Delhi District Court
State vs . Sanjay @ Parmod on 31 October, 2007
IN THE COURT OF SHRI POORAN CHAND
METROPOLITICAN MAGISTRATE:
ROHINI COURTS:DELHI
FIR No:504/01
P.S. Vikas Puri
U/s. 379/411 IPC
State vs. Sanjay @ Parmod
Sl. no of the case : 1290/2
Date of institution : 1.12.01.
Date of commission of : 27.10.01
offence
Name of Complainant : Sandeep Gupta
Name, parentage and : Sanjay @ Parmod S/o Jagdish
Parsad R/o C 129 Bhagwati Vihar
Uttam Nagar Delhi.
address of the accused
Offence complaint of : U/s 379/411 IPC
Plea of accused : Pleaded not guilty.
Final order : Convicted.
Date of reserve for orders: 25.10.07.
Date of order : 25.10.07.
:2:
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION 1 Accused was charged on the allegations that on 27.10.01 at about 10.30 AM at District Centre Vikas Puri Delhi in bus route no.761 he picked the pocket of Sandeep Gupta and committed theft of mobile phone bearing no.9811325637 and he was apprehended on the spot and stolen mobile phone recorded from his possession and committed an offence punishable U/s 379 IPC within my cognizance to which he pleads not guilty and claim trial.
2. In order to prove its case prosecution has examined four witnesses.
3. PW1 Sandeep Gupta/ complainant as well as eye witness of the incidence deposed that on 27.10.01 at about 10.30 AM he was going alongwith one boy who was his helper and they were going to Gurgaon in bus of route no.761. He was standing in the bus one boy who is accused ( correctly identified :3: by this witness) stood behind him.He was standing on front side near the front gate of bus. When he checked his pocket for purchasing the ticket by withdrawing the money he found that his mobile phone bearing no. 9811325637 was missing from his pocket of the shirt. The accused immediately got down from bus as he came to know about the missing of mobile and just board another bus. On the basis of suspicion he took search of accused from whom mobile was recovered. The said mobile was stolen from his pocket by accused in the bus. He correctly identified the case property i.e. mobile phone as Ex.P1, complaint as E.xPW1/A . He further deposed that accused was arrested in his presence by police vide memo Ex.PW1/B and recovery memo along with jamathalshi was prepared by police in his presence vide memo ex.Pw1/C &ex.Pw1/D respectively.
4. PW2 HC Anju Kumari - duty officer whoo proved on record the copy of FIR as Ex.PW2/A.
5. PW3 HC Rajbir deposed that on 27.10.01 one Sandeep :4: Gupta came in police station with accused. He correctly identified the accused. Sandeep Gupta stated that accused removed his mobile phone from his pocket of the shirt and got his stement recorded to IO/ SI Sehi Ram. IO seized the mobile phone vide memo Ex.PW1/C and arrested the accused vide memo Ex.PW1/B.
6. PW4 SI Sahi Ram- IO who got recorded the statement of complainant and prepared the rukka ex.PW4/A and prepared the site plan Ex.PW4/Band recorded the disclosure statement of accused vide memo exPW4/C and also conducted the personal search of accused vide memo ex.PW4/D. He prepared the challan and put before court for judicial verdict. No other PW examined in this case. PE closed on 20.9.07.
7. Thereafter accused has been examined U/s 313 read with Section 281 CrPC where all the incriminating evidence put to the accused to which he stated that it is correct that on :5: 27.10.01 at about 10.30 AM he was traveling in bus route no.761 but he denied of having committed the theft of mobile hone. He further stated that in fact some hot talk exchange with the complainant in the bus and he took him to police station and have been falsely implicated in this case. He claimed to be innocent. He did not lead any DE in his defence. He has taken the defence that helper of the complainant as stated by the complainant who was also present at the spot has not been examined by Prosecution despite his very much availability.
8 I have heard arguments advanced by Ld. APP for the State and counsel for the accused and perused the material on record carefully.
9 In the present case, the only star witness of recovery is PW1 Sandeep Gupta who is complainant and eye witness to the crime has apprehended the accused red handed at the spot with his stolen mobile phone . This witness has fully supported :6: the prosecution version . Even the testimony is not impeached during his cross examination.
10 It is pertinent to mention here that accused himself has admitted his presence in the bus in which complainant was traveling while he was examined U/s 313 read with Section 281 CrPC but denied the theft of mobile phone from the possession of complainant. Moreover, he has not shown any previous enenimity with the complainant to show that he is interested witness and he ha falsely implicate him in this case. Even accused is not known to complainant prior to this incidence . 11 Further the other objection taken by the accused that sole testimony of Pw1 Sandeep Gupta is not reliable as same contains various minor contradictions. 12 It is settled proposition of criminal law that prosecution has to prove its case on the judicial file beyond reasonable doubts and such doubts in the prosecution story entitle the accused to :7: acquittal. In a case reported as Rama Kant Rai V/s. Madan Rai 2003 (8) Scale 243 it has been ruled that a person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously, be expressed in terms of units to be mathematically enumerated as to how may of such units constitute proof beyond reasonable doubt. There is an :8: unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analyze, rest on a rbust common sense and, ultimately, on the trained intuition of judge.
