Delhi District Court
State vs . Rajesh Kashyap on 25 October, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE04, DISTRICT
SOUTH EAST, SAKET COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Rajesh Kashyap
FIR No. 53/15
PS. CR Park
U/s. 356/379/34 IPC
JUDGMENT
1) SI No. of the case : 89803/16
2) The date of commission of offence : 08.02.2015
3) The name of the complainant : Smt. Gurdeep Kaur
4) The name & parentage of accused : Rajesh Kashyap
s/o Lt. Sh. Duli Chand
5) Offence involved : 356/379/34 IPC
6) The plea of accused persons : Pleaded not guilty
7) Final order : Convicted
8) The date of such order : 25.10.2021
Date of Institution : 27.04.2015
Judgment reserved on : 07.09.2021
Judgment announced on : 25.10.2021
BRIEF STATEMENT OF REASONS FOR DECISION:
FIR No.53/15 State Vs. Rajesh Kashyap 1 of 15
1. The FIR No.53 was registered on 08.02.2015 at PS - CR Park On the complaint of one Mrs Gurdeep Kaur who had stated that at about 9.00 PM on that day while she was walking on the Desh Bandhu Road, two motorcycle riders came from the wrong side of the road and the pillion rider snatched away his mobile phone maker Samsung Galaxy Cone Prime and thereafter drove away. That she had seen the face of the pillion rider. The FIR was registered for the offences punishable under section 379/356/34 IPC and the investigation was conducted. During the investigation the accused Rajesh Kashyap was apprehended and the mobile phone in question was recovered from his possession and accordingly chargesheet for the offences punishable under section 356/379/34 IPC was filed against him.
2. The cognizance of the said offences was taken and the accused was summoned. After compliance of section 207 Cr.PC, the formal charge for the offence punishable under section 356/379/34 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove the allegations against the accused persons, the prosecution has examined 8 witnesses.
4. PW1 Mrs Gurdeep Kaur is the informant who had narrated the incident before the court. She had identified the accused correctly as FIR No.53/15 State Vs. Rajesh Kashyap 2 of 15 the person who had snatched away her mobile phone. She proved the statement Ex.PW1/A she gave to the police. She also correctly identified the mobile phone after producing it in the court.
5. PW2 HC Sudesh and PW3 HC Harbir Singh are the members of the team of the Special Staff, SouthEast District who had apprehended the accused on 27.02.2015 and had recovered the mobile phone from his possession. These witnesses proved the arrest and personal search memos Ex.PW2/A and Ex.PW2/B. They proved the seizure memo of the mobile phone Ex.PW2/C and of the motorcycle which the accused was using at the time of the apprehension i.e. Ex.PW2/D. They proved the disclosure statement Ex.PW2/E of the accused. Both these witnesses correctly identified the mobile phone in question from the photographs Ex.P1 and Ex.P2. They also identified the motorcycle which the accused was riding at the time of his apprehension. The witness PW3 HC Harbir Singh has also proved the site plan Ex.PW3/A which he had prepared in addition to the kalandara Ex.PW3/B upon apprehension of the accused.
6. PW4 ASI Ved Prakash he is proved the registration of the instant FIR Ex.PW4/A (OSR) and the endorsement Ex.PW4/B which he had made on the rukka.
7. PW5 Ct. Vikas deposed that on receipt of DD no.23A he FIR No.53/15 State Vs. Rajesh Kashyap 3 of 15 accompanied the IO SI Avinash to the Royal Castle Grand Hotel where they met the complainant Ms. Gurpreet who gave her statement Ex.PW1/A on which the IO made the endorsement and on the basis of which he got the FIR registered at the police station. That after registration of the FIR he delivered the copy of the FIR alongwith the rukka to the Sub Inspector Bhoop Singh and accompanied him to the place of the incident.
8. PW6 SI Avinash Kumar has corroborated the testimony of PW5 Ct. Vikas. He proved the statement Ex.PW1/A attested by him at point B and the tehrir Ex.PW6/A which he had prepared on the basis of this statement.
