Delhi District Court
In Re: State vs Bholu on 17 February, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:SOUTH
DISTRICT:SAKET COURTS: NEW DELHI
In Re: STATE VERSUS BHOLU
F.I.R. No: 83/01
U/s 457/380 IPC
P.S. Defence Colony
Date of Institution of Case : 05.09.2001
Judgment Reserved for : 03.02.2012
Date of Judgment : 03.02.2012
JUDGMENT:
(a) The serial no. of the case : 133/2/01
(b) The date of commission of offence : 5/6.02.2001
(c) The name of complainant : Sh. Mahesh Taneja S/o Sh.
Pitambar, R/o 3/196, Andrews
Ganj, New Delhi.
(d) The name, parentage, of accused : Bholu S/o Sh.
Shamshuddin, R/o Jhuggi Sewa
Nagar, PS Lodhi Colony, New
Delhi.
Present Address : As above
FIR No. 83/01 State Vs. Bholu 1/23
(e) The offence complained of : U/s 457/380 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 03.02.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on the intervening night of 5/6.02.2001 in between 9.30 pm to 4.30 am at H.No. 3/196, Andrews Ganj, New Delhi within the jurisdiction of PS Defence Colony accused Bholu committed house breaking by night in the above mentioned house by breaking locks of the house with an intention to commit theft and committed theft of one watch, Pajeb of silver belonging to complainant Mahesh Taneja from his aforesaid house in the night and same were recovered from his possession and thus thereby accused committed offence punishable u/s 457/380 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide order dated 29.05.2004, charge u/s 457/380 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
FIR No. 83/01 State Vs. Bholu 2/23
3. In order to prove the charges against the accused, prosecution examined four witnesses. After the PE was closed, statement of the accused was recorded u/s 313 Cr.P.C. wherein he claimed himself to be innocent and having been falsely implicated in the case. He also examined himself as DW1. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 HC Dharamvir deposed that on the intervening night of 5/6/01 he was posted as DO at PS Defence Colony. On that day, at about 5.10 am he received a call on his wireless regarding the apprehension of thief in H. No. 192/3, Andrews Ganj. He deposed that on receipt of this information he entered this information in his DD register vide DD no.23A i.e. Ex. PW1/A. He deposed that he marked the same to HC Janardhan for further investigation. He deposed that at about 6.40 am on receipt of rukka brought by Ct. Yogender sent by HC Janardhan he registered the case FIR No.83/01 vide Ex .PW1/B and made endorsement on the rukka vide Ex. PW1/C. He deposed that after recording the FIR he handed over the copy of FIR and rukka to Ct. Yogender.
5. PW2 Mahesh Taneja deposed that on 05.02.2001 in the evening he had gone to Faridabad with his family and on the next day i.e. 06.02.2001 when he came back he found that the door of his house was lying open and the locks were opened. He deposed that he along with the help of his neighbors tried to FIR No. 83/01 State Vs. Bholu 3/23 get inside his house. He deposed that the accused (correctly identified) tried to run away. He deposed that he along with the help of his neighbors apprehended him. He deposed that his neighbors called the police by making a call at 100 number. Police came at his house within 510 minutes. He deposed that they handed over the accused to the police. He deposed that police took the search of accused and recorded his statement vide Ex. PW2/A. He deposed that from the search of the accused one pajeb of silver, one wrist watch make titen, one chilli powder and one iron rod were recovered. He deposed that he identified his watch and pajeb. He deposed that recovery memo in this respect is Ex .PW2/B. He deposed that police seized the broken lock vide seizure memo Ex .PW2/C. He deposed that personal search of the accused was conducted vide Ex. PW2/D. This witness has correctly identified the case property i.e. Ex. P1 collectively.
