3 HC Yograj of his presence near the area on his patrolling duty has been well corroborated with the testimony of the complainant PW-1. In such circumstances, merely because the prosecution has failed to place on record the departure entry for patrolling duty of PW-3 Ct. Yograj on the day of the incident, the accused would not be entitled to acquittal especially when the other evidence proved on record points towards his guilt.
28. The most emphatic argument advanced by the defence in the present case is that the parties were known to each other prior to the incident and there was friendship between the accused and the complainant. It was vehemently argued by the defence that order dt. 15.07.2016 passed by this Court directing the IO to file call detail records of both complainant as well as accused was not complied by the IO and accordingly the same implies that such evidence was deliberately not produced by the IO. On the other hand, it was argued on behalf of the prosecution that non-compliance of the order passed by the court shall not entitle the accused for acquittal when the other facts are proved on record by the prosecution beyond reasonable doubt.
Even though it was not so argued, yet the defence has pointed to the motive of the alleged false implication of the accused at behest of the complainant by referring to the alleged friendship. However, the complainant/PW-1 was not cross-examined on this aspect at all by the Ld. defence counsel. The burden of proof to prove that fact pertaining to the alleged friendship between the complainant and the accused was upon the accused in view of the provisions contained in section 103 of the Indian Evidence Act, 1872. The accused chose not to lead any evidence in the present case to prove such friendship. So much so, that accused did not lead his own evidence for proving such friendship with the complainant. Here it is essential to mention that the court is not oblivious to illustration (g) of section 114 of the Indian Evidence Act, 1872 which provides that the court may presume that such evidence which could be and yet not produced, would be unfavourable to the person withholding it. However, in the instant case nothing prevented the accused to prove the alleged friendship with the complainant himself or through any corroborating evidence. Even if for the sake of FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 21 of 26 argument, it is assumed to be true, mere friendship between the parties, by itself is not enough a defence to throw away the entire testimony of the complainant disregarding the facts proved on record.
In his statement recorded under section 313 of the Cr.P.C accused did not mention anything regarding the alleged friendship. The entire statement of the accused recorded u/s 313 Cr.P.C is mere bald denial of the allegations made against him. The defence has thus failed to establish any prior acquaintance, ill-will or animosity on the part of the complainant so as to falsely rope the accused in the present case. Perusal of the file further reveals that issue of non-compliance of the order dated 15.07.2016 was never raised by the accused during the course of entire trial until its fag end i.e., at the stage of final arguments. Accordingly, even though there is non-compliance of the directions contained in the order dated 15.07.2016 by the IO, the same in the considered opinion of this case cannot be fatal to the case of the prosecution which otherwise have been proved on record beyond reasonable doubt.
29. Admittedly, there are no public witnesses in the present case and the defence has argued that in the absence of any independent public witness, the accused cannot be held guilty of the offence complained of. This takes relevance especially as the entire incident took place near crowded area of Marble Market, Jagatpuri about 3.45PM which is a busy time of the day. However, apart from the argument regarding lack of independent witnesses, Ld. Counsel has not pointed out to any specific inconsistencies in the testimonies of the police witnesses. In the considered opinion of this court, the testimonies of police witnesses cannot be simply ignored just because they are interested in the conviction of the accused. However, needless to say such testimonies are required to be scrutinised with caution and circumspection. In a case like the one at hand where the police witnesses have stood-up well to the rigors of cross examination, their statements have inspired confidence of the court and they have remained consistent on record, the court cannot ignore the same due to absence of an independent uninterested witness.
FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 22 of 26
30. At this juncture, it is relevant to refer to the observation of Hon'ble Supreme Court of India in "Baldev Singh Vs. State of Haryana". [(2015) 17 SCC 554], which are reproduced below:-
10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witness cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of the police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.
11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad V. State of M.P. it was held as under: (SCC pp.632-33, paras 25-27) "25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much as in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.
