Delhi District Court
In Re: State vs Mukesh Kumar on 2 January, 2016
IN THE COURT OF GAURAV RAO: ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, SOUTH DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS MUKESH KUMAR
F.I.R. No: 428/15
U/s 392/411 IPC
P.S. Saket
Date of Institution of Case : 04.06.2015
Judgment Reserved for : 02.01.2016
Date of Judgment : 02.01.2016
JUDGMENT:
(a) The serial no. of the case : 104/2/15
(b) The date of commission of offence : 07.04.2015
(c) The name of complainant : Sh. Arvind Singh
S/o Sh. Raghuveer Singh
R/o H.No. F347/1, 2nd
Floor, Opposite PNB Bank,
Lado Sarai, New Delhi.
(d) The name, parentage, of accused : Mukesh Kumar
S/o Sh. Chhote Lal
R/o H.No. 2075, Gali No.
10, L1st, Near Sangam
Vihar, New Delhi.
FIR No. 428/15 State Vs. Mukesh Kumar 1/34
Permanent Address : As above
(e) The offence complained of : U/s 392/411 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted U/s 392 IPC
(h) The date of such order : 02.01.2016
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 07.04.2015 at about 8:15 AM, upon moving bus route no. 34 (plying on M.B. Road, Lado Sarai to Badarpur) within jurisdiction of PS Saket, accused committed theft of the complainant's purse by removing the same from his pocket without his consent and caused fear of instant hurt to complainant Arvind Singh by threatening to inflict blade injuries upon him and his friend namely Jitender with the intent to carry away the stolen purse and later on the alleged stolen stolen purse containing DL and cash Rs. 100/ belonging to complainant were recovered from possession of accused who was apprehended at the spot and thus thereby the accused committed offence punishable U/s 392/411 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 orders dated FIR No. 428/15 State Vs. Mukesh Kumar 2/34 18.06.2015 charge U/s 392/411 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined four witnesses, thereafter the PE in the matter was closed and the statement of accused U/s 313 Cr.P.C was recorded on 18.12.2015 wherein he claimed himself to be innocent and having been falsely implicated in the case. The accused opted not to lead any evidence in his defence.
Brief scrutiny of the evidence recorded in the matter is as under.
4. PW01 Sh. Arvind Singh deposed that on 07.04.2015, he alongwith his friend namely Jitender Singh took bus route no. 34 from Lado Sarai at around 8:15 AM and were going towards Saket Metro Station in the said bus. He deposed that when they reached a little ahead of Lado Sarai, one person was standing near him took out his purse from back pocket of his pant and some passenger had seen accused while he was taking out his (complainant) purse. He deposed that they apprehended him. He deposed that the said person took out blade and threatened him and his friend by stating that "Agar Najdeek Aaya Toh Mar Dunga". He deposed that passengers caught hold of the accused. He further deposed that his friend Jitender Singh called to police on 100 number. He FIR No. 428/15 State Vs. Mukesh Kumar 3/34 deposed that he alongwith his friend and accused alighted from the said bus at Saket Metro Station. He deposed that police officials came there and thereafter, they took them to PS Saket. He deposed that he narrated the above said facts to police officials who recorded his statement which is Ex. PW 1/A. He deposed that he got recovered the said purse from the said person inside the said bus and he produced the said purse containing Rs. 100/ cash, ID proof i.e. DL to IO who seized the same vide seizure memo which is Ex. PW 1/B. He deposed that after interrogation, IO arrested and carried out personal search of accused vide memo which are Ex. PW 1/C and Ex. PW 1/D and later on, he got released the said purse containing Rs. 100/ cash, ID proof i.e. DL on superdari. He deposed that accused Mukesh is the same person who had taken out his purse and threatened him and his friend.
This witness correctly identified the said purse and DL in court as Ex. P1 and Ex. P2 respectively. He also identified the photographs of purse and DL as Ex. P3 (Colly).