6. During his cross examination, he admitted that he had not seen the accused committing the theft however when he reached at his house, he was trying to run away from his house. He stated that he came back to his house from Faridabad next day at 5.00 am. He stated that he lived in a Government Quarter and there are many other houses surrounding his house. He stated that the houses which were situated in front of his house were no. 190 & 192. He stated FIR No. 83/01 State Vs. Bholu 4/23 that in house no.190 one Akhilesh used to live but at present he was not residing there. He stated that the family living in H. No. 190 & 192 were present when he had gone to Faridabad. He stated that the house which was adjacent to his house was lying locked. He stated that he had good relations with his neighbors who were residing in H. No. 190. He admitted that silver pajeb and wrist watch, two locks recovered from the accused were his and iron rod was of accused. He stated that he had no proof of ownership of pajeb and wrist watch. He denied the suggestion that pajjaib and wrist watch were not his and accused has been falsely implicated in this case. He stated that he identified his articles in the PS. He stated that his wife had not identified the recovered pajjaib. He stated that police reached at his house at 5.15 am and remained there for about 1520 minutes. He stated that police had not interrogated his neighbors who were residing in H. No. 192. He denied the suggestion that police had not come to his house and he had handed over the accused to the police in the PS. He denied the suggestion that all the proceedings were done at the PS. He stated that the disclosure statement of accused was not recorded in his presence. He stated that police had not brought the accused back to his house from the PS. He denied the suggestion that he had a quarrel with the accused and therefore, he had falsely implicated the accused.
7. PW 3 HC Yogender Singh deposed that on 06.02.2001 he was posted as FIR No. 83/01 State Vs. Bholu 5/23 Ct. at PS Defence Colony and on that day, on receipt of DD no. 23 A, he along with HC Janardhan reached the spot i.e. H. No. 152/3, Andrewz Ganj, New Delhi where they met complainant Mahesh Tanjeja with some public persons who had already apprehended accused Bholu. He deposed that complainant gave a written complaint to the IO i.e. Ex.PW2/A on which IO prepared the rukka i.e. Ex.PW1/C and handed over the same to him for registration of FIR. He deposed that after registration of FIR, he came back to the spot along with the copy of FIR and original rukka and handed over the same to the IO. He deposed that IO arrested the accused (correctly identified) vide arrest memo Ex.PW3/A and conducted his personal search vide memo Ex.PW2/D. He deposed that on the personal search of the accused, one pair of silver anklet, One Titan Quartz Watch and a small packet containing chilly powder were recovered and IO prepared the seizure of the same vide Ex.PW2/B. He deposed that IO also recorded the disclosure statement of the accused vide Ex.PW3/B. He deposed that thereafter, IO prepared the site plan in his presence vide Ex.PW3/C. He deposed that accused in his disclosure statement confessed that he had also committed theft at H. No. A175, Defence Colony, D336, Defence Colony and also at H. No. 14, Sri Fort road and pointing out memos of the same i.e. Ex.PW3/D1 to D3 were accordingly prepared. He deposed that on his pointing out, a wrist watch also recovered from cement pipes placed on the road near AIIMS hospital and the seizure memo of the same is Ex.PW3/E. FIR No. 83/01 State Vs. Bholu 6/23 Case property is already Ex.P1.
8. During his cross examination he stated that the spot is a residential area. Some flats are also located near the spot. He stated that they reached the spot at about 5.20 am. He stated that they remained at the spot for around 2 hours. He stated that IO also recorded the statement of a public witness namely Mr. Shailender Kumar. He stated that when they reached the spot, complainant was present there who had already apprehended the accused. He stated that IO recorded the disclosure statement of the accused in his presence. He denied the suggestion that the disclosure statement of the accused was recorded at the PS itself or at the instance of the complainant. He admitted that the disclosure statement of the accused bear his signature as a witness. He stated that he does not remember where the public witness Shailender Kumar was residing at the time of the incident. He admitted that the site plan does not bear his signature. He denied the suggestion that accused has been falsely implicated in the present case at the instance of the complainant or entire proceedings were conducted at the PS itself. He denied the suggestion that no recovery was affected from the accused.
