Delhi District Court
State vs . Rohit @ Golu on 20 September, 2018
IN THE COURT OF MS. CHETNA SINGH:ACMM-02
(CENTRAL) TIS HAZARI COURTS, DELHI
STATE Vs. ROHIT @ GOLU
FIR No. 120/16
New Case No. 307196/16
U/s : 392/34 IPC
P.S. : Gulabi Bagh
Date of Institution : 07.10.2016
Date on which case reserved for Judgment : 20.09.2018
Date of judgment : 20.09.2018
JUDGMENT
1.FIR No. of the case : 120/2016
2.Date of the Commission : 08.08.2016
of the offence
3.Name of the accused : Rohit @ Golu
S/o late Sh. Mahesh,
R/o H. No. 10682, Gali No.8, Andha
Mugal, Pratap Nagar, Delhi-07.
FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 1 / 16
4.Offence complained of : 392/34 IPC
5.Plea of accused : Pleaded not guilty
6.Final order : Convicted.
BRIEF FACTS
1. The story of the prosecution is that on 08.08.2016 at about 5.45 AM in front of H.No. 472/1, Chishti Chaman, Kishan Ganj, Delhi within the jurisdiction of PS Gulabi Bagh, the accused alongwith co- accused Sanjay (since discharged) and Shailesh @ Ritlesh (since not apprehended) in furtherance of his common intention committed theft by wrongfully restraining complainant Sh. Subhash Chand Pandey and forcefully taking away his mobile phone make EUREKA (colour grey) bearing IMEI No. 911401507730826, 911401507750857, Rs.6000/- and some documents and thereby committed an offence punishable under Section 392/34 IPC. The matter was investigated and chargesheet was filed in the Court on 07.10.2016.
2. On the basis of the chargesheet, charge of offences punishable u/s 392/34 IPC was framed against accused Rohit @ Golu and the charge was duly explained to him in vernacular to which he pleaded not guilty and claimed trial on 31.01.2017. Thus, the matter was put to trial.
FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 2 / 16APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused, the prosecution examined 5 witnesses in total.
4. PW-1 Sh. Subhash Chand deposed that on 08.08.2016, in morning, he was going to his office. When he reached near his office at about 5.45 AM, two persons came from his back side, one person hold his neck from back side and another person took Rs.6000/- three ATM cards, one PAN card and other documents from his shirt pocket. Accused persons also took his mobile phone make Yu Yureka (grey colour) from the left side pocket of his trouser. He got unconscious for 1 minute. He saw that the accused persons were running away from the spot. He chased abovesaid accused persons but they managed to escape from the spot. He chased abovesaid accused persons but they managed to escape from the spot. The complainant correctly stated that "unhone itni jor se mera gala dabaya ki main saas nahi le paya, usse mai mar bhi sakta tha". Thereafter, some public persons made call at 100 number, who were having tea near the spot from a regular theli wala. Police officer recorded his statement Ex.PW1/A bearing his signature at point A. Police officier prepared site plan at his instance is Ex.PW1/B, bearing his signature at point A. He handed over mobile bill to police officer which is ex.PW1/C, bearing his signature at point A. Accused Rohit @ Golu correctly identified by the witness in the court.
FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 3 / 16This witness was cross-examined by Ld. Legal Aid Counsel. However, his cross-examination is not repeated here for the sake of brevity.
5. PW-2 Sh. Hemant Pandey deposed that he purchased mobile phone make Yu-Yureka from Amazon.in/com. He handed over abovesaid mobile phone to his father. Original mobile bill is placed.
This witness was cross-examined by Ld. Legal Aid Counsel. However, his cross-examination is not repeated here for the sake of brevity.
6. PW3 Retd. SI Kishan Singh deposed that on 08.08.2016, he was posted as SI at PS Gulabi Bagh as Duty officer from 8.00 PM to 8.00 AM. He received a rukka from Ct. Rinku at about 9.45 PM and registered the FIR and handed over Tehrir and copy of FIR which is Ex.PW3/A (OSR) bearing his signature at point A to Ct. Rinku for further course of action. He also made endorsement on the rukka from point A1 to A2 which is Ex.PW3/B bearing his signature at point A. He also issued certificate u/s 65-B of Indian Evidence Act which is Ex.PW3/C, bearing his signature at point A. This witness was cross-examined by Ld. Legal Aid Counsel. However, his cross-examination is not repeated here for the sake of brevity.
7. PW-4 Ct. Rinku deposed that on 08.08.2016, he was posted as Ct. at PP Andha Mughal, PS Gulabi Bagh, Delhi. At about 9.30 PM, IO handed over him one rukka for registration of FIR in the PS. On the spot, FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 4 / 16 complainant met them. They went to Gali No.5 Pratap Nagar in search of accused and the case property where they met with secret informer who told IO that one of the accused namely Rohit @ Golu is sitting in the park near street No.9. The apprehended the accused and IO arrested the accused vide arrest memo Ex.PW4/A, bearing his signature at point A. Personal search of accused was condcuted vide memo Ex.PW4/B, bearing his signature at point A. IO also recorded disclosure statement of accused vide memo Ex.PW4/C, bearing his signature at point A. Accused took them to the spot and showed the spot. IO prepared pointing out memo which is Ex.PW4/D, bearing his signature at point A. They returned to PS and accused was put behind the bar after his medical examination.