5. During his crossexamination by ld. LAC Sh. Kishore Kumar, he stated that his statement was recorded at PS Saket. He stated that his friend Jitender accompanied him at that time and his statement was also recorded by IO at that time at PS Saket. He stated that he told the police that the accused threatened him by showing a blade and by stating that "Agar Najdeek Aaya Toh Mar Dunga"
FIR No. 428/15 State Vs. Mukesh Kumar 4/34 and confronted with the statement Ex. PW 1/A wherein it is not so recorded. He stated that the bus in question was DTC green line bus, but he did not tell the registration number of the said bus to police. He stated that he alongwith his friend Jitender had boarded the bus together for reaching Saket Metro Station. He stated that they both are engaged as Tourist Guide and were working together. He stated that some passengers were traveling in the bus while standing as all seats were occupied. He stated that he and his friend Jitender were traveling while standing in the bus. He admitted that the bus was not heavily crowded, but around 1015 passengers were standing. He stated that they both were standing together near the rear door (conductor seat) and the conductor was seated in his place. He stated that other passengers were standing nearby as they were near the conductor's seat. He admitted that some passengers had seen accused taking out his purse which he had told to the police. (He was confronted with his complaint Ex. PW 1/A wherein it was not so recorded). He stated that his purse was stolen in between Lado Sarai village and Saket Metro Station, however, he was not aware of the exact spot. He stated that he was informed about theft of his purse by copassengers in between Lado Sarai and Saket Metro Station. He stated that the distance between Lado Sarai and Saket Metro Station might be around 1.5 KM. He admitted that a traffic signal is situated in between Lado Sarai and Saket Metro Station. He stated that he was wearing Jeans pant on the day of incident. He stated that he raised alarm FIR No. 428/15 State Vs. Mukesh Kumar 5/34 upon knowledge of his purse being stolen, but the bus was not stopped in between Lado Sarai and Saket Metro Station. He stated that they told to the driver to stop the said bus at Saket Metro Station because they had called to police on 100 number and stated that they alighted from the said bus at Saket Metro Station. He admitted that he told to the police officials that passengers assaulted the accused Mukesh inside the said bus. He stated that at around 1520 persons had apprehended accused Mukesh inside the said bus and they had assaulted accused Mukesh for 510 minutes. He stated that it took around 1015 minutes to reach Saket Metro Station from Lado Sarai. He stated that the accused had showed the said blade and tried to escape from the said bus before apprehension by passengers. He stated that around 1015 passengers alighted from the said bus at Saket Metro Station with them and all passengers had held and alighted accused Mukesh from bus. He stated that the said bus went away after alighting them at Saket Metro Station. He stated that police reached at Saket Metro Station within 23 minutes after their deboarding from the said bus. He again stated that PCR van was already parked there and they called the police official from there. He voluntarily stated that his friend called to police on 100 number inside the bus. He stated that he got recovered the said purse from right side pocket of pant of accused in the presence of said passengers. He stated that he alongwith his friend and 23 passengers had caught hold of accused at the time when police officials arrived at Saket Metro Station. He FIR No. 428/15 State Vs. Mukesh Kumar 6/34 stated that the said 23 passengers left the spot after inquiry by police official. He stated that PCR van took them alongwith accused to PS Saket. He stated that they did not come at Saket Metro Station from PS Saket with police officials. He stated that he handed over the purse to police official at PS Saket in the presence of his friend Jitender. He stated that he gave written complaint to the police official. He again stated that police official recorded his statement as narrated by him. He stated that they remained in PS Saket for around 1 ½ hours. He stated that police official prepared the site plan at his instance as narrated by him at PS Saket. He stated that he did not sign upon any blank paper. He stated that he did not tell the serial number of currency note to the police official. He voluntarily stated that police official took the photograph of the said currency note of Rs. 100 at the time of releasing it on superdari. He stated that IO did not record his supplementary statement. He stated that passengers advised his friend to call to police on 100 number. He stated that he was having his phone on that day.
He denied the suggestion that the accused was falsely implicated in this case or that accused never took out his purse from his back pocket or that the accused had not threatened him by showing the said blade by stating that "Agar Najdeek Aaya Toh Mar Dunga". He denied the suggestion that he was deposing falsely.
FIR No. 428/15 State Vs. Mukesh Kumar 7/34
6. PW02 Sh. Jitender Singh deposed that on 07.04.2015 at around 8:15 AM, he alongwith his friend namely Arvind Singh boarded a bus from Lado Sarai and they were traveling towards Saket Metro Station in the said bus. He deposed that within 1012 minutes when they reached in between Saket Metro Station from Lado Sarai, one passenger gave signal to his friend Arvind that the accused Mukesh (correctly identified in court) took out his purse from his pocket. He deposed that he alongwith his friend and public persons apprehended the accused inside the said bus. He deposed that they searched the accused and found the said purse inside his left pocket of his pant. He deposed that the accused threatened them to give injury with the help of a blade. He deposed that thereafter, the public persons / passengers started to beat accused and shouted to call the police. He deposed that thereafter, he called to police on 100 number. He deposed that he alongwith his friend namely Arvind and accused alighted from the said bus at bus stand, near Saket Metro Station and PCR van came there. He deposed that they narrated the said incident to PCR official. He deposed that his friend told him that his purse was containing DL and currency note. He deposed that thereafter, PCR official took them and accused to PS Saket and they narrated the said fact to local police official. He deposed that the local police officials recorded the statement of his friend Arvind as Ex. PW 1/A and his friend Arvind produced the said purse to police official and police official seized the same vide memo Ex. PW 1/B. He deposed that after interrogation, FIR No. 428/15 State Vs. Mukesh Kumar 8/34 police official arrested and carried out personal search of accused vide memos Ex. PW 1/C and Ex. PW 1/D. He deposed that IO also recorded his statement. This witness correctly identified the case property as Ex. P1 to P3.
