Delhi District Court
State vs . on 30 June, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 90549/2016
CNR No. -: DLSE020021122015
FIR No. -: 696/2015
Police Station -: Sarita Vihar
Section(s) -: 380/454/411 IPC
In the matter of -
STATE
VS.
JAI SIYA RAM @ JAI SINGH RAM @ TINKOO
S/o Dharamveer,
R/o H. No. C-854, Jahangirpuri,
New Delhi.
... Accused Person
1. Name of Complainant :- Shobha Gupta Aggarwal
2. Name of Accused Person :- Jai Siya Ram @ Jai Singh Ram
@ Tinkoo
3. Offence complained of or :- 380/454/411 IPC
proved
4. Plea of Accused Person :- Not Guilty.
5. Date of Commission of offence :- 09.09.2015
6. Date of Filing of case :- 09.11.2015
7. Date of Reserving Order :- 01.06.2023
8. Date of Pronouncement :- 30.06.2023
9. Final Order :- Conviction u/s 380/454 IPC
Acquittal u/s 411 IPC.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The present FIR was registered at PS Sarita Vihar u/s FIR No. 696/2015 State v. Jai Siya Ram Page 1 of 14 454/380/411 IPC on the basis of statement dated 09.09.2015 made by complainant Ms. Shobha Aggrawal to the effect that on 09.09.2015, at about 12:00 PM at H.No. F-251 near Gate No. 1, Sarita Vihar within the jurisdiction of PS Sarita Vihar, that the Accused Jai Siya Ram alongwith co-accused Jogender @ Johny (since then not traced) in furtherance of their common intention committed house breaking in order to commit the offence of theft at the abovesaid residential premises and committed theft of one safe, grey colored bag containing a jewellery box (which further contained jewellery articles), two bedsheets belonging to the complainant without her consent. Further, the said accused used housebreaking implements such as rod cutter, screw driver, iron rods to break open the lock of the aforesaid premises and thereby committed offence u/s 454/380/411 IPC.
2. Upon completion of investigation, charge sheet for the offence punishable U/s 454/380/411 IPC was filed on behalf of the IO and the accused was consequently summoned. On his appearance, a copy of chargesheet was supplied to him in terms of section 207 of CrPC. Perusal of file reveals that charge for commission of offence U/sec. 454/380/411 IPC was framed against the accused by the Ld. Predecessor on 21.12.2015 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
DOCUMENTS ADMITTED PURSUANT TO STATEMENT OF ACCUSED U/S 294 CRPC Ex. A1 Copy of FIR.
FIR No. 696/2015 State v. Jai Siya Ram Page 2 of 14
ORAL EVIDENCE
PW1 :- Smt. Shobha Aggarwal (complainant in the
present case)
PW2 :- HC Bani Singh, No. 3504, South-East,
(Witness in the present case)
PW3 :- SI Chetram, (In-Charge Crime Team)
PW4 :- SI Amit Sharma, (IO)
DOCUMENTARY EVIDENCE
Ex. PW1/A :- Written complaint of the complainant.
Ex. PW1/B to :- Seizure memo of Rod cutter, screw driver , Ex. PW1/E iron rod, jewellery and Tijori.
Ex. P-1 :- Safe/tijori Ex. P-2 & P-3 :- Multi colored bedsheet (1 double and 1 single) Ex. P-4 & P-5 :- Greyish Black Bag containing House breaking implements i.e. one screw Driver one iron rod and one big sized rinch Ex. P-6 & P-7 :- Red jewellery box and one gold neck chain with pendant and one set of ear rings.
Ex. P-8 :- One pair of silver anklets
Ex. P-6 :- One yellow colored jewellery pouch
containing one pair of silver bangles
Ex. PW2/A :- Arrest memo of the accused.
Ex. PW2/B :- Personal search memo of the accused.
Ex. PW2/C :- Disclosure statement of the accused.
Ex. PW3/A :- Report of the crime branch qua chance
prints.
Ex. PW4/A :- Rukka prepared by the IO.
Ex. PW4/B :- Site plan prepared at the instance of the
complainant.