This witness was not cross-examined by Ld. Legal Aid Counsel despite opportunity being given.
8. PW5 SI Ajay Kumar deposed that on 08.08.2016, he was posted as SI/Incharge of PP Andha Mugal, PS Gulabi Bagh. On that day, at about 9.00 PM, complainant Subhash Chand Pandey came to PP. He recorded his statement. He prepared rukka which is Ex.PW5/A, bearing his signature at point A and handed over to Ct. Rinku for registration of FIR. He alongwith complainant went to spot i.e. Chisti Chaman, Sabun wali gali, Kishan Ganj, Delhi. Complainant was discharged and he alongwith Ct. Rinku went in search of accused and case property to Pratap Nagar area. In the Pratap Nagar area, a secret informer met him and informed that accused of the present case i.e. Rohit @ Golu is sitting in the park situated at Gali No. 9, Pratap Nagar. Accordingly, He pointed out towards the accused Rohit @ Golu (correctly identified by the FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 5 / 16 witness) and secret informer was discharged. Thereafter he apprehended accused Rohit @ Golu. He arrested accused and thereafter returned to PS and accused was put behind bars after his medical examination. On next day, accused was produced before court for his TIP but he refused to join the TIP proceedings. The accused was sent to judicial custody by the Hon'ble Court. He further deposed that he also tried to find out the co- accused and case property but all in vain and recorded the statement of witnesses. After completing the investigation, he filed the chargesheet before Hon'ble Court.
This witness was cross-examined by Ld. Legal Aid Counsel. However, his cross-examination is not repeated here for the sake of brevity.
9. As all witnesses were examined by the Prosecution, Prosecution Evidence was ordered to be closed on 06.08.2018. Statement of the accused Rohit @ Golu u/s 313 Cr.PC was recorded on 31.08.2018 and as no defence evidence was lead, matter was listed for final arguments. Final arguments were heard on 20.09.2018.
10. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
11. In the present matter, the prosecution has examined 5 witnesses in total to prove that accused Rohit @ Golu alongwith the co- accused persons Sanjay (since discharged) and Shailesh @ Ritlesh FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 6 / 16 (since not apprehended) in furtherance of their common intention committed theft of the mobile phone, Rs.6000/-, three ATM Cards and one PAN card from the pocket of the complainant Sh. Subhash Chand Pandey.
12. Before appreciating the evidence as stated above in brief, it is necessary to state the essential ingredients of Section 392 IPC which are as follows:-
i. when any person in order to the committing of theft or in committing theft, or in carrying away or attempting to carry away property obtained by theft.
ii. voluntarily causes or attempts to cause to any person death or hurt or wrongfully restraint.
iii. by fear of instant death or of instant hurt or of instant wrongful restraint.
13. It has been observed that Harish Chandra Vs. State of UP AIR 1976 SC 1430 that:
"Robbery: the offence of robbery is defined in Section 390 of IPC. The robbery is punishable u/s 392 of IPC. When force is FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 7 / 16 used to enable another to carry away the booty, it amounts to robbery."
14. Essential ingredients of Section 34 IPC are as follows:
(1) That there must be a criminal act;
(2) The act must have been done by several persons
in furtherance of their common intention;
15. In order to prove its case, the prosecution has examined only one material witness who is the complainant who was present at the spot at the time of the incident. The complainant Sh. Subhash Chand Pandey deposed that on 08.08.2016, in morning, he was going to his office. When he reached near his office at about 5.45 AM, two persons came from his back side, one person held his neck from back side and another person took Rs.6000/- three ATM cards, one PAN card and other documents from his shirt pocket. Accused persons also took his mobile phone make Yu Yureka (grey colour) from the left side pocket of his trouser. He got unconscious for 1 minute. He saw that the accused persons were running away from the spot. He chased abovesaid accused persons but they managed to escape from the spot. He further deposed that "unhone itni jor se mera gala dabaya ki main saas nahi le paya, usse mai mar bhi sakta tha". Thereafter, some public persons made call at 100 number, who were having tea near the spot from a regular theli wala. Police officer recorded his statement Ex.PW1/A bearing his signature at point A. Police officer prepared site plan at his instance is Ex.PW1/B, bearing his signature at point A. He handed over mobile bill to police officer which is FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 8 / 16 ex.PW1/C, bearing his signature at point A. Accused Rohit @ Golu was correctly identified by the witness in the court.