7. During his crossexamination by ld. LAC, he stated that he was working as tourist guide at Hauz Khas, Delhi. He stated that police recorded his statement at PS Saket and statement of complainant was also recorded at PS Saket. He stated that they boarded the bus to reach Saket Metro Station and the route number of the said bus was 34. He stated that he had told to the police that they were traveling in bus route no. 34. He stated that he does not know the registration number of the said bus. He stated that they were standing in the said bus ahead of two steps towards driver seat from rear gate. He stated that complainant was standing near him. He stated that three-four persons were standing near them. He stated that the passenger who had signaled Arvind was sitting on 1st seat towards driver side from rear gate. He stated that complainant Arvind was standing behind him and copassenger who gave signal was sitting behind Arvind. He stated that he had not seen the said signal. He voluntarily stated that complainant Arvind told him that his purse was gone from his pocket and the said passenger gave signal to him that the accused had took out his purse. He stated that the said signal was given near DDA park, Lado Sarai. He admitted that there was traffic signal in between Lado Sarai and Saket Metro FIR No. 428/15 State Vs. Mukesh Kumar 9/34 Station and the traffic police officials might be present there. He stated that they told the driver to stop the said bus and the driver stopped the said bus near DDA park, Lado Sarai for one or two minute. He stated that no passenger was alighted from said bus at DDA Park, Lado Sarai. He stated that they (he and complainant Arvind) searched the accused and found the said purse inside the left side pocket of his pant and thereafter, they recovered the said purse inside the said bus. He stated that the copassenger who had signaled was also present there. He stated that driver and conductor of the said bus were also present there and the bus was full crowded. He stated that he called to police on 100 number near DDA park, Lado Sarai. He stated that they reached at Saket Metro Station within 45 minutes of calling at 100 number and police reached at Saket Metro Station within 3 minutes after they alighted from said bus. He stated that 1012 passengers were alighted from the said bus, but police officials did not inquire them. He stated that the passenger who had signaled Arvind was not alighted at Saket Metro Station. He stated that police remained at Saket Metro Station for around 1015 minutes and they interrogated them orally. He stated that the said bus already left from the spot when police official reached Saket Metro Station. He stated that they did not return back to spot alongwith police official. He stated that the said purse was produced by Arvind before the police official at PS Saket. He stated that the public persons assaulted the accused for twothree minutes inside the said bus. He stated that when police reached at Saket Metro Station, FIR No. 428/15 State Vs. Mukesh Kumar 10/34 he and complainant apprehended accused. He denied the suggestion that the accused was falsely implicated in this case. He denied the suggestion that no such alleged purse recovered from the accused by him or complainant Arvind or that the accused never threatened them to give injury with help of blade. He denied the suggestion that the alleged purse was planted upon accused for false implication of accused. He denied the suggestion that he was deposing falsely in connivance with complainant.
8. PW03 Ct. Yashwant deposed that on 07.07.2011, he was posted as constable at PS Saket and was on emergency duty from 8:00 AM to 8:00 PM. He deposed that at around 8:15 AM, IO / SI Amit Kumar received a DD No. 11A regarding that public persons apprehended one thief at Saket Metro Station. He deposed that thereafter, he alongwith IO went to the spot and they met complainant namely Sh. Arvind and his friend namely Sh. Jitender. He deposed that complainant and his friend produced a person before the IO and narrated the manner of incident. He deposed that on inquiry, the name of the said person was revealed as Mukesh (correctly identified in court). He deposed that complainant Arvind also produced a black colour purse containing DL and currency note of Rs. 100/ to the IO by stating that the said purse was stolen by accused and it was recovered from the possession of accused. He deposed that IO seized the said purse containing the said document / article vide seizure memo Ex. PW 1/B. FIR No. 428/15 State Vs. Mukesh Kumar 11/34 He deposed that thereafter, IO recorded statement of complainant Arvind as Ex. PW 1/A and made endorsement on the same. He deposed that the rukka was handed over to him for registration of FIR, he went to PS and got the FIR registered. He deposed that after registration of FIR, he came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO. He deposed that after interrogation, IO arrested and carried out personal search of accused vide memo Ex. PW 1/C and Ex. PW 1/D. He deposed that IO recorded the disclosure statement of accused as Ex. PW 3/A.