9. PW7 SI Bhoop Singh has deposed that on receiving the investigation of this case he and Ct. Vikram reached the spot to meet SI Avinash and the complainant Miss Gurdeep Kaur. He relieved SI Avinash and thereafter prepared the site plan Ex.PW7/A at the instance of the complainant. The accused could not be found on the date. He further deposed that on 27.02.2015 he received DD No.50B to the effect that the Special Staff had apprehended the offender along with the case property and further to the effect that the offender shall be produced before the court on 28.02.2015. On that day he went to the office of the special staff and met HC Harvir Singh and collected the relevant documents. He deposed that thereafter he and HC Harvir Singh FIR No.53/15 State Vs. Rajesh Kashyap 4 of 15 appeared before the court where the accused was formally arrested. That he interrogated him and recorded his disclosure statement Ex.PW7/B. He proved the arrest and personal search memo Ex.PW7/C and Ex.PW7/B. He deposed that on 02.03.2015 he made an application for the TIP of the accused but he refused to participate in the same. That thereafter he obtained one day police custody remand of the accused and recorded his supplementary disclosure statement Ex.PW7/E. He further deposed that thereafter at the instance of the accused he prepared the pointing out memo Ex.PW7/F. That despite efforts the accomplice of the accused could not be apprehended. This witness correctly identified the accused as well as the case property from the photographs Ex.P1 and P2 in the court.
10. PW8 HC Sarnam deposed that on 02.03.2015 he accompanied the IO who had obtained one day police custody remand of the accused Rajesh Kashyap and then he recorded the supplementary disclosure statement Ex.PW7/E and thereafter prepared the pointing out memo Ex.PW7/F at the spot and at the instance of the accused. He deposed that they searched for the accomplice in the crime of the accused but he was untraceable. This witness also correctly identified the accused in the court.
All the witnesses except the PW4 have been cross examined in detail by the learned defence counsel.
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11. It is also relevant to mention that on 10.04.2017 the accused had made a statement thereby admitting the TIP proceedings Ex.C1 conducted by the Ld MM Ms. Neha.
12. Thereafter the respective statements of the accused under section 313 Cr.PC was recorded wherein the incriminating evidence surfaced against the accused was put to him. The accused denied its veracity and correctness. The accused opted not to lead any defence evidence.
13. Thereafter the court has proceeded to hear the respective arguments of the Ld. APP and of the Ld. Counsel of the accused. I have heard the arguments and have also perused the record.
14. It is submitted on behalf of the Ld APP that in view of the categorical testimony of the complainant and of the officials of the special staff who had apprehended the accused with the stolen mobile phone, the prosecution has successfully established its case regarding the identity of accused, of the case property and the facts in which the alleged offence has been committed and therefore the accused should be convicted.
15. On the other hand the Ld defence counsel has prayed for acquittal of the accused on the ground that the accused has been falsely FIR No.53/15 State Vs. Rajesh Kashyap 6 of 15 implicated in the present case and there are material contradictions and inconsistencies in the testimonies of the prosecution witnesses and the benefit of the same should be given to the accused. It is submitted that the complainant in collusion with the police officials has falsely implicated the accused and the police have let off the actual perpetrator. It is prayed that the accused be acquitted.
16. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
17. The proceedings in the present case have emanated from the statement Ex.PW1/A dated 08.02.2015 of the informant who has stated that at about 9 PM on that day while she was walking near hotel Royal Castle a motorcycle being driven on the wrong side of the road and having two persons on it (both aged 2025 years) suddenly came and the pillion rider snatched his mobile phone make Samsung Galaxy Cone Prime. As per the case of the prosecution on 27.02.2015 an information was received by the IO SI Bhoop Singh regarding the involvement of the accused Rajesh Kashyap in the present case upon which he was formally arrested. It is alleged that the mobile phone in question was FIR No.53/15 State Vs. Rajesh Kashyap 7 of 15 recovered from the said accused by the officials of Special Staff, South East District on 27.02.2015. This mobile phone has duly been identified by the informant in the court. In her cross examination no question to the effect that the said mobile phone was never stolen/robbed has been put to the informant by the defence. The informant has also correctly identified the accused as the pillion rider who had snatched her mobile phone.
