Delhi District Court
Fir No. 305/17, Ps-Sarita Vihar State vs Rohit Kumar Page No. 1 Of 19 on 31 July, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE
VS
ROHIT KUMAR
FIR No. : 305/17
U/s. 341/380/457/458/411/34 IPC
PS : Sarita Vihar
A. Cr No. : 5385/17
B. Date of Institution : 13.10.2017
C. Date of Commission of Offence : 01.10.2017
D. Name of the complainant : Sh. Ashok Kumar Yadav
E. Name of the Accused : Rohit Kumar,
S/o Bhavesh Mandal,
R/o Jhuggi no. 333
Near Hanuman Mandir,
Priyanka Camp,
New Delhi
FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 1 of 19
F. Offences complained of : 341/380/457/458/
411/34 IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not reserved
I. Final order : Convicted.
J. Date of such order : 31.07.2018
JUDGMENT
Brief Facts :-
1. It is alleged by the prosecution that on 01.10.2017 at about 02:00 AM accused Rohit and one CCL entered the house of the complainant at night by breaking the jali of window with intent to commit theft of articles belonging to the resident of the said house. The accused Rohit and the CCL are further alleged to have committed lurking house trespass/ house breaking by night having made preparation to cause hurt/ assault/ wrongful restraint and by putting the victim in fear of hurt/ assault/ wrongful restraint for purpose of committing theft and other offences. They both, in furtherance of their common intention are further alleged to have committed theft of laptop HP I-7, (Black colour), Nokia CE0434 Mobile phone (black colour) and purse belonging to the complainant. The accused and the CCL, in the process of taking FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 2 of 19 away the stolen properties, obstructed the victim Ashok Kumar Yadav and caused simple hurt to him. The stolen properties i.e., the mobile phone, laptop and purse were retained by both of them after committing theft and were subsequently recovered from their possession. Accordingly, the case was registered for commission of relevant offences and charge sheet was filed U/s 341/380/457/458/411/34 IPC against accused Rohit Kumar. The other co-accused who was a CCL was under trial before concerned JJB.
2. Chargesheet was perused and cognizance was taken against accused Rohit Kumar. The accused was provided with the copy of chargesheet and documents.
3. After hearing arguments on charge, Prima facie offences punishable U/s 341/380/457/458/411/34 were found to made out against the accused Rohit Kumar. Formal Charge was framed accordingly and explained to accused to which he pleaded not guilty and claimed trial. Accordingly, the matter was listed for prosecution evidence.
4. To bring home the guilt of accused, prosecution examined FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 3 of 19 three witnesses.
5. Vide separate statement recorded U/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused had admitted the genuineness copy of FIR, DD No. 5A, 7A & 9A all dated 01.10.2017, MLC No. 702/17 of Ashok Kumar Yadav prepared at Apollo Hospital on 01.10.2017 and copy of school (R. K. Government Sarvodaya Vidhyalaya, Madanpur Khadar, New Delhi) admission register of accused Rohit Mandal wherein name of accused is mentioned at serial no.
355.
6. With this Prosecution concluded its Evidence and the matter was listed for recording of Statement of accused U/s 313 Cr.PC.
In his statement U/s 313 CrPC, accused denied the prosecution case and pleaded innocence. However, the accused did not produce any independent witness or document in his defence. Accordingly, matter was listed for final arguments.
7. I have heard Ld. APP for the State and Ld. Legal Aid Counsel for accused as well as gone through case file very carefully. The argument of Ld. APP is that there is credible evidence to substantiate the allegations of the prosecution FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 4 of 19 against the accused. Ld. LAC, on the other hand, has argued that there are material inconsistencies in the case of the prosecution and the accused is entitled to benefit of doubt and thus, he be acquitted.
8. The defence of the accused is that a few days prior to the date of the alleged incident, a quarrel taken place between him and the complainant in the street while playing Gulli-Danda and complainant had falsely implicated him to settle scores.
Relevant Law:-
9. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, 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. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 5 of 19 on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal. Law relating to requirement of independent witness
10. Further Sec. 100 Clause 4 & 5 CrPC talk about requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 6 of 19 the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
Minor contradictions do not effect the credibility of the prosecution case.
11. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 7 of 19 Overall context of the case is to be seen.
12. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
13. Ingredients of Section 379 IPC.
(i) Property must be movable.
(ii) It should be taken out from the possession of another person.
(iii) Property should be taken without consent of the owner.
(iv) There must be removal of property in order to accomplish the taking of it.
(v) There should be dishonest intention to take the property.
14. The following ingredients will have to be proved by the prosecution to establish the offence u/s 411 IPC against the accused:
FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 8 of 19
(i) The accused received/retained some property.
(ii) that retained /received property was a stolen property.
(iii) Such reception or retaining was dishonest in the sense that the accused knew or had reasons to believe that property in their possession was stolen.
Discussion on merits:
15. PW-1 HC Harendra Kumar had investigated the present case. PW-2 Ashok Kumar Yadav is the victim & the complainant. PW-3 Jaideep Kumar Yadav is an independent witness of the prosecution. PW-3 is the neighbor of the victim and was residing on the ground floor while the victim resided on the first floor as on the date of the offence.