9. During his crossexamination by ld. LAC, he stated that on 07.07.2011, he was present at PS when the DD No. 11A was received. He stated that after 23 minutes of receiving the DD, they left from PS. He stated that he does not remember the exact time when they reached at Metro Station. He stated that they left from PS for reaching spot on motorcycle. He stated that they met the complainant at bus stand near Metro Station. He stated that tenfifteen public persons were present at the spot when they reached at the spot. He stated that the accused was produced before IO by complainant Arvind. He stated that he remained at the spot for about 20 minutes before sending the rukka. He stated that IO recorded the statement of complainant and his friend Jitender at the spot. He stated that he went to PS after 20 minutes for registration of FIR after recording the statements of complainant and his friend. He stated that he FIR No. 428/15 State Vs. Mukesh Kumar 12/34 does not remember whether the IO prepared any document before sending the rukka apart from the statement of complainant. He stated that after registration of FIR, the complainant and his friend left the spot. He denied the suggestion that he had not visited the place of incident or that the statement of complainant or his friend was not recorded in his presence. He denied the suggestion that the accused was not produced before IO in his presence or that he was deposing falsely at the instance of IO.
10. PW04 SI Amit Solanki (IO) deposed that on 07.04.2015, he was posted at PS Saket as SI on emergency duty from 8:00 AM to 8:00 PM with Ct. Yashwant and during emergency duty received DD No. 11A regarding the apprehension of pickpocket in the parking of Saket Metro Station. He deposed that he alongwith Ct. Yashwant reached at the spot i.e. Saket Metro Station near gate no. 2. He deposed that they met complainant Arvind, his friend namely Jitender and accused Mukesh (correctly identified in court) at Saket Metro bus stop. He deposed that the complainant and his friend handed over him the custody of accused Mukesh and narrated the incident to him. He deposed that complainant Arvind handed over him a purse containing DL and Rs. 100/ cash. He deposed that thereafter, he prepared rukka on the complaint of complainant as Ex. PW 4/A and prepared seizure memo of purse vide memo Ex. PW 1/B. He deposed that rukka was handed over to Ct. Yashwant for registration of FIR who FIR No. 428/15 State Vs. Mukesh Kumar 13/34 left the spot. He deposed that he prepared site plan at the instance of complainant Arvind as Ex. PW 4/B. He deposed that after registration of FIR, Ct. Yashwant came back to spot and handed over copy of FIR and rukka to him. He deposed that after interrogation, accused was arrested and his personal search was conducted vide memos Ex. PW 1/C and Ex. PW 1/D. He deposed that thereafter, they came back to PS and the accused was sent to AIIMS Trauma Center for medical examination through Ct. Yashwant. He deposed that he recorded the statement of witnesses i.e. Arvind and Jitender. He deposed that after medical examination, accused was brought back to PS by Ct. Yashwant and was taken to Tihar Jail after producing before ld. MM. He deposed that he recorded the statement of Ct. Yashwant and after completion of investigation, he filed the chargesheet before court.
11. During his crossexamination by ld. LAC, he stated that on receiving the DD No. 11A, he alongwith Ct. Yashwant immediately left the PS for spot on motorcycle. He stated that he had reached near the bus stand near the Saket Metro Station. He stated that the parking is on the opposite side of the road. He stated that the complainant met him at near the bus stop and he had apprehended the accused. He stated that he had not visited the parking lot as the incident was reported in front of parking lot. He stated that the accused was apprehended by two persons including the complainant. He admitted that the FIR No. 428/15 State Vs. Mukesh Kumar 14/34 place of occurrence was a highly crowded place. He stated that he had prepared the rukka on the complaint at the spot itself but had also recorded supplementary statement at the PS. He stated that he had requested public persons to join the investigation but none agreed. He stated that by the time, he had reached the spot, the bus in which the complainant was traveling had left the spot. He admitted that the complainant had told him the route number of the bus as 34. He stated that he remained at the spot for about 2 - 2 ½ hours. He denied the suggestion that there was Panwari shop near the spot of incident. He stated that he had no knowledge whether traffic police was present near the spot at the time of incident or not. He stated that the constable Yashwant reached back at the spot after registration of FIR within 30 minutes. He stated that it is mentioned in the tehrir that the purse was seized / taken into possession by him. He stated that the FIR number place / column was left vacant and filled later on after registration of FIR. He admitted that the site plan was also prepared before the registration of FIR. He denied the suggestion that he was deposing falsely or that he had not visited the place of incident or that all documents were prepared at the police station. He denied the suggestion that he had not investigated the present case properly.
