Delhi District Court
State vs . : Mayank Goda on 1 July, 2023
IN THE COURT OF MS. KRATIKA CHATURVEDI:
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Mayank Goda
FIR No. : 331/21
U/s : 381 IPC & 174 (A) IPC
P.S. : Dwarka South
Unique Case ID : DLSW020556582022
1. Date of commission of offence : 10.07.2021
2. Date of institution of the case : 22.09.2022
3. Name of the complainant : Sh. Yogender P Thakur
4. Name of accused, parentage &
address : Mayank Goda, S/o Late
Sh. Sunil Dutt Goda, R/o
H. No. 758, Sector 9,
Faridabad, Haryana.
5. Offence complained of : 381 IPC & 174 (A) IPC
6. Plea of the accused : Pleaded not guilty
7. Final order : Convicted
8. Date of order : 01.07.2023
FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 1 of 26
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Ms. Shashi Hooda, Ld. LAC for accused.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that in the intervening night of 09/10.07.2021 between 12 a.m. and 5.20 a.m., at Flat No. 2604, IIT Engineers Apartment, Plot No.12, Sector 10, Dwarka, New Delhi, the accused has committed theft of the wallet containing various bank debit cards and mobile phone of the complainant Sh. Yogender Thakur while he was working in the said house and withdrawal of money from the debit cards of the complainant. It is further stated that on 27.07.2022, accused was declared a proclaimed offender by the order of this court within the jurisdiction of Dwarka Court, before this court. As such, it is alleged that the accused, Mayank Goda has committed the offence punishable under section 381 IPC and 174A, for which FIR no. 331/2021 was registered at the Police Station, Dwarka South.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigation Officer (hereinafter referred to as the "IO") undertook investigation and on culmination of the same, the FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 2 of 26 chargesheet was filed against the aforementioned accused person. After taking cognizance of the offence, the production warrants were issued against the accused, Mayank Goda vide order dated 22.09.2022.
3. On appearance of the accused, a copy of chargesheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). After finding a prima facie case against the accused person, charge for offence under section 381 IPC and 174A of the IPC was framed against the accused person on 17.10.2022. The accused pleaded not guilty to the aforesaid charge and claimed trial.
PROSECUTION EVIDENCE:
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Sh. Yogender P. Thakur PW-2 Sh. Harish Chauhan, Brnach Manager, HDFC Bank PW-3 ASI Surender Singh PW-4 SI Kuldeep PW-5 HC Balram PW-6 Sh. Vineet Kapoor, Chief Manager, Bank of Baroda PW-7 Sh. Shubhodeep Bhattacharya, Dy. Branch Manager, ICICI Bank PW-8 HC Jagdish PW-9 ASI Murli DOCUMENTARY EVIDENCE Ex. PW-1/A Complaint FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 3 of 26 Ex. PW-1/B Site Plan Ex. PW-2/A Covering letter Ex. PW-2/B Certified copy of documents from HDFC (colly) Bank Ex. PW-2/C Certificate u/sec 65B of IEA Ex. PW-2/D Certificate u/sec 2A of Banker's Book Evidence Act Ex. PX1 Departure entry of PW-3 & PW-4 Ex. PW-3/A Arrest memo in kalandra Ex. PW-3/B Personal search memo in kalandra Ex. PX2 Arrival entry of PW-3 & PW-4 Ex. PW-5/A Arrest memo Ex. PW-5/B Disclosure statement of the accused Ex. PW-6/A Statement of account of the complainant of (colly) Bank of Baroda Bank Ex. PW-6/B Certificate u/sec 65B of IEA Ex. PW-6/C Certificate u/sec 2A of Banker's Book Evidence Act Ex. PW-7/A Statement of account of the complainant of (colly) ICICI Bank Ex. PW-7/B Certificate u/sec 65B of IEA Ex. PW-7/C Certificate u/sec 2A of Banker's Book Evidence Act Ex. PW-8/A Application for interrogation and formal arrest Ex. PW-9/A Rukka Ex. PW-9/B CCTV footage of the society Ex. PW-9/C Seizure memo of the CCTV footage Ex. PW-9/D Certified copy of bank statements and KYC alongwith certificate u/sec 65B of IEA ADMITTED DOCUMENTS Ex. A1 FIR no. 331/2021 alongwith certificate u/sec 65B of IEA Ex. A2 DD No. 109A Ex. A3 & DD No. 68A Ex. PW-3/C Ex. A4 DD No. 4