9. PW 4 HC Janardhan Singh deposed that on 06.02.2001 he was posted as HC at PS Defence Colony and on that day, on receipt of DD no. 23 A, he along FIR No. 83/01 State Vs. Bholu 7/23 with Ct. Yogender Singh reached the spot i.e. H. No. 152/3, Andrewz Ganj, New Delhi where they met complainant Mahesh Tanjeja with some public persons who had already apprehended accused Bholu. He deposed that complainant gave a written complaint to him i.e. Ex.PW2/A on which he prepared the rukka vide Ex.PW1/C and handed over the same to Ct. Yogender Singh for registration of FIR. He deposed that after registration of FIR, Ct. Yogender Singh came back to the spot along with the copy of FIR and original rukka and handed over the same to him. He deposed that he arrested the accused (correctly identified) vide arrest memo Ex.PW3/A and conducted his personal search vide memo Ex.PW2/D. He deposed that on the personal search of the accused, one pair of silver anklet, One Titan Quartz Watch and a small packet containing chilly powder was recovered and he prepared the seizure of the same vide Ex.PW2/B. He deposed that he also recorded the disclosure statement of the accused vide Ex.PW3/B. He deposed that thereafter, he prepared the site plan at the instance of the complainant i.e. Ex.PW3/C. He deposed that accused in his disclosure statement confessed that he had also committed theft at H. No. A175, Defence Colony, D336, Defence Colony and also at H. No. 14, Sri Fort road and pointing out memos of the same i.e.Ex.PW3/D1 to D3 were accordingly prepared. He deposed that on his pointing out, a wrist watch also recovered from cement pipes placed on the road near AIIMS hospital and the seizure memo of the same is Ex.PW3/E. He deposed that he recorded the statement of the complainant, FIR No. 83/01 State Vs. Bholu 8/23 witness Shailesh Kumar and Ct. Yogender Singh at the spot. He deposed that he deposited the case property with MHC(M) PS Defence Colony. He deposed that he also sent the accused for medical examination. He deposed that thereafter, he filed the challan in the court.
10. During his cross examination he stated that they reached the spot at about 5.20 am and remained at the spot for about 2 hours. He admitted that the spot is located in a residential area and there are many flats nearby. He stated that he does not know whether the complainant was residing at the said address as govt. allottee or as a tenant. He stated that the spot was a double storey building. He stated that he does not remember how many flats are located at the first floor of the building. He admitted that when he reached the spot the complainant had caught hold of the accused and numerous public persons were surrounding them. He stated that he inquired from the public persons who were present at the spot but none except one public witness i.e Shailesh Kumar, disclosed their name and address. He stated that no notice for nonjoining of the investigation was given to the public person who refused to join the investigation. He stated that the disclosure statement of the accused was recorded at the spot. He stated that he does not remember how many public persons were present when he recorded the disclosure statement of the accused. He stated that disclosure statement of the accused was recorded after giving first aid to the accused as he FIR No. 83/01 State Vs. Bholu 9/23 was injured. He stated that he does not remember the exact time when he recorded the disclosure statement of the accused. He stated that as the accused had not given his address to him so it was not possible for him to give any notice to his friend/family. He denied the suggestion that the accused has been falsely implicated in this case at the instance of the complainant or no recovery has been affected from the accused. He denied the suggestion that he was deposing falsely.
11. This so far is the prosecution evidence in the matter is concerned. In his defence, the accused examined himself as DW1.
12. DW 1 Sh. Bholu deposed that on the date of incident, he was living along with his wife Sameena Begam in jhuggi Sewa Nagar, New Delhi. He deposed that he does not remember the date of the incident but in the year 2001, on the day of incident, he was working as a washerman in a tent when he received a message from his neighbor Aslam that his wife who was in family way was having stomach pain. He deposed that he immediately rushed towards his house and on the way he collided with Deepak Taneja. He deposed that he started quarreling with him, called people from his neighborhood and he was taken to police station. He deposed that he was beaten at the PS and implicated in this false case. He deposed that his signatures were also obtained on certain blank FIR No. 83/01 State Vs. Bholu 10/23 papers. He deposed that he was innocent and he never committed the theft.
13. During his cross examination by Ld. APP for the State he stated that he cannot tell the name of the tent house i.e. its owner or address where he was working as a washerman on the day of incident. He admitted that he does not remember the date/month/time of incident. He stated that it was his first date at the tent house when the incident occurred. He stated that his wife was not taken to hospital on that day. He stated that Deepak Taneja along with his neighborers had taken him to PS. He admitted that the name of the complainant in the present FIR is Mahesh Taneja and not Deepak Taneja. He stated that he had not known either Mahesh Tanejaj or Deepak Taneja prior to the incident. He stated that he does not know why Deepak Taneja involved him in this case. He stated that Aslam is no longer residing at his address as the jhuggi has been demolished and accordingly, he cannot produce him in the court. He denied the suggestion that the Titan watch and a pair of silver anklet were recovered from him. He voluntarily stated that they were planted upon him at the PS. He denied the suggestion that he was deposing falsely. He denied the suggestion that he had indeed committed the theft and have been rightly charge sheeted in the present FIR.