12. This so far is the prosecution evidence in the matter.
FIR No. 428/15 State Vs. Mukesh Kumar 15/34
13. I have heard the arguments advanced at bar by the Ld. LAC Sh. Kishore Kumar 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.
14. 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.
15. It stands proved from the deposition of PW01 i.e. complainant Sh. Arvind Singh whose testimony was duly corroborated by other prosecution witnesses including eye witness Jitender Singh that accused Mukesh Kumar committed robbery by taking out/removing complainant's purse from his pocket on 07.04.2015 and was caught red handed at the spot.
16. PW01 Sh. Arvind Singh (complainant) categorically proved that on 07.04.2015 he was traveling in a bus route no. 34 and the accused who was present in the bus took out his purse from back pocket of his pant and he was apprehended immediately at the spot. He further proved that upon apprehension the accused threatened to inflict blade injuries upon him as well as his friend however he was overpowered and the purse recovered from him. He further FIR No. 428/15 State Vs. Mukesh Kumar 16/34 proved his complaint Ex. PW1/A which formed the basis of the present FIR as well as the recovery of his purse from the accused and its seizure vide Ex. PW1/B. The witness also proved the arrest of the accused vide documents Ex. PW1/C and D and identified the case property in the court vide Ex. P1 to P3.
17. Hence the complainant duly proved the incident dated 07.04.2015 as well as established the identity of the accused as the perpetrator of the crime.
18. His deposition was duly corroborated/supported by eye witness Jitender Singh who was the friend of the complainant and was traveling with him at the time of incident. He consistently proved the incident on similar lines as was proved by the complainant.
19. Further credence to the prosecution story was lend by Const. Yashwant and IO SI Amit Solanki who were examined as PW3 and PW4 respectively. They supported the prosecution story, while proving that on the day of incident on receipt of DD no. 11A they reached the spot and met the complainant who had apprehended the accused and who narrated the entire incident to them. They proved the arrest of the accused, registration of FIR etc. as was proved by the complainant as well as preparation of rukka, site plan and recording of disclosure statement of the accused vide Ex. PW4/A, Ex. PW4/B FIR No. 428/15 State Vs. Mukesh Kumar 17/34 and Ex. PW3/A respectively.
20. FIR which was registered on the complaint of Arvind Singh as well as DD no. 11A were duly proved on record/admitted by the accused as Ex. A1 and A3 vide his statement dated 04.11.2015 u/s 294 Cr.P.C.
21. During the course of arguments, Ld. Defence Counsel Sh. Kishore Kumar vehemently argued that the prosecution story cannot be relied upon as apart from the complainant and his friend who is an interested witness no public witness was joined during the entire investigation. It was argued that not only the passenger who had allegedly seen the accused removing the purse from the pocket of the complainant was not joined by the IO despite he being a material witness but the bus conductor/driver or its passengers who had apprehended the accused were also not joined in the investigation which itself creates doubt upon the prosecution story. It was also argued that even the bus ticket was not produced during the trial by the prosecution which creates further doubt upon the entire story/claim of the complainant. It was also argued that the testimonies of prosecution witnesses suffer from various improvements and inconsistencies. For example though PW1 claimed during his deposition that the accused stated "agar najdeek aaya toh mar dunga" and that he had told the same to the police however the said statement was missing from complaint i.e. Ex. PW1/A. FIR No. 428/15 State Vs. Mukesh Kumar 18/34 Furthermore both the complainant and the eye witness stated that their statement was recorded at the police station however the other prosecution witnesses including the IO claimed that their statement was recorded at the spot itself. It was argued that these inconsistencies and contradictions prove that the witnesses were indeed deposing falsely. Lastly, it was argued that nobody who had seen the accused committing the theft was examined and therefore no case of theft/robbery is made out against the accused and even the alleged blade used by the accused to threaten the complainant and his friend was also not recovered which creates further suspicion on the prosecution case.
22. However, I do not agree with the Ld. Defence Counsel. I have no reasons to disbelieve the prosecution witnesses. I find no reasons why the complainant or for that matter his friend and the police witnesses would falsely implicate the accused. No motive has been assigned/proved by the Ld. Defence counsel for false implication of accused. There is nothing on record to suggest that the complainant, his friend/eye witness and the investigating officer were inimical to the accused. In fact, there is nothing on record to suggest that the accused was known to any of the above individuals prior to the incident. Even the cross examination by the Ld. Defence counsel failed to impeach the credit of the prosecution witnesses.
FIR No. 428/15 State Vs. Mukesh Kumar 19/34
23. The law is well settled that conviction can be based upon the sole testimony of the complainant/aggrieved witness if it inspires confidence. There is no rule of law that independent corroboration is required in all cases/circumstances. Reliance may be placed upon the law laid down in Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148 and State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531, Appabhai v. State of Gujarat AIR 1988 SC 696 and State of U.P. v. Anil Singh, AIR 1988 SC 1998.