5. PW-1, Sh. Yogender P Thakur has stated that his son was FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 4 of 26 suffering from some mental ailment i.e., schizophrenia since 2005. Since his son needed the complete rest and care at the home that is why he arranged a male nurse for him namely Mayank Goda. The said accused was arranged from Curo Doc Health Care Ltd. Dwarka, New Delhi, and he worked for two weeks at his house. Thereafter, his son went to the hospital at Gurgaon on 04.11.2020 and he was there for a long time. Thereafter, accused started calling regarding the whereabout of his son and that when the complainant would return at his home so that accused could come again for work. Thereafter, the accused came on 09.07.2021 and signed the security society register and he made an entry for his house. He went to the market along with the accused to withdraw money from his HDFC bank and he left the accused outside the ATM machine and went inside to withdraw money. The security guard was present at ATM machine and he helped him to navigate through the process of withdrawing the money as he was suffering from cataract in his both eyes and he could not see anything clearly. Thereafter, the security guard told him to put his pin code number on the machine. While he was putting his pin code on the machine, the security guard stepped aside, and the accused Mayank Goda entered the room from his back and saw him putting the pin code in the machine. Thereafter, he came along with him to his house, had food in the afternoon and night. Suddenly, in the night, when he got up FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 5 of 26 at around 2.00 AM, he saw the accused doing something in his mobile phone on which he asked the accused that why he is not sleeping, on which the accused replied that he is doing some work and that he is watching movie in his mobile phone and he would sleep in a while. Thereafter, he slept in his room on the floor. Next day, in the morning at around 7.00 AM, when he got up and he noticed that the accused was not there at his home. He also checked his mobile phone and his wallet (his wallet contained Debit cards of three bank i.e., HDFC bank, ICICI bank and Bank of Baroda and it also contained, ID card i.e., Aadhar card and metro travel card and Rs.2,800/- in cash + some change of 70-80/-), both things were missing. At around 10.00 AM, he went to the HDFC bank to block his card, however, by that time, the money was already withdrawn by him. Moreover, the accused did multiple transactions from the cards. Thereafter, he went to the ICICI bank to block his card, however, from that card also, money was already withdrawn by him. The distance of Bank of Baroda was away from his residence because of that he could not go there and went to the Police station for recording of his complaint. He has correctly identified the accused in the court. When the accused fled away with wallet and mobile phone, he informed the same to the IIT Security guard Sh. R B Singh to do his verification, however, it was not done on that day. His verification details were with the agency i.e. Curo Doc Health Care FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 6 of 26 Ltd. Sector 6, Dwarka, New Delhi. While the accused had left the house, he did not take his bag and his clothes and shoes with him and left his belonging at his house only. The police came at his residence and took the CCTV footage. When the accused got firstly engaged by his son in law through Curo Doc Health care ltd and at that time he told the accused that he should first talk to his son in law and son in law used to pay a salary of Rs.12,000/- plus food, shelter and stay, however, he was arranged by Curo Doc Health Care Ltd at that time Rs.20,000/- was given by his son in law to the Curo Doc Health Care Ltd to be given to the accused. That was the reason, the accused approached them through his son-in-law that he would be directly engaged with them in the monthly salary of Rs.12,000/-. Since he came directly that was the reason, he could not be verified properly by them. Had it been through the agency i.e., Curo Doc Health Care Ltd, he would have been properly verified about his antecedents. The site plan was prepared at his instance. In his cross- examination, he stated that he had gone to the HDFC bank ATM to withdraw money in noon, however, he does not remember the exact time. He does not remember how much cash was withdrawn from the ATM. No entries of leaving or entering the society was made by the security guard for the residents of the society. Entries of outsiders were made in the diary maintained by the security guard of the society. He was using android mobile phone make lava FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 7 of 26 on the day of incident. His mobile phone was having lock system of pin code (numbers). He got the ATM blocked through the help of customer care. The bank officials had asked him for the copy of FIR and he handed over the copy of FIR to the bank. He went to the PS at about 1.30 PM on 10.07.2021. The ICICI bank and HDFC bank is at the distance