18. PW2 HC Suresh who at that time was serving in the Special Staff has deposed that on 27.02.2015 at about 7.30 PM the accused Rajesh Kashyap was apprehended at the instance of the informer from near the Alaknanda Market and the mobile phone in question was recovered from his possession. The witness correctly identified the accused and the mobile phone recovered from him (case property in the court).
19. PW3 HC Harvir Singh has deposed that on 27.02.2016 (sic.), he was posted at the Special Staff, South East District. That the accused Rajesh Kashyap (correctly identified by him) was apprehended near the Bus stand, Alaknanda Market on a secret information and the mobile phone in question was recovered from his possession.
20. From the testimonies of the abovementioned witnesses PW2 and PW3 it has been established by the prosecution that the accused FIR No.53/15 State Vs. Rajesh Kashyap 8 of 15 Rajesh Kashyap was apprehended on 27.02.2015 by the officials of Special Staff, South East District and the mobile phone in question which was stolen from the complainant was recovered from his possession. The complainant has also identified correctly the accused as the person who was riding pillion the motorcycle at the time of the incident and who had snatched the mobile phone from her possession.
21. It has been argued by Ld. Defence counsel that despite the time and place of the alleged recovery from the accused being such that the presence of independent witnesses could have been secured by the police officials, no effort was made by the officials of the Special Staff IO to join the public witnesses during recovery proceedings or further investigation. It is argued that in view thereof, the prosecution story should be viewed with suspicion.
This court finds the submissions to be without any merit as the Ld. APP has rightly stated that PW2 HC Suresh and PW3 HC Harbir have both stated that the said PW3, at the time of apprehension of the accused, had asked 45 public persons to join the investigation but they had refused. It is not uncommon that independent members of public are reluctant to become witnesses in criminal proceedings. The Hon'ble Supreme Court of India in the case of 'State of UP vs Anil Singh, AIR 1988 SC 1998' has held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. It was observed by their Lordships that the public are generally reluctant to FIR No.53/15 State Vs. Rajesh Kashyap 9 of 15 come forward to depose before the court and that it is therefore, not correct to reject the prosecution version for want of corroboration by independent witnesses. Similarly, in the case of 'Appa Bhai vs. State of Gujarat, AIR 1988 SC 696' it was observed that these days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
22. It is also a settled law that testimonies of police officials should not always be looked with suspicion when the officials have deposed with conviction and coherently with respect to the material aspect of a case. The corroboration of material aspects by such officials while deposing as witnesses in the court cannot be overlooked. In the case 'State vs Sunil, (2001) 1 SCC 652', it was observed that approaching the action of a police official with initial distrust is an archaic notion which was lavishly entertained during the British period and policemen also knew about it and that post independence, it is time now to start placing at least initial trust on the action and the documents made by the police. That at any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. Their Lordships observed that when a police official gives evidence in court that a certain article was recovered by him, it is open to the court to believe the version to be FIR No.53/15 State Vs. Rajesh Kashyap 10 of 15 correct, if it is not otherwise shown to be unreliable. That it is for the accused through crossexamination of witnesses or through any other material to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. It was categorically observed that it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent witnesses in the documents made contemporaneous with such actions.
23. It was further argued by the Ld Defence counsel that the PW3 has deposed that the accused was apprehended on 27.02.2016 and not 27.02.2015 as is the case of the prosecution and therefore his testimony should be discarded.
24. In view of the court, the date 27.02.2016, as is recorded in the testimony of PW3, appears to be a typographical mistake and furthermore no question in this regard has been put to this witness by the Defence to explain the inconsistency. In addition thereto, the testimony of PW3 is also corroborated by the arrest memo, personal search memo, seizure memos, disclosure statement, the site plan and the kalandara which all are dated 27.02.2015 and which have duly been proved by this witness. No suggestion has been given to this witness regarding the difference of the date mentioned on these documents and FIR No.53/15 State Vs. Rajesh Kashyap 11 of 15 as stated by him in the court. Accordingly, the court finds the difference in the date of the apprehension of the accused in the testimony of the PW3 to be a typographical error and the same cannot be read in favour of the accused.