24. Nonetheless in the case at hand the testimony of the complainant was duly corroborated by eye witness Jitender Singh. As far as the defence arguments that Jitender Singh was an interested witness as he was friend of the complainant are concerned same are meritless. Merely because Jitender Singh was complainant's friend does not render him unreliable or untrustworthy. His presence at the spot was natural, well explained by him and his testimony inspire confidence. The defence could not prove that he was not present at the spot or that he was present somewhere else. In case titled as State of UP v. Samman Dass (SC) 1972 A.I.R. (SC) 677, the Hon'ble Apex Court observed that relationship is not a ground to discredit the testimony of a prosecution witness. A witness whose presence at the time and place is natural cannot be said to be interested. (Duli Chand v. State (Delhi) (DB) 1998 Cri.LJ 988, Om Prakash v.
FIR No. 428/15 State Vs. Mukesh Kumar 20/34 State, (Delhi) (DB) 1991 (1) R.C.R. (Criminal) 98 and Balwan Singh v. State, (Delhi) (DB) 1990 (1) R.C.R. (Criminal) 593.
25. The law is well settled that relationship is not a factor to affect credibility of a witness. (Gali Venkataiah v. State of Andhra Pradesh, (SC) 2007(6) R.A.J. 279 and Hardeep Singh v. State of Haryana , (SC) 2008(4) R.C.R.(Criminal) 125). There is no proposition in law that relatives are to be treated as untruthful witnesses ( Shyam v. State of M.P., (SC) 2007(2) R.C.R. (Criminal) 61). Interestedness is not a ground for rejecting his witness. (Paresh Kalyandas Bhavsar v. Sadiq Yakubbhai Jamadar, (SC) 1993 A.I.R. (SC) 1544, State of Haryana v. Tek Singh, (S.C.) 1999(2) R.C.R.(Criminal) 685, State of U.P. v. Ballabh Das, (SC) 1985(2) R.C.R.(Criminal) 287). If there is no reason to disbelieve such a witness his evidence cannot be rejected on mere fact that witness is an interested witness. ( State of Maharashtra v. Tulshiram Bhanudas Kamble, (SC) 2007(4) R.A.J. 623, State of U.P. v. Vinod Kumar (Dead) and Udai Bhan Singh, (SC) 1992(3) R.C.R.(Criminal) 689, Harijana Narayana v. State of A.P., (SC) 2004(1) Cri.C.C. 370).
26. As far as the testimony of the police witnesses is concerned there is no rule of law that police official/official witnesses ought not to be believed/relied upon. Police official/official witnesses do not suffer from any FIR No. 428/15 State Vs. Mukesh Kumar 21/34 disability to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. They cannot be presumed to be less or more reliable then any other normal public witness. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. Reliance may be placed upon Izzazul V. State (Delhi) 2007 (4) RCR Criminal 315, Kala Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 1948 and J awahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336.
27. As far as the non joining of independent public witnesses/the bus passengers including the one who allegedly saw the accused removing the purse from the complainant's pocket or its conductor or driver is concerned suffice would be to say 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 them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, FIR No. 428/15 State Vs. Mukesh Kumar 22/34 (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
28. 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 Jawa har 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 in vestigation and (2) Normally, nobody from public is prepared to suffer any incon venience for the sake of society.
29. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
30. Regarding the person/passenger who had seen the accused removing the complainant's purse is concerned the eye witness categorically stated that the said person did not get down at Saket Metro Station where he FIR No. 428/15 State Vs. Mukesh Kumar 23/34 along with complainant, accused and few passengers/public persons had got down after the incident and he further stated that the bus had already left the spot before the police reached there.
31. Furthermore, in the present case, as discussed above there is nothing on record to suggest untrustworthiness of the witnesses including police officials. If the defence wants this court to believe that the accused has been implicated falsely, the least which was expected from the defence was to at least come out as to what could have been the motive for the police for falsely implicating the accused. But no such reason is even mentioned/explained nor was suggested to the witnesses during their cross examination. The defence cannot expect this Court to believe its version by simple bare allegation that the accused is falsely implicated. At least some reason should have been put forth by the defence to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out/ disbelieve the testimony of witnesses, more so when none of the said witnesses were known to the accused previously and there does not appear any reason or motive for false implication of the accused by the complainant. The incident was reported immediately and there was no unreasonable delay in reporting of the incident, lodging of FIR and arrest of accused. Accused had not alleged any enmity with police officials also and there is no material to suspect false FIR No. 428/15 State Vs. Mukesh Kumar 24/34 implication of the accused by the police.