16. IO/PW-1 HC Harendra Kumar has deposed that on 01.10.2017 he was posted as HC at PS Sarita Vihar. On that day he was on emergency duty alongwith Ct. Vinay. Vide DD No. 5A, they received information regarding apprehension of thieves at house no. 3A/1, Ansh Mahal, Tractor wali Gali, Madanpur Khadar i.e., house of Balraj Choudhary. Subsequently, he alongwith Ct. Vinay went to the spot where complainant Ashok Kumar Yadav FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 9 of 19 met them and handed over the two boys (accused Rohit and one CCL) alongwith stolen articles i.e., Laptop, purse and mobile phones. The complainant informed about the alleged incident. PCR Van took the complainant to Apollo Hospital for medical treatment. The IO left constable Vinay at the spot while he himself went to Apollo Hospital for collecting MLC of the complainant Ashok Yadav. MLC of complainant was received vide DD NO.7A. Complainant was discharged from the hospital. Thereafter, IO and complainant returned to the spot. Complainant gave him a written complaint vide Ex.PW1/A. The IO prepared rukka vide memo Ex.PW1/B and also seized the case property i.e., Laptop, Mobile phone and Purse vide seizure memo Ex.PW1/C. IO also seized punch used by the accused to cause hurt to the victim and also prepared its rough sketch vide memos Ex.PW1/D & EX.PW1E respectively.
17. IO handed over the rukka to Constable Vinay for registration of the FIR and informed Police Station regarding juvenility of both accused upon information received by Mother's of both accused. Later on, accused Rohit was found to be an FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 10 of 19 adult.
18. IO further deposed that Ct. Vinay returned to the spot and handed him the copy of FIR and original rukka. Thereafter, IO interrogated both accused persons in the presence of JWO. Thereafter, he apprehended both Juvenile and conducted their personal search vide memos Ex.PW1/F, Ex.PW1/G, Ex.PW1/H & Ex.PW1/I. JWO/SI Nagender Nagar also prepared social back ground report vide report is Ex.PW1/J and Ex.PW1/K. Thereafter, accused were produced before JJB Member to sent them to Prayas Bal Sudhar Grah Delhi Gate. Thereafter, both Juvenile were got medical examined in LNJP Hospital. On 09.10.2017, he submitted the report regarding age of the juvenile before Principal Magistrate who declared Rohit as an adult. Subsequently, on 17.10.2017, accused Rohit was produced before this Court and was remanded to J/C. IO correctly identified the accused Rohit before the Court.
19. PW-1 was cross examined by Ld. Defence counsel. During cross examination, the IO admitted that he did not make any inquiries from the owner of the house in which the victim was FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 11 of 19 residing as tenant. He further admitted that he did not make inquiries from any other public person or residents of other 4-5 adjacent rooms other than PW-3 Jaipal. He also admitted that he did not seize the broken Jaali. He denied other contrary suggestions given by counsel for accused.
20. As far as the non seizure of the broken Jaali or not putting seal on the case property i.e., the recovered Punch are concerned, it is a negligent act on the part of the IO. However, the entire Prosecution case cannot be discarded merely owing to the want of skill or negligence on the part of the IO. The testimony of other witnesses, documents and other material, if found sufficient and credible can be relied upon. Thus, I proceed to evaluate the case further on merits.
21. Victim/PW-2 Sh. Ashok Kumar Yadav deposed that on 01.10.2017 went to sleep in his room at about 02:00 AM after completion of office work on his laptop. When, he was lying on the bed, he saw through the light of washroom that 2 boys had entered into the other room. He got up from his bed and asked the boys what they were doing. Suddenly the boys appeared in FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 12 of 19 front of him and one boy (Rohit Kumar) who was wearing a metallic punch, punched him. He grabbed that boy. In the court, the witness pointed out the accused Rohit Kumar as that boy who punched him.
22. Victim further deposed that the other boy (CCL) went to the balcony and picked one brick lying there and threw it towards him. The brick hit his leg and consequently his grip on the accused Rohit loosened and Rohit got himself freed from his arms. The victim ran towards the CCL and grabbed him. Accused Rohit came towards him and victim also held him. Then, Accused Rohit punched him at the back of his head. The scuffle continued for five minutes. The victim felt weak and blood was oozing from his head. He started shouting for help. In the meanwhile, the CCL managed to free himself and went to the Balcony and lifted another brick and threw it towards the victim. The brick hit the arm of the victim and consequently, his grip loosened further and accused Rohit managed to get himself freed again. In the meanwhile, public persons gathered outside the main gate of the victim house and assisted the victim in catching hold of accused FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 13 of 19 Rohit and the CCL. They immediately repossessed his belonging such as laptop, mobile phone, purse and headphone from the possession of the accused. Someone called on 100 number and at about 03:00 AM a PCR Van reached the spot. The victim presented the articles recovered from the accused before the police officials and handed over the accused to them and informed them about the entire incident. The PCR Van took the victim to Apollo Hospital for treatment and returned back to the spot thereafter at about 05:15 AM. The IO recorded his statement and prepared the documents Ex.PW1/C to Ex.PW1/I. PW-2 also identified eight photographs of the case property and his room as Ex.P1 (colly). The victim deposed that the accused and the CCL had entered into his room by breaking the jaali of window. However, he could not say the exact manner of breaking the jaali as he was sleeping inside the room.