of 100 yards from his society. The bank of Baroda is in Sector 11 which is away from my house i.e., more than 1 Km. He asked the police to lift the belonging of the accused from his house and they told him they would lift it but till date same has not been lifted. The accused ran away in the night i.e., after 3.30 AM. He had visited the PS two or three times and on the third occasion his FIR was registered. Police officials had not visited his house on the day when he visited the PS but they came at his house later on. He does not remember the exact date of the same. Police officials visited his house only once. Around Rs.20,000/- was withdrawn from ICICI Bank. The accused was having a mobile phone but he does not know the make of it. His mobile phone was not a touch screen phone.
6. PW-2, Sh. Harish Chauhan, Branch Operation Manager, HDFC Bank, Sector 23, Dwarka, New Delhi, has deposed that he has been working as a Branch Operation Manager at HDFC Bank since 2019. He had provided certified copy of account opening form and KYC documents of the FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 8 of 26 account no.09241000020196 in the name of Mr. Yogender P. Thakur, certified copy of bank statement from 09.03.2021 to 13.07.2021, CCTV footage for 10.07.2021 of HDFC Bank ATM, Sector 23, Dwarka Branch, certificate u/s 65B IEA and letter of confirmation on debit card detail. He had brought the certificate u/s 65B IEA regarding the footage of the ATM room provided by the bank to the IO. He has also brought certificate u/s 2A of the Banker's Books Evidence Act regarding the documents and forms provided by the bank to the IO. The pen-drive is also run on the system of dated 10.07.2021. Same is found in working condition. At around 06:08 pm, one boy wearing mask can be seen withdrawing cash from the HDFC Bank ATM. It is also seen in the CCTV footage that the said person was withdrawing the money multiple times with different ATM Cards. Witness submits that the HDFC Bank ATM of Yogender P. Thakur was used on 10.07.2021 multiple times on the HDFC Bank ATM and on the ATM Machine of other banks. In his cross- examination, he stated that no application regarding freezing of the account was given by the complainant in their branch as per his knowledge.
7. PW- 3, ASI Surender Singh has stated that on 03.08.2022 he along with SI Kuldeep left the above-mentioned cell for collecting information of POs. They left the cell after making the departure entry No. 4 and reached at Dwarka FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 9 of 26 for collecting of information. One secret informer met them and told them that one person in the name of Mayank who was wanted in the present FIR was residing at Sector 9, Faridabad and if raid was conducted, they could apprehend him. He shared the information with the Inspector PO and Jail Bail Cell Dwarka and on his instruction they left for Faridabad along with informer. They reached at the address provided by the informer i.e., Sector 9, Faridabad at about 5.25 PM. The address of the house was 758, Sector 9, Faridabad. He rang the bell of the said house and one old lady opened the door. He asked her about Mayank and she told him that Mayank was residing in her house only as a servant. She called Mayank who was present at the said house. He interrogated him and thereafter, he arrested him and conducted his personal search. Accused Mayank disclosed his involvement in the present case. They returned to the PS Dwarka South and made the arrival entry vide DD No.68A. Thereafter, the kalandra (complaint) was prepared against the accused vide DD No. 68 A and he produced the accused before the Hon'ble Court and he was arrested by the IO HC Jagdish. The witness has correctly identified the accused present in the court today. In his cross examination, he stated that they had gone to Faridabad in Celerio car which was brought by the SI Kuldeep and he was driving the said vehicle. Only one old lady was found at the above- mentioned flat. Accused Mayank was present at the house FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 10 of 26 along with said old lady. Lady was not made the witness of the arrest of the accused. He had not recorded the statement of said lady to the fact that accused was working as a servant at her residence. He informed to the IO about the arrest of accused physically in PS Dwarka South but he does not remember the time when he was giving the information. They had not claimed fuel charges from the departure. He does not remember the date of the order vide which the accused was declared PO in the present case.