[26] It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated: (AIR p.230,para 40) `40......The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 23 of 26 nor good to the public. It can only run down the prestige of the police administration". (emphasis supplied) [26] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated:
(SCC p.341, para6) `6.....Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
31. In view of the aforesaid observations it is not difficult to arrive at the conclusion that testimony of police witnesses are worthy of credit and cannot be completely disregarded in the absence of independent witnesses. Be that as it may, in the present case, the testimonies of PW-3 HC Yograj, PW-4 HC Prem Singh and PW-5 IO SI Om Prakash have inspired confidence of this court and there are no major contradictions in their testimonies. Further, the argument that despite the presence of so many public witnesses the prosecution has failed to make them join the investigation is also found to be lacking on merit as the testimony of the injured/complainant has corroborated the versions of the police witnesses which have cumulatively proved the guilt of the accused beyond reasonable doubt. Even otherwise, it is common knowledge that ordinarily public at large show their disinclination to join the investigation and become witness for the prosecution. Merely because the essential witnesses, apart from the complainant are police officials shall not by itself make their testimony unworthy of any credit. The quality of evidence is and shall always be the deciding factor over its quantity. Further, Ld. Counsel for the accused has argued that he disputes the site plan Ex PW-5/B, however he failed to point out any specific discrepancy in the site plan and accordingly such submission does not require any discussion.
32. After careful perusal of the testimonies rendered in the present case, this court is of the opinion that the testimony of the complainant is cogent and convincing. The testimony of PW-2 has been corroborated in all material particulars with the testimony of police witnesses PW-3, PW-4 and PW-5 and there is no reason to disbelieve or FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 24 of 26 doubt their versions. The testimonies of important witnesses PW-2, PW-3 and PW-5 have remained unimpeached on record and thus proved.
33. The accused has been charged with the offence punishable under section 392/411 IPC. In the present case the unblemished testimony of complainant/PW-1 has established that after snatching her mobile phone, accused person pushed her and due to that she fell down on the road. This version of the complainant has been proved on record. As per section 390 IPC, as elaborated above, theft is robbery when in committing the theft or carrying away the stolen property the offender voluntarily causes hurt or fear of instant hurt to the victim. 'Hurt' as per section 319 of the Indian Penal Code, 1860 includes bodily pain and the accused in the present case has quite evidently voluntarily caused hurt to the victim/ complainant when she was trying to catch hold of him after he had snatched the victim's mobile phone. She had fallen down as a result of the voluntary hurt caused by the accused whereby he pushed her in order to complete the commission of offence and thwart her efforts of catching hold of him. Accordingly, the offence of robbery stands completed in the present case and the accused is liable to be convicted of the said offence punishable u/s 392 IPC.
Further, section 411 IPC provides for punishment in case of dishonest retention of stolen property with knowledge of its character. The prosecution has proved that the snatched mobile phone of the complainant was recovered from the possession of the accused when he was apprehended. The seizure memo Ex. PW-2/B has been proved on record which has been counter signed by the accused as well as the complainant. The Complainant had taken the mobile phone from the accused after his apprehension from road no. 57, near Ambedkar Gate, Marble Market, Jagatpuri and called the police and the same was seized by the IO when he reached the spot. Upon her call, DD No. 23A Ex. D2 was lodged and PW-4 and IO PW-5 left for the spot. Thus, prosecution has successfully proved on record the recovery of the snatched mobile phone from the possession of the accused and hence, the accused is liable to be convicted for the offence punishable under section 411 IPC.
FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 25 of 26 Accordingly, in view of the findings given above, the accused Akshay s/o Naresh Kumar is hereby convicted for the offences punishable u/s 392 and 411 IPC.
34. Copy of this judgment be given free of cost to the convict against receiving.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.03.26
18:32:09 +0530
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 26.03.2022 MM-05/ SHD, Karkardooma Courts/Delhi
Present judgment consisted of 26 pages and each page bears my signatures.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date:
2022.03.26
18:32:20 +0530
(Bharat Aggarwal)
MM-05/ SHD, Karkardooma Courts/Delhi
26.03.2022
FIR no. 169/16 PS Jagatpuri State vs. Akshay Page no. 26 of 26