While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed ligitimization of trivailities would make a mockery of administration of criminal justice. In Sucha Singh and Anr V/s State of Punjab J.T. 20-3 (6) S.C. 248 it has been ruled that:
exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and St. Vs. Sita Ram.sxw thereby destroy social defence, Justice cannot be made sterile on the plea that it is better to let hundred guilt escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See: Gurbachan Singh V/s. Satal Singh and others J.T. 1989 (4) S.C. 38; A.I.R. 1990 S.C. 209. Prosecution is not required to meet any and every hypothesis put forwarded by the accused. (See: State of U.P. V/s Ashok Kumar Srivastava :9: J.T.1992 (1) S.C. 340; AIR 1992 S.C. 840. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It is must grow of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether if the meticulous hypersensitivity for eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See: Inder Singh and Anr. Vs. State of (Delhi Admn.) AIR 1978 S.C. 1091). Vague hunches cannot take place of judicial evaluation. " A judge does not preside over a criminal trial, merely see that no innocent man ins punished. Judge also presides to see that a guilty man does not escape. Both are his public duties." Per Viscount Simon in Stirland V/s. Director of Public Prosecution, 1994 AC (P.C.) 315 quoted in State of U.P. V/s. Anil Singh JT. 1988 (3) SC 491; A.I. R 1988 S.C. 1998 . Doubts would be called reasonable if they are free from am zest for abstract speculation :10: . Law cannot afford any favourite other than truth".
In Visveswarn V/S. State 2003 Rajdhani Law Reporter 350 (SC) Hon'bleSupreme Court of India has ruled that in a criminal trial duty of the courts is not to let off criminals on petty discrepancies of minor contradictions. They must show responsibility. Ground realities must be appreciated. Accused be not allowed the benefit of defective investigation. Prosecution lapses cannot be allowed to become escape route of criminals. If there is sufficient proof of guilt by border probability, court must ignore technical objections.
13. As defence taken by the accused that he may not be convicted on the sole testimony of PW1 Sandeep Gupta. He further argued that as alleged by PW1 during his deposition that his servant was also present at spot with him has not been examined by prosecution despite his availability. :11: 14 It is not stated on behalf of the accused per sons that what prejudice has been caused to the accused persons by not examining the servant of complainant in this case. Section 134 of Evidence Act enshrines the maxim i.e. evidence has to be weighed and not counted. Therefore, as discussed above the testimony of PW1 Sandeep Gupta is sufficient to prove the prosecution case as it remains unimpeached and unchallenged even during cross examination.
15 In view of above said findings, I am of the view that technical objections raised on behalf of accused are of minor in nature and are not fatal to the prosecution case. Moreover, the testimony of PW1 Sandeep Gupta also took credence from the testimony of PW4 SI Sahi Ram / IO to the effect that PW1 Sandeep Gupta himself apprehended the accused red handed with stolen mobile phone and produced the accused alongwith stolen mobile in police station on relevant day. He seized the mobile phone and recorded the statement of PW1 Sandeep Arora in police station. . He got recorded the FIR and :12: prepared the site plan and arrested the accused. He correctly identified the accused and case property during his deposition. 16 Hence in view of my above findings, I am of the considered view that prosecution has succeeded to prove its case beyond shadow of all reasonable doubts. I accordingly convict the accused for the offence punishable U/s 379 IPC. Copy of judgment be given be given to convict free of costs. (Announced in open court on 25.10.07) (POORAN CHAND) METROPOLITAN MAGISTRATE NEW DELHI.
IN THE COURT OF SHRI POORAN CHAND METROPOLITICAN MAGISTRATE:
ROHINI COURTS:DELHI FIR No:504/01 P.S. Vikas Puri U/s. 379/411 IPC State vs. Sanjay @ Parmod ORDER ON POINT OF SENTENCE
1. I have heard arguments from both sides on point of sentence.
2. It is argued on behalf of the convict that he is facing trial since last six years and is aged about 28 years and is sole bread earner of his family consisting of his old age parents and wife who are fully dependent on him. No previous conviction is enforced against him. It is also submitted on his behalf that convict has remained in jail for more than two months and he has suffered a lot. Therefore, it is prayed that convict may be released on probation after furnishing bond for maintaining peace.:2:
3. On the other hand it is argued on behalf of the State that as cases of snatching and theft are increasing in city like Delhi day by day which is a cause to spread sense of insecurity in public at large. Therefore, now the time has come when accused persons for the offence of theft and snatching be dealt with strictly and it is prayed that maximum punishment be awarded to the convict as per law.
4. Heard.
5. It is correct that convict is facing trial since last more than six years and has spent more than two months in jail but no formal application to release the convict on probation has been moved as required by Section 4 of Probation of Offenders Act. Therefore, request of convict to release him on probation is declined. Even otherwise, keeping in view the facts and circumstances of case and the conduct of the convict as he is stolen the mobile phone from complainant in running bus and was apprehended on the spot, therefore, conduct of convict does not require to release him on probation.
6. In view of my above discussions, it will meet the ends of :3: justice if convict is sentence to imprisonment of period already undergone as he is remained in jail for more than two months and fine of Rs.1000/-. In default of payment of fine 15 days SI.
Hence order accordingly. Fine paid. File be consigned to RR. (Announced in open court on 31.10.07) (POORAN CHAND) METROPOLITAN MAGISTRATE NEW DELHI.
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