8. PW-4 SI Kuldeep has stated that on 03.08.2022, he along with ASI Surender Singh left the above-mentioned cell for collecting information of POs. They left the cell after making the departure entry No. 4 and reached at Dwarka for collecting of information. One secret informer met them and told them that one person in the name of Mayank who was wanted in the present FIR was residing at Sector 9, Faridabad and if raid was conducted he could be apprehended. ASI Surender Singh shared the information with the Inspector PO and Jail Bail Cell Dwarka and on his instruction they left for Faridabad along with informer in his celario car. They reached at the address provided by the informer i.e., Sector 9, Faridabad at about 5.25 PM. The address of house was 758, Sector 9, Faridabad. ASI Surender Singh rang the bell of the said house and one old lady open the door. ASI Surender Singh asked her about Mayank and she told him that Mayank was residing in her FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 11 of 26 house only as a servant. She called Mayank who was present at the said house. ASI Surender Singh interrogated him and thereafter, ASI Surender Singh arrested him and conducted his personal search. Accused Mayank disclosed his involvement in the present case. They returned to the PS Dwarka South and made the arrival entry vide DD No.68A. Thereafter, ASI Surender Singh prepared the kalandra (complaint) against the accused vide DD No. 68 A and thereafter, ASI Surender Singh produced the accused before the Hon'ble Court and he was arrested by the IO HC Jagdish. Accused present in the court today and correctly identified by the witness. In his cross- examination, he stated that they had gone to Faridabad in his celerio car. He was driving the said vehicle. One old lady was found at the said address. He did not record the statement of said old lady. He had not claimed fuel charges for departure from the department.
9. PW 5 HC Balram has deposed that on 04.08.2022, he was posted as HC at PS Dwarka South. On that day, he joined the investigation in the present case and reached at Dwarka Court alongwith HC Jagdish and there ASI Surender Singh met them. HC Jagdish received the photocopy documents related to the arrest of the accused Mayank. An application was moved before the Hon'ble court to interrogate the accused and same was granted by the Hon'ble Court. IO HC Jagdish interrogated the accused FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 12 of 26 and formally arrested the accused. IO HC Jagdish also recorded the disclosure statement of the accused. He has correctly identified the accused. In his cross-examination, he stated that they visited the court at about 3.25 PM.
10.PW 6 Mr. Vineet Kapoor, Chief Manager, Bank of Baroda, Sector 12, Dwarka, New Delhi, has brought the statement of account holder Mr. Yogender Pratap Thakur for the period of 01.04.2021 to 01.05.2023 alongwith the certificate u/s 65 B of IEA qua statement and certificate u/s 2 A of Banker's Book of Evidence Act 1891.
11.PW7 Mr. Shubhodeep Bhattacharya, Dy Branch Manager, ICICI Bank, Sector 6, Dwarka, New Delhi has brought the statement of account holder Mr. Yogender Pratap Thakur who has his account with their bank with account no. 0547010004143 for a period of 01.04.2018 to till date. He has also brought the certificate u/s 65 B of IEA qua statement and certificate u/s 2 A of Banker's Book of Evidence Act 1891. In his cross-examination, he stated that the account holder i.e., the complainant had never given them any written application at their branch at any point of time till date to freeze the above-mentioned account.