23. PW-2 cross examined by Ld. Defence Counsel. During cross examination, victim remained firm and affirmed that he was alone in his room at 02:00 PM when he noticed two boys in the light of his washroom. He denied that suggestion that he has FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 14 of 19 falsely implicated the accused and the CCL due to a previous quarrel. The counsel for accused did not put any other contrary suggestion to this witness and largely the testimony of PW-2 Ashok Kumar Yadav remained unrebutted on all material aspects.
24. PW-3 Jaideep Kumar Yadav deposed that he resides on the ground floor while the victim resides on the first floor. On 01.10.2017, when he was sleeping in his house with his wife, he heard a shout at about 02:00 AM (midnight). He opened the window of his house and saw his neighbor loudly shouting. He saw that his neighbor had apprehended two thieves who were giving fist blows to him. He went out to help his neighbor and apprehended one of the accused. Other neighbors had also gathered by then. He called on number 100. One of the thief was carrying a 'knuckle' i.e., Punch and one 'pechkash' was also found in the possession of one of the accused. Witness correctly identified the accused Rohit as one of the accused. He corroborated the testimony of the victim about the stealing of his mobile phone. The same was from the pocket of short thief apart from 3-4 T-shirts, two phones i.e., one I-phone and one small FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 15 of 19 phone having keypad. Laptop was in the hand of accused which fell down and broke. The witness identified the case property Ex.P1 through four photographs.
25. PW-3 was cross examined by Ld. Defence counsel. During cross examination, the witness remained firm. The counsel for accused gave several contrary suggestions to the witness which were denied by the witness. The witness was confronted with his statement U/s 161 CrPC on the aspects which were not recorded therein.
26. In the present case, there is no material contradiction in the testimony of PW-3 vis-a-vis his statement U/s 161 CrPC by the IO during investigation. There are only certain aspect of deposition of the witness which do not find mention in his previous statement U/s 161 CrPC. The statements of witnesses U/s 161 CrPC are otherwise inadmissible in evidence. They can only be used for the limited purpose of contradicting or corroborating the testimonies of the relevant witnesses. In the present case, there are certain aspects of PW-3 Jaipal which have come in FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 16 of 19 his deposition but had not been recorded in his statement U/s 161 CrPC. The statement U/s 161 CrPC are recorded by the Investigating Officer. The witness only answers the questions which are put to him by the IO. It could very well be the case that the IO had not put the relevant questions to the witness and the examination of the witness by the IO was not comprehensive. However, mere non examination of the witness on certain aspects by the IO is not a ground to discredit the entire testimony of witness which otherwise inspires confidence.
27. The accused had claimed that the victim had falsely implicated them due to previous enmity. However, no evidence has been lead by the accused to prove his defence. Conclusion:
28. Through the testimony of PW-2, PW-3 & the Investigating Officer, the presence of the accused at the spot i.e., the house of the victim at the relevant date and time has been duly proved and there is nothing contrary on record. The accused have not been able to explain their presence at the house of the victim at FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 17 of 19 midnight on the date of incident. Victim/ PW-2 has been able to prove that the accused had entered his house at midnight by breaking the Jaali of the window. The mere fact that the witness PW-2 did not see them breaking the Jaali is not fatal to the prosecution as the same has been explained by the witness in his testimony. There was no other way for the accused to have entered the house of the victim at midnight. Accused has not claimed that he was invited by the victim at his home at midnight.
29. The injuries of the victim and his MLC have been duly proved. The Prosecution has proved through the testimony of PW-2 and PW-3 that the injuries were caused by the accused Rohit and the CCL by using Punch and throwing brick. The defence has been unable to rebut the same. The injuries were caused by the accused to the victim when he tried to restrain the accused and the CCL from taking away the stolen property. The testimony of the victim has remained unrebutted on all material aspects and has been duly corroborated by the testimony of PW- 3 Jai Pal. In view of the aforesaid discussion, it is held that prosecution has been able to establish the guilt of the FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 18 of 19 accused beyond pales of reasonable doubt. Accordingly, accused Rohit Kumar is hereby convicted for offence U/s. 341/380/458/411 IPC.
Now come up for arguments on the point of sentence. Copy of the Judgment be given to convict free of cost Digitally against receipt. signed by SHIVANI SHIVANI CHAUHAN CHAUHAN Date:
Announced in the open 2018.08.02
15:57:44
+0530
Court on 31.07.2018
(SHIVANI CHAUHAN)
METROPOLITAN MAGISTRATE-05
SOUTH EAST DISTRICT
SAKET COURTS NEW DELHI
FIR No. 305/17, PS-Sarita Vihar State Vs Rohit Kumar Page no. 19 of 19