14. I have heard the arguments advanced at bar by the learned Defence FIR No. 83/01 State Vs. Bholu 11/23 counsel as also learned APP, carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
15. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
16. It stands proved from the deposition of PW2 i.e. Complainant Mahesh Taneja that on 06.02.2001 he had caught accused Bholu red handed with his stolen watch and silver pajeb while he was trying to flee away after having tress pass and committing theft at his residence i.e. H. No. 3/196, Andrews Ganj, New Delhi.
This witness proved that on the above said time date and place when he came back to his house from Faridabad he found the doors of his house opened and the locks broken and when he tried to enter his house with the neighborers the accused tried to flee away but was apprehended by him. He proved that the police was called, the accused was handed over to them and on his search one wrist watch make Titen and one silver Pajeb apart from an iron rod and chilly powder were recovered from his possession. He proved that he gave his complaint/statement to the police as Ex. PW2/A and the police seized the FIR No. 83/01 State Vs. Bholu 12/23 recovered articles along with the broken locks vide documents Ex. PW2/B & C. He also proved that the accused was arrested vide Ex. PW2/D.
17. Hence, this witness duly proved the incident of tress pass and theft, established the identity of the accused as the perpetrator of crime and also identified the case property during trial.
18. The deposition of this witness was duly corroborated by other prosecution witnesses.
19. PW1 HC Dharamvir proved DD no.23 A as Ex .PW1/A which was the information regarding the incident of theft/apprehension of accused as well as the FIR as Ex. PW1/B. He also proved the endorsement made by him on the rukka as Ex. PW1/C.
20. PW3 HC Yogender Singh and HC Janardan Singh (PW4) lend further corroboration to the prosecution story. Both of them proved that on receipt of information vide DD no.23 A they reached at the spot where they met the complainant and some public persons who had apprehended accused Bholu. They proved that complainant Mahesh gave his complaint as Ex. PW2/A and upon the search of the accused one pair of silver anklet (pajeb), one titen watch, FIR No. 83/01 State Vs. Bholu 13/23 a packet of chilly powder were recovered from him. Both these witnesses went onto prove the arrest of the accused and the seizure of the stolen articles on the same lines as proved by the complainant.
21. During the course of argument, Ld. Defence counsel vehemently argued that the accused has been falsely implicated by the complainant and the IO and in fact the accused never committed the alleged theft and the recovery if any has been planted upon the accused. It was also submitted that the prosecution story suffers from various loopholes for example prosecution could not examine any independent witness during the trial as the sole independent witness Sh. Sailesh Kumar could not be brought to the witness box despite numerous opportunities and though it stands proved from the testimony of PW2 and the IO that numerous public persons were present at the spot at the time of incident however, none was joined in the investigation. It was argued that the prosecution witnesses contradicted each other on material particulars for example PW2 during his cross examination stated that the cross examination of the accused was not recorded in his presence. On the other hand, the IO claimed that the disclosure statement of the accused was recorded at the spot itself. It was argued that the case property/the alleged recovered property/stolen articles were not sealed by the IO and hence, the same being tempered with/planted upon the accused cannot be ruled out.
FIR No. 83/01 State Vs. Bholu 14/23
22. However, I do not agree with either contentions of the Ld. Defence counsel.
23. Firstly, I find no reasons as to why the complainant or the police officials would falsely implicate the accused there being no previous rivalry/enmity against them. In fact, there is nothing on record to suggest that the accused was known to the complainant or the police officials prior to incident/recovery dated 06.02.2001. The defence has failed to prove on record any motive which could be assigned to the complainant or the IO for falsely implicating the accused.
24. Just because no independent witness from the locality was joined by the police it cannot be held that the prosecution story is unreliable or false. In fact, it is evident from the list of witnesses that there was one more public witness namely Shailender Kumar which the prosecution proposed to examine however, during the course of trial the said witness changed his address and hence, he could not be produced in the witness box. But merely on account of the witness having changed his address and hence, inability of the prosecution to produce the witness does not cast any serious doubt upon the prosecution case and nei ther does it render the testimony of the complainant unreliable or untrustworthy.