12.PW 8 HC Jagdish has stated that the investigation of the present case was marked to him in the year 2022. He was FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 13 of 26 informed by the DO regarding the arrest of accused by the official of Jail Bail and PO Cell. On 04.08.2022, he moved an application for formal arrest and interrogation of the accused before the Hon'ble Court. The permission was granted and he interrogated the accused and recorded his disclosure statement. He formally arrested the accused. He has correctly identified the accused. In his cross- examination, he stated that the accused was produced in the court at around 2.30 PM and he formally arrested him at around 3.30 PM.
13.PW9 ASI Murli Singh has deposed that on 10.07.2021, he was posted as ASI at PS Dwarka South. On that day, during his day emergency duty, he received a PCR call vide DD No. 53 A regarding the theft inside a house no. 2608, Plot no. 12, Sector 10, Dwarka, New Delhi. He went to the spot where the complainant Mr. Y P Thakur met him who gave him a written complaint. He prepared rukka over the same on 13.07.2021 after which the present FIR got registered. The investigation was marked to him. He made efforts to trace out the accused Mayank Goda as the complaint was by the name of accused. He obtained the CCTV footage of the society premises in a pen drive and also the photocopy of entries maintained in the register by the society. He put the mobile number of accused on CDR and also obtained the CCTV footage of HDFC bank ATM from where the money was allegedly withdrawn by the FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 14 of 26 accused using ATM card of complainant and he seized it. He also obtained the certified copies of bank statements and KYC alongwith certificate u/s 65 B of IEA vide notice u/s 91 Cr PC. When the accused was not located after making several efforts, he obtained the NBWs against him from the court. Accused was not found after which he got proceedings initiated against him u/s 82 Cr PC. He had also obtained KYC details and bank statements of complainant from ICICI Bank. On 27.07.2022, the accused was declared PO. Thereafter, he got transferred and the present case file was handed over to the MHC(R) for further investigation. In his cross-examination, he stated that he does not remember at what time he reached at the residence of complainant. He also does not remember when he received a PCR call on the said date. He does not remember the correct address of the accused Mayank Goda. He does not remember the name of the agency from which accused Mayank Goda was hired by the complainant. He visited the abovesaid agency to know the whereabouts of the accused and collected the employment documents of accused Mayank Goda but the second IO did not file the same in chargesheet. He prepared the site plan at the spot.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
14.Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 15 of 26 circumstances appearing in evidence against him, the statement of the accused was recorded on 02.06.2023 without oath under section 313 CrPC, wherein he stated that he is innocent and has falsely been implicated in the present case. Pursuant thereto, he stated that he does not wish to lead defence evidence.
ARGUMENTS
15. I have heard the Ld. APP for the State and Ld. LAC for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
16. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
17. Per contra, the Ld. LAC for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. LAC further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 16 of 26 be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
18.In the instant case, the accused, Mayank Goda has been charged for the offence under section 381 and section 174A of IPC. Section 381 IPC prescribes punishment for theft by a clerk/servant of property in the posses- sion of the master. The theft is defined under Section 378 IPC and the essential ingredients to constitute an offence under Section 380 IPC are as follows-
(i) Intention to take dishonestly
(ii)The property shall be movable property.
(iii) The property shall be taken out from the possession of any person without his consent.
(iv) There should be some moving of the said property to such taking.
(v) The theft should have been committed by a clerk/ servant of any property in possession of his master/ employer.