32. At this stage, it will be pertinent to highlight answer no.1 given by the accused during his examination under Section 313 Cr.P.C. When the entire incriminating material as appearing against the accused was put to him the accused replied/gave his answer as under: "............When I got down at near Saket Metro Station, I inquired from the complainant as to the route/bus to be taken for going to Green Park, however, he got infuriated and quarreled with me thereafter I was implicated in this false case."
33. The above statement which is admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. and 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, State of H.P. V. Wazir Chand AIR 1978 SC 315, proves the presence of the accused at the date, time and spot of incident. It also proves that he was arrested by the police at the instance of the complainant. However, his plea of FIR No. 428/15 State Vs. Mukesh Kumar 25/34 having been falsely implicated does not inspire confidence. Reason is as already discussed above, I find no reasons why the complainant or the police officials would falsely implicate the accused and it does not appeal to a prudent mind that a person will be falsely implicated that too in collusion with the police merely because he asks an unknown person about certain direction/help.
34. Apart from the above statement the MLC of the accused which is on record and bears no. 483860 dated 07.04.2015 also proves the presence of the accused at the spot and his being assaulted by the public persons after apprehension. It is specifically mentioned on the MLC that he was beaten by the public persons and that he had suffered minor abrasions and other simple injuries as detailed in the MLC. The complainant as well as the eye witness had categorically stated that after his apprehension the accused had been assaulted by the public persons.
35. It was also one of the argument of Ld. Defence Counsel/LAC that the IO even did not collect the ticket to corroborate the claims of the complainant and the eye witness that they were traveling in the DTC bus when the accused allegedly committed theft of complainant's purse which further creates doubt upon the prosecution story and itself proves that the entire story is concocted one. However I find no merit in the above submissions of the Ld. Defence FIR No. 428/15 State Vs. Mukesh Kumar 26/34 Counsel. No doubt, IO did not collect the ticket from the complainant and his friend however non seizure of the ticket does not effect the prosecution case in any manner. It is a case of theft and I fail to understand what purpose would have been served by seizing the bus ticket. Furthermore the presence of the complainant at the spot stands unambiguously proved/established in view of his testimony and that of the police officials apart from the statement made by the accused during his examination u/s 313 Cr.P.C. Moreover just because the IO carried on a negligent investigation or his investigation lacked professionalism it cannot be presumed that prosecution case was false or the complainant was lying. The law is well settled that an accused should not be allowed to go scott free or the complainant be disbelieved for defective investigation (Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717). 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. (Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82). Mere faulty investigation cannot be made basis of acquitting the accused when sufficient evidence is available to nail him (Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal) 231). In 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 , the Hon'ble Apex Court held that accused should not be acquitted solely on account of the defect in FIR No. 428/15 State Vs. Mukesh Kumar 27/34 investigation. To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective.
36. As far the non recovery of the blade is concerned the law is well settled that just because the weapon has not been recovered the same is not sufficient to discard the evidence of the PWs especially the complainant and the eye witness. (Anwarul Haq v. The State of Uttar Pradesh, (SC) 2005(5) J.T. 9 : 2005(2) Apex Criminal 350 ) and Vazir Singh v. State of Haryana, (P&H) 1990(3) R.C.R.(Criminal) 545. Furthermore it has been proved on record that the accused was manhandled/assaulted by the public persons who apprehended him during his attempt to escape the spot after committing theft and may be dur ing this assault/scuffle the blade fell down or was thrown by the accused. It be ing a blade i.e. small but nonetheless sharp and deadly weapon there are all chances that it got misplaced etc. during the scuffle/assault.
37. As far the discrepancies pointed out by ld. Defence counsel are concerned i.e. whether the statement was recorded at the PS or at the spot etc. suffice would be to say that the discrepancies as pointed out by Ld. Defence counsel are too trivial in nature to be given any weightage. The discrepancies as above are natural and bound to occur on account of passage of time and lapse of memory. Human memories are apt to blur with passage of time. The FIR No. 428/15 State Vs. Mukesh Kumar 28/34 incident is of April 2015 and the deposition/cross examination of witness was recorded during August and December 2015 i.e. after a gap of around 48 months. 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.
38. By and large a witness cannot be expected to possess a photographic memory and to recall the minute details of an incident. It is not as if a video tape is replayed on the mental screen. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful FIR No. 428/15 State Vs. Mukesh Kumar 29/34 and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Reliance may be placed upon the observations made by the Hon'ble Apex Court in case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada 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 .