16. Apart from this witness, no other public witnesses has been examined by the prosecution. The Investigating Officer could have made the person who made the PCR call a witness, however, no public witness has been cited apart from the complainant. Since, there is no other public witnesses to the alleged incident, it is to be seen whether the complainant's testimony can be considered to be trustworthy, coherent, cogent and reliable. In this regard, it is necessary to examine the testimony of the complainant and compare the same with his original statement recorded on the date of incident which is Ex.PW1/A. A perusal of Ex.PW1/A reveals that the complainant has disclosed the entire sequence of events as stated above in his original statement. No contradiction whatsoever can be noted in the testimony of the complainant in court and in his original statement Ex.PW1/A. The only way to test the veracity of the complainant was to subject him to thorough cross-examination. The complainant was thoroughly cross-examined by Ld. Legal Aid Counsel. However, he reiterated his earlier version wherein he stated that he narrated the facial features and physical built of the accused to the police.
17. No doubt the Investigating Officer could have made efforts to join other public witnesses during the course of investigation. However, this court is aware that in the given circumstances prevailing in this country most of public persons are wary in joining the investigation.
FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 9 / 1618. Even otherwise, it is settled law that the testimony of a single witness if cogent and trustworthy and can be relied upon by the court for arriving at a conclusion whether the accused is guilty of the alleged offence or not.
19. In the matter of State U.P. Vs Ballabh Das (AIR 1985 SC 1384) (1984 Cri LJ 2009) the SuprehimCourt in paras 3 and 5 at page 385 observed:-
"There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for conviction an accused. What the law requires is that where the witness are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication."
20. In the matter of State of U.P. Vs M.K. Anthony (Air 1985 SC
48): (1985 Cri LJ 493) the SuprehimCourt observed in para 10 at page 54:-
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once the impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 10 / 16 the evidence as a whole and evaluate them to find out whether it is against the general benor or the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief.
Even honest and trustful witness may differe in sohimdetails unrelated to the main incident because power of observation, retentions and reproduction differ with individuals."
21. Further, in the matter of "Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19" it has been observed that:-
"....Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs...."
22. It was further argued by Ld. defence counsel that the only incriminating evidence against the accused is that he refused to FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 11 / 16 participate in the TIP proceedings. He stated that the reasons for not participating in the TIP proceedings was that the face of the accused was shown by the police to the complainant. However, it is highly unlikely that the complainant would falsely implicate the accused in such like matters especially when stolen articles were also not recovered from the accused. There is no defence of the accused that the complainant had any previous enmity with him. Even otherwise, the complainant had correctly identified the accused in the court and thus the identification of the accused Rohit @ Golu has been clearly established.
23. Apart from the testimony of the complainant as discussed above, various other documents prepared by the Investigating Officer (IO) have been proved by him during the course of his testimony as PW5 and other police official who registered the FIR etc were also examined including Ct. Rinku as PW4 who was present with the IO at the time of arrest of the accused from street No. 9 on the basis of the information received from secret informer. PW4 Ct. Rinku identified his signatures on the arrest memo, personal search memo, disclosure memo and the pointing out memo at point A.
24. PW4 Ct. Rinku was not cross-examined by Ld. defence counsel despite opportunity given and thus it is settled law that his testimony is to be accepted by the court as the same remained un- controverted and un-rebutted.
25. It is settled law that police witnesses are reliable witnesses FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 12 / 16 even without independent corroboration. It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. State" (AIR 2003 SC 1311) that :-
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
26. The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) has held that:-
"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 complainant or a police official but it is not the law that the 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 FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 13 / 16 applies as much 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".
27. Thus, even though no recovery was effected from the accused Rohit @ Golu, however, he was correctly identified by the complainant to be the person who had committed robbery with him in furtherance of his common intention with other co-accused persons who could not be apprehended. The complainant correctly stated that "unhone itni jor se mera gala dabaya ki main saas nahi le paya, usse mai mar bhi sakta tha". There is no possibility that the complainant would falsely implicate the accused unless he was sure that the accused was one of the persons who was amongst the persons who had committed robbery upon him. Thus the prosecution has been able to prove all the ingredients required for conviction of accused Rohit @ Golu u/s 392/34 IPC.
28. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 14 / 16 which are per-requisites before conviction should be recorded, which are as under:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The circumstances concerned "must or should"
and not "may be" established;
(3) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 15 / 16
29. As a cumulative effect of the above said discussion, it is clear that it has been adequately proved by the public as well as police witness that accused Rohit @ Golu in furtherance of his common intention with co-accused persons (since not apprehended) voluntarily committed theft upon complainant Sh. Subhash Chand Pandey and thus the accused Rohit @ Golu is hereby held guilty for offence punishable under Section 392/34 IPC. Hence, accused Rohit @ Golu is convicted of charges for the offence punishable u/s 392/34 IPC.
30. Ordered accordingly.
Digitally signed by CHETNA CHETNA SINGH
Announced in the open SINGH Date:
2018.09.24
Court on 20.09.2018 15:18:43 +0000
(Chetna Singh)
Addl. Chief Metropolitan Magistrate
Central/Tis Hazari Courts, Delhi/ 20.09.2018 FIR No. 120/16 State Vs Rohit @ Golu PS: Gulabi Bagh Page No. 16 / 16