19. While, in order to establish the offence under Section 174A IPC which pertains to non-appearance in pur- suance of a proclamation issued under Section 82 of CrPC. Failure to appear constitutes the offence. Under Section 82 of the CrPC, whenever the Court concludes that a person is absconded or concealed himself, despite is- suance of warrants, a written proclamation is issued to re- quire him to appear before the Court. To ensure that publi- cation of the proclamation, certain requirements stipulated in the provision are to be met. The proclamation is to be publicly read in some conspicuous place of the town, vil-
FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 17 of 26lage, it has to be affixed at the house or homestead of the person and a copy of the same is to be affixed in the Court house. A clear period of 30 days from the date of publica- tion is to be given to the accused to appear before the court.
20. To hold a person guilty of offence punishable under sec- tion 174A of the Indian Penal Code it is sine qua non that he fails to appear at the specified place and the specified time as required by a proclamation published under sub- section (1) of section 82 of Cr.P.C. Subsection (1) of sec- tion 82 of Cr.P.C. reads as follows:
"(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation."
21.Further subsection (2) of section 82 of Cr.P.C., which pre- scribes the manner in which the proclamation under sub- section (1) of section 82 of Cr.P.C. is to be published, reads as follows:
"(2) The proclamation shall be published as follows:
(i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) A copy thereof shall be affixed to some conspicuous part of the Court house;FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 18 of 26
(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulat-
ing in the place in which such person ordinarily resides."
22. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above le- gal standards.
APPRECIATION OF EVIDENCE:
23. In order to prove the case of the prosecution for commit- ting the theft of debit cards, mobile phone and wallet by the accused Mayank Goda who was a servant of the com- plainant from his house punishable under section 381 of the IPC, all the ingredients of the said offence have to be proved. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scru- tinize the evidence more particularly keeping in view the de- ficiencies, drawbacks and infirmities pointed out in the evi- dence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 19 of 26 matters not touching the core of the case, hyper technical ap- proach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
24. In the case at hand, the star witnesses of the prosecution is PW-1, Sh. Yogender P Thakur, being the complainant in the present matter. He has deposed that the accused on 09.07.2021, saw the pin code on the machine when he was withdrawing the money on the said date. Further, on 10.07.2021 when he got up in the morning, he noticed that the accused was not at his house and his mobile phone and wallet which contained the debit cards of the three banks i.e., HDFC bank, ICICI Bank and Bank of Baroda were missing and that by the time he went to block the said cards, the accused had already done multiple transactions from the cards. The witness had given a detailed and lucid account of the incident. His testimony has remained intact on all the material points. Accused has not been able to im- peach the credibility of this witnesses or shake the veracity of his statement. His testimony is completely reliable and trustworthy. The court does not see any reason to disbe- lieve the testimony of PW-1. Further, the contention of the Ld. LAC for the accused that the complainant has falsely implicated the accused in the present case as he forcefully FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 20 of 26 wanted to have physical relations with the accused to which the accused has told the complainant that he will file a police complaint, however, it is merely an assertion and has not been supported by any corroborative piece of evi- dence.
25. It is also imperative to note that the testimony of PW-1 is further corroborated by the CCTV footage dated 10.07.2021 of HDFC Bank ATM, Sector 23, Dwarka alongwith the certificate under section 65B of the IEA and Section 2A of Banker's Books Evidence Act produced by PW-2, Sh.Harish Chauhan, where the accused could be seen withdrawing cash from the HDFC bank ATM multi- ple times and the same was also used on the ATM ma- chines of other banks. Further, the contention of the Ld. LAC for the accused that the complainant had not given any application to the concerned banks for freezing the ac- count is not tenable as the complainant himself has stated that he had applied for blocking of the ATM cards which is different from the freeing of the accounts. It is immaterial whether he had applied for freezing of the accounts in question if he has applied for the blocking of the said ATM cards which has already come in the testimony of PW-1.