39. The law is well settled that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be an nexed with undue importance. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. One cannot come across a witness whose evi dence does not contain some exaggeration or embellishments. Sometimes there could even be a deliberate attempt to offer embellishment and sometime in their overanxiety they may give slightly exaggerated account. Court can sift the chaff from corn and find out truth from the testimony of witnesses. Evidence is to be considered from the point of trustworthiness. If this element is satisfied they ought to inspire confidence in mind of the court.
FIR No. 428/15 State Vs. Mukesh Kumar 30/34
40. In the case at hand I find no reasons to disbelieve the incident, the circumstances in which the same occurred or the testimony of the complainant and the eye witness. Whether the statement was recorded at the PS or at the spot is insignificant. What is material is that the statement was indeed recorded. May be the witnesses forgot over a period of time/due to lapse of time as to where the statement was exactly recorded. Furthermore it stands established in view of the testimony of the complainant, eye witness and the prosecution wit nesses that the police had reached the spot and after the incident the com plainant and the eye witness had also gone to the PS along with the accused. It also stands established that inquiry were made and the complainant and the eye witness orally/verbally narrated the incident to the police at the spot itself (as emerges from the cross examination of PW2) and may be the police had jotted down/reproduced into writing the statements at the spot itself but got signed later on at the PS. But whatever may the case the discrepancies are not fatal so as to render the prosecution case unbelievable or untrustworthy.
41. As far as the improvements pointed out by Ld. Defence counsel are concerned i.e. "agar najdeek aaya to mar dunga" which the complainant claimed were the words used by the accused at the spot and which finds no mention in the original complaint Ex. PW1/A is concerned it is to be seen that firstly after a lapse of 4 months the witness cannot be expected to remember verbatim/word FIR No. 428/15 State Vs. Mukesh Kumar 31/34 by word the statement given by him to the police 4 months ago. Secondly, it is not as if this part was completely missing from original statement Ex. PW1/A. It is categorically reflected in statement Ex. PW1/A as well as the statement of eye witness u/s 161 Cr.P.C. that the accused threatened to inflict them with blade in jury. Only it is not stated exactly on the terms as was stated during the examina tion in chief which is natural given the delay as well as overall facts and circum stances of the case. Thirdly, Ex. PW1/A is not in the handwriting of complainant Arvind Singh but was written by the IO upon his dictation. May be the com plainant had used the exact words which were incorporated by the IO in the com plaint as above/differently.
42. The last lines of argument adopted by Ld. Defence counsel was that no case of robbery is made out as the accused neither caused nor attempted to cause hurt or fear of instant hurt upon the complainant at the time of alleged commission of theft of his purse. Furthermore the complainant admittedly had not seen the accused removing his purse and he allegedly claimed that he was informed regarding the same by a copassenger who as discussed above was not joined in the investigation by the IO. However, I do not agree with the Ld. De fence counsel. As far as the contentions that the complainant had not seen the accused removing the purse are concerned no doubt the complainant himself did not see the accused removing the purse however that does not absolve the ac FIR No. 428/15 State Vs. Mukesh Kumar 32/34 cused of his guilt/liability. The purse of the complainant was recovered by the complainant from the trouser of the accused and this was done immediately/ spontaneously after the complainant was signaled by a passenger in the bus that the accused had removed his purse from his back pocket. This proximity/ imme diate recovery of the purse from the accused and the identity of the accused as established by the complainant as being the person who removed the same leaves no doubt whatsoever regarding the guilt of the accused. As far as the non examination of copassenger is concerned same has already been discussed as above and it does not effect the prosecution story at all.
43. As far as the defence's arguments that it is not at all a case of rob bery but atmost a case of theft I do not agree with the same at all. Robbery is an aggravated form of theft. A bare glance at the definition of robbery as defined u/s 390 IPC would reveal that for a theft to be treated as a robbery it is not necessary that the offender causes or attempts to cause any person hurt or fear of instant hurt at the time when he commits theft of property belonging to the complainant. A theft would be robbery also in cases wherein after having committed the theft the accused with an intention/attempt to carry away the property so obtained causes or attempts to cause to any person hurt or fear of instant hurt. In the case at hand both the complainant and the eye witness categorically stated that the accused repeatedly threatened to inflict blade injury upon them while trying to FIR No. 428/15 State Vs. Mukesh Kumar 33/34 flee away/escape from there however thankfully the accused was overpowered before he could injure anybody. This is a clear case of robbery.
44. Accordingly, in view of my above discussion, accused is held guilty under section 392 IPC.
45. I order accordingly.
46. Copy of the judgment be given to the accused free of cost.
47. Let he be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao)
Court on 02.01.2016 ACMM (South)/Saket Courts/New Delhi.
FIR No. 428/15 State Vs. Mukesh Kumar 34/34