25. The Ld Defence counsel has also argued that the PW6 SI Avinash has stated that he had reached the spot of the incident at about 10.15 PM and had sent the rukka/tehrir through Ct. Vikas at about 10.15 PM. That the same contradicts the testimony of the informant who has stated that the police had arrived at the spot within another 1015 minutes of her making the call to the PCR which she had made after 10 15 minutes of the incident. It is stated that the police had not questioned the guard of the hotel and the person from whose phone the PCR call was made and this leaves a significant shortcomings in the case of the prosecution the benefit of which should be given to the accused.
26. According to this court, the omission to examine the guard of the hotel and the person whose phone was used to call the PCR is insignificant when the same is considered in light of the testimony of the informant who has conclusively identified the accused as the person committing the theft of the mobile phone from her possession and from the testimonies of the PW2 and PW3 who have identified the accused as the person from whose possession the mobile phone was subsequently recovered. The difference in the time of SI Avinash reaching the spot FIR No.53/15 State Vs. Rajesh Kashyap 12 of 15 and that told by the complainant is also not of such magnitude and implication so as to completely discredit the case of the prosecution.
27. The ld Defence counsel has further argued that the testimony of PW3 HC Harbir Singh cannot be relied upon by the prosecution as this witness has not deposed on his own volition but he had deposed only after refreshing his memory from the judicial file.
28. Section 159 of Indian Evidence Act permits a witness while under examination to refresh his memory by referring to any writing made by himself at the time of transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.
29. In the present case, HC Harbir Singh has apprehended the accused with the case property and has prepared the documents like the arrest memo, personal search memo and seizure memo and therefore there was no apparent illegality when this witness had refreshed his memory by perusing those documents. In view of this court the fact that the witness had sought permission to refresh his memory indicates that the witness was not tutored and has fairly conceded that he could not remember the facts of the case. The failure of the witness to state the facts of the case without perusing the documents is natural when the same is concerned in the light of the fact that the witness has been FIR No.53/15 State Vs. Rajesh Kashyap 13 of 15 examined after more than one and half years of the apprehension of the accused. Therefore, the fact of refreshing the memory from the record by the PW3 cannot be said to be causing prejudice to the case of the prosecution.
30. The Ld. counsel for the accused has contended that the accused was lifted from his home by the police officials and thereafter, the present case was falsely registered by planting the case property on him. However, neither in his statement recorded u/s 313 Cr.PC nor in the form of examining any defence witness, the accused had produced before the court any reason for which the police officials would be acting with vengeance against him. When the allegations are of the gravity of implicating someone in a criminal case, it is imperative for the person pleading innocence to bring before the court some probable and reliable fact to create suspicion in the story of the investigating and the prosecuting agency. In the instant case apart from making a bald assertion of false implication, the accused has not furnished any explanation for his alleged false implication.
31. In such circumstances, this court does not find any reason to disbelieve the case of the prosecution. The prosecution has successfully established the guilt of the accused by leading credible and reliable evidence. The prosecution has established that on 08.02.2015 at about 9 PM in front of Hotel Royal Castle, Deshbandhu Road, CR Park, New FIR No.53/15 State Vs. Rajesh Kashyap 14 of 15 Delhi the accused alongwith his unknown accomplice and in furtherance of their common intention had used criminal force against the complainant Ms. Gurdeep Kaur to commit theft of her mobile phone and he had moved the said mobile phone in order to such taking from the possession of the complainant and without her consent.
32. As a consequence to the abovesaid discussion, the accused Rajesh Kashyap is convicted for the offences punishable u/s 356/379 r/w Section 34 IPC. Ordered accordingly.
Announced in open court (JITENDRA PRATAP SINGH)
on 25th day of October, 2021 MM4/SE/Saket Courts
Delhi
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