26. PW-9, ASI Murli Singh in his testimony has deposed that on 10.07.2021, he received a PCR call vide DD No. 53A regarding the theft at the house of the complainant, on which he went to the spot where the complainant gave a FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 21 of 26 complaint on which he prepared the rukka and after which the present FIR was registered. He has also obtained the copy of the CCTV footage of HDFC bank ATM from where the money was allegedly withdrawn by the accused using the ATM card of the complainant. He further stated that he made efforts to trace out the accused however when he was not traceable, he was declared a PO vide order dated 27.07.2022. There was no improbable fact, which accused could cull out from his testimony. Therefore, his testimony is found to be trustworthy and reliable.
27. The contention of the Ld. LAC for the accused that no other independent witness has joined the investigation and thus the testimony of the prosecution witnesses cannot be relied upon is not acceptable as it is a well settled law which has again been reiterated by the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of Uttar Pradesh Criminal Appeal No. 502 of 2015 that non-exam- ination of independent witnesses is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable. Further, the testi- monies of the witnesses are indeed impeccable and corrob- orative of each other. The complainant (PW-1) had no mo- tive to falsely implicate the accused. Therefore, in view of aforesaid appreciation of evidence and factual position of the case, PW-1 had stood the acid test of cross examina- tion, was believable just like that of a trustworthy and creditworthy witness. Also, in Namdeo vs State of Maha-
FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 22 of 26rashtra Crl. Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India observed that even the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony. The court does not see any reason for the complainant and to falsely implicate the ac- cused.
28. The Ld. LAC for the accused has also contended that no recovery has been made from the possession of the ac- cused and that the accused has been falsely implicated in the present case. It is further contended that the IO has even failed to obtain the address of the accused from the agency through which he had been employed as a servant, however the same has been denied by the IO in his testi- mony. It is argued that the IO has not conducted the inves- tigation properly and has failed to even preserve the CCTV footage of 09.07.2021 where the complainant has alleged that the accused saw the ATM pin from behind when he was withdrawing the money on the said date with the aid of security guard. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investiga- tion has observed as under, FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 23 of 26 "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecu- tion evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what ex- tent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If pri- macy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice ad- ministration would be eroded."
29. It has further been argued that there are material contra- dictions in the testimonies of the prosecution witnesses and that the benefit of doubt be given to the accused person. However, the same in the opinion of this court is barely material if viewed in the backdrop of the otherwise strong and coherent case of the prosecution. It has been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material dis- crepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal dis- crepancies do not corrode the credibility of a party's case, material discrepancies do so."
FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 24 of 2630.With respect to the offence qua section 174A of the IPC, the prosecution has examined PW-3 ASI Surender Singh and PW-4 SI Kuldeep who have deposed that on the infor- mation of a secret informer, they reached at the address at Faridabad where they met the accused Mayank who was working as a servant and accordingly arrested him. Fur- ther, the statement of the process server who is the IO in the instant case is also on record which shows that the ac- cused had sold his house and had shifted to an unknown place. The Ld. LAC for the accused has contended that no statement of the lady was recorded in whose presence the accused was arrested, however that is not the ground to give benefit to the accused when the prosecution has proved its case otherwise.
31.Therefore, the lapses which have been pointed out by the Ld. LAC for the accused does not materially affect the tes- timony of the prosecution witnesses and the same leads to the conclusion that the accused was the one who had com- mitted the offence.
CONCLUSION
32.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused person beyond rea- sonable doubt. In view of the above discussion, the court is of the considered opinion that the prosecution has success- fully proved its case beyond all reasonable doubts against FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 25 of 26 the accused Mayank Goda that he had committed the theft at the house of the complainant and has deliberately avoided the proceedings of the case. Hence, the accused Mayank Goda is held guilty of the offence punishable under Section 381/174A IPC.
Announced in the open court on 01.07.2023 in the presence of the convict.
(Kratika Chaturvedi) Metropolitan Magistrate-04, Dwarka, Delhi/01.07.2023 Note:- This judgment contains 26 pages and each page has been signed by me.
FIR No. 331/21, P.S. Dwarka South, State Vs Mayank Goda Page 26 of 26