FIR No. 83/01 State Vs. Bholu 15/23
25. The star/material witness of the prosecution case is the complainant i.e. Sh. Mahesh Taneja's testimony is self sufficient to nail the accused. The prose cution story is absolutely consistent as to the apprehension of the accused, re ceipt of the information at PS, recording of statement of the complainant, arrest of the accused and deposit of the case property at Malkhana. It is an absolutely flawless story which inspires confidence. A careful reading of complaint Ex. PW2/A and DD no.23A leaves out any possibility of any manipulation or any chances of the accused been falsely implicated. DD no.23A was a wireless mes sage received at PS Defence Colony through PCR about the incident of theft and the apprehension of the thief. Immediate action was taken upon said DD no.23A and PW3 HC Yogender and PW4 Janardhan reached at the spot and the com plainant narrated the entire incident to them vide his complaint Ex. PW2/A. Both these documents i.e Ex. PW2/A & Ex. PW1/A clubbed with the recovery of the stolen articles from the accused and his arrest leaves no doubt that the offence was in deed committed by the accused.
26. At this stage, I would like to highlight the answer given to question no.3 by accused Bholu during his examination u/s 313 Cr.P.C. The answer read as under: "................I used to work as a washerman in a tant house company. On the day of incident, I received a message from my wife who was in FIR No. 83/01 State Vs. Bholu 16/23 family way that she is not well and while I was rushing towards my house, I banged into the complainant. We had a quarrel/fight and he falsely implicated me in this case. I never committed any theft and nothing was recovered from me. "
27. This answer is admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. as well as the law laid down in Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258 and State of H.P. V. Wazir Chand AIR 1978 SC 315 and it proves his presence at the date, time and place of the incident. It also proves that he was arrested by the police.
28. If, we add to the above admissions made by the accused during his examination u/s 313 Cr.P.C. certain suggestions given to complainant Mahesh Taneja (PW2) and IO it further fortifies my finding that the accused was in deed apprehended at the spot along with the stolen property by the complainant. The suggestions as given during the cross examination of PW2 read as under:
"It is correct that silver Pajeb and the wrist watches recovered from FIR No. 83/01 State Vs. Bholu 17/23 the accused were mine and the other articles ............................................... and iron rod was of accused."
"It is wrong to suggest that the police did not come to my house and I had handed over the accused to the police in the police station."
29. Suggestions given to PW4 read as under:
"It is correct that when I reached the spot the complainant had caught hold of the accused and numerous public persons were surrounding them."
These fatal suggestions proved the presence of the accused at the spot as well as the fact that the stolen articles were recovered from his possession.
30. Though, he claimed that he was falsely implicated at the instance of the complainant as he had accidentally brushed against him however, the said plea does not inspire confidence and seems highly farce and hollow on the face of it. I am not inclined to believe that merely because the accused brushed against the complainant which resulted into a quarrel the complainant would have colluded with the police and falsely implicated the accused in a case of theft. Moreover, though the accused examined himself in his defence however, his defence evidence also failed to inspire confidence and in fact further strengthened my opinion that he was cooking up a false story. Though, he claimed in his testimony FIR No. 83/01 State Vs. Bholu 18/23 that on the day of incident he was working as a washerman in a tent house however, when asked about the name of the tent house/its owner, address etc. he miserably failed to provide any details. Similarly, though he claimed that he had received the message about his wife's ailing condition from his neighbor Aslam however, when grilled about the whereabouts of the person he failed to provide any particulars. Moreover, he admitted that his wife was not taken to hospital on the day of incident though he had claimed that it was her ailing condition i.e. she had to be rushed to the hospital which forced him to run towards his house because of which he collided with the complainant. All this proves that he was speaking nothing but lie.
31. Regarding the non joining of the other public persons who were present at the spot. It is well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. Civilized people withdraw both from the victim and the vigilante and they keep FIR No. 83/01 State Vs. Bholu 19/23 them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
32. There is no requirement of law that everyone who has witnessed the occurrence, whatever there number be, must be examined as a witness. (Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Criminal 701). In Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investigation and (2) Normally, nobody from public is prepared to suffer any inconvenience for the sake of society.
33. Regarding the discrepancies as appearing in the testimony of PW2 and the IO as pointed out by the Ld. Defence Counsel suffice would be to say that these contradictions are too trivial and do not casts any shadow of doubt upon the prosecution story. Human memories apt to blur with passage of time. The incident occurred on 5/6.02.2001 and the deposition of witnesses was recorded in the year 2005 (PW2) and 2011 (PW4) i.e. after a gap of 410 years. After such a long time period a person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weightage/ due allowance. Reliance may be placed upon the law laid down in Bharwada FIR No. 83/01 State Vs. Bholu 20/23 Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 , Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 . The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
34. As far as the contentions regarding non sealing of the case property by the IO are concerned, in my opinion same were half hearted and futile attempts on the part of the defence to save the accused. There is no requirement that the case property ought to be sealed after its recovery. It is a matter of caution that the investigating officers are impressed upon to seal the case property so as to rule out its being tempered with. But just because the IO failed to do so that does not render the testimony of the complainant unreliable or untrustworthy. I find no reasons to disbelieve the complainant. The recovery of the stolen articles along with the broken locks and a iron rod and his apprehension by the complainant at the spot leaves no doubt that the accused had in deed tress passed into the FIR No. 83/01 State Vs. Bholu 21/23 house of the complainant as the same was vacant and while he was trying to flee away with the booty he was apprehended by the complainant.
35. Moreover, Why should an accused go scott free or the complainant be disbelieved for defective/faulty/negligent investigation (Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717). If the IO has failed to perform his duty diligently the complainant cannot be disbelieved or punished for the mistake of the IO.
36. Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies. Reliance may be placed upon law laid down in Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82,. Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal) 231, Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660. To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective.
37. Accordingly, in view of my above discussion, the incident of house tress pass as well as theft and recovery of the stolen articles from the accused stands proved and accused Bholu is accordingly held guilty under section 457/380 IPC.
FIR No. 83/01 State Vs. Bholu 22/23
38. I order accordingly.
39. Copy of the judgment be given to the accused free of cost.
40. Let he be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao)
Court on 03.02.2011 MM (South)/Delhi.
FIR No. 83/01 State Vs. Bholu 23/23
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:SOUTH DISTRICT:SAKET COURTS: NEW DELHI In Re: STATE VERSUS BHOLU F.I.R. No: 83/01 U/s 457/380 IPC P.S. Defence Colony ORDER ON SENTENCE 17.02.2012 Present: Ld. APP for the State.
Convict Bholu is present along with his counsel.
Vide judgment announced on 03.02.2012 accused was convicted u/s 457/380 IPC.
The learned defence counsel has submitted for the convict that convict has been facing trial for the last more than 11 years and the same itself has been enough punishment for him and accordingly he may be given benefit of Section 428 Cr.P.C. and released on period already undergone in custody. It was further prayed that accused/convict be given benefit of section 360 Cr.P.C. and either released on probation or after due admonition.
Per contra, learned APP has very vehemently argued that the act of FIR No. 83/01 State Vs. Bholu 24/23 the accused is unpardonable. It was submitted that the accused deserves no leniency.
After giving my thoughtful consideration to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case it shall meet the ends of justice if convict Bholu is sentenced to undergo 2 years and 29 days SI along with fine of Rs.5000/ each for offence u/s 457/380 IPC. In default of payment of fine he shall further undergo SI of 50 days. As the accused has already undergone 29 days in custody (06.02.2001 to 07.03.2001), benefit of section 428 Cr.P.C. is given to the accused/convict and the said period be deducted from the sentence so awarded today.
I am not inclined to give him benefit of Section 360 Cr.P.C. as firstly, the accused is involved in other cases of theft and it is a very serious offence which was committed by the accused. He tress passed into a vacant house and committed theft during the early hours which shows his criminal bent of mind.
At this stage, an application u/s 389 Cr.P.C. has been moved by accused Bholu for suspension of sentence. Considered. As the accused was on bail during trial he is admitted to bail on furnishing bail bond in the sum of Rs. 10,000/ with one surety of the like amount for 30 days.
A copy of this order be given to the convict free of cost.
FIR No. 83/01 State Vs. Bholu 25/23 File be consigned to Record Room. Announced in the open court (Gaurav Rao) on 17.02.2012 MM(South): Delhi FIR No. 83/01 State Vs. Bholu 26/23