4. During the course of trial eye-witness namely HC Birender Singh (Duty Officer) was dropped from list of witnesses pursuant to the statement of the accused recorded u/s 294 of Cr.PC.FIR No. 696/2015 State v. Jai Siya Ram Page 3 of 14
5. PW-1/Shobha Aggrawal deposed that on 09.09.2015 at around 2 PM when she was returning from the market to her house i.e F-251, Sarita Vihar, she saw two boys carrying heavy articles wrapped in bedsheet in front of her house. She recognised the bedsheet and asked what were they doing. They said that they were carrying an AC for repair. However, when she reached her house, the locks of the main gate were broken and doors of the rooms were open. Almirahs were also found broken open and cloth/articles were scattered on the bed. Hence, she ran outside and shouted "chor-chor". Upon hearing the said shout, the boys left the heavy luggage in the bedsheet outside flat no. F-266 and started running towards Gate no. 1. 2 police officials who were coming from the same side, on hearing her voice chased the two persons and successfully caught hold of the present accused. He revealed the name of his associate to be Jogender @ johny. PW-1 checked the wrapped articles and found her small heavy tijori wrapped in bedsheet. The boy who was also carrying a grey colored bag which upon checking by PW-1 was to contain red colored jewellery box (further containing gold necklace) yellow colored pouch (further containing two silver bangles), white colored pouch (containing silver anklets) and one grey colored packet (containing screw driver, iron rod and chheni). The polcice official informed the police station and IO came at the spot along with crime team. Her statement was recorded i.e Ex. PW1/A. Site plan, Ex. PW4/B was prepared at her instance. The rod cutter, screw driver, iron rod, jewellery, bedsheet and tijori were seized vide seizure memo Ex.
PW1/B to Ex. PW1/E with seal of AS. The witness also correctly identified the accused and the case property in Court, Ex. P-1 to P-
9. FIR No. 696/2015 State v. Jai Siya Ram Page 4 of 14 PW-1 was duly cross examined by Ld Cousnel for the accused. She deposed that the bedsheets were purple and green in color. She further stated that she returned at the spot from the market at 1:45 PM and that she was in the market for 1.30 Hrs. She further stated that the two persons carrying the bedsheets were at 5- 10 paces from her house. She stated that she had seen the accused persons near house no. F-266, Sarita Vihar and that the gate of her colony is 5 minutes from her house. Her neighbour was the one who had infomed the police. She also admitted that the spot of incident was frequented by many persons. She also stated that the proceedings by the police were conducted in her presence. She denied the suggestion that the case property was planted on the accused persons and that the real accused persons had ran away from the spot and the present accused had stood at the spot on hearing the hue and cry and was then apprehended by the police.
6. PW-2/ HC Bani Singh has deposed that on 09.09.2015 when he was on patrolling along with HC Manoj at F Block Sarita Vihar, he heard a lady shouting "chor chor pakdo pakdo", at about 2 PM and saw that she was running after a boy, who was running towards gate No. 1, F-block, Sarita Vihar. Thereafter, PW-2 along with HC Manoj chased and apprehended the said boy, who revealed his name as Jai Siya Ram @ Tinku. HC Manoj informed PS Sarita Vihar through his wireless set. After some time IO SI Amit Sharma arrived at the spot. The accused boy was handed over the IO. A grey bag which was being carried by the accused was also handed over to the IO. On the complaint given by the complainant, IO prepared Rukka and sent the same for registration of FIR through him. After registration of FIR, PW-2 returned to the spot and gave copy of FIR and original Rukka. He has further deposed that on opening the grey bag one iron katta and FIR No. 696/2015 State v. Jai Siya Ram Page 5 of 14 one screw driver was found, which was seized vide seizure memo Ex. PW1/B. Thereafter one jewellery was also recovered from inside the above said baf and it was mentioned with "PP jewellers Govt. Recognised Export House, Karol Bagh, New Delhi. The said jewellery box was found containing one golden necklace set and one visiting card in the name of Ajeet prasad Aggrawal Advocate. PW-2 further deposed that one yellow color and one white color pouch was also found inside abovesaid jewellery box white clolor pouch (deepak jewellers) was found containing one pair of silver anklets. Yellow colour pouch (Uma jewellers) was found containing one pair of white color bangles). Thereafter, they all went in front of the house whrere accused committed theft. One locker which was wrapped in bed sheet was lying in fron og house No. F-266. IO seized both bed sheets vide memo already Ex. PW1/D. After preparing pullands and sealing them with the seal of AS, IO also seized the locker vide memo already Ex. PW1/E, after wrapping it with the help of Doctor Tape and sealed it with the seal of AS. Thereafter, IO arrested and personally searched the accused vide arrest memos Ex. PW2/A and Ex. PW2/B. Further, IO recorded disclosure statement of the accused which is Ex. PW2/C. Accused was correctly identified by the witness in the court that day. Despite opportunity PW-2 was not cross examined by Ld Counsel for the accused.
7. PW-3 SI Chetram stated that on 09.09.2015, upon receipt of information from Duty Officer from PS Sarita Vihar, he along with Ct. Amit Singh (photographer) reached at the spot and met the IO. After inspection, he lifted 7 chance prints from two wooden doors and one tijori, marked as Q1- Q7. Ct. Amit Singh took the phorographs of the chance prints and of the spot. He prepared the report Ex. PW3/A. FIR No. 696/2015 State v. Jai Siya Ram Page 6 of 14 In his cross examination he stated that he reached the spot at 4:30 PM and left the spot at 5:30 PM. He met the IO. Public persons were also present at the spot.
8. PW-4 SI Amit Sharma has deposed that upon receipt of information on 09.09.2015 at around 2:15 PM, he went to the spot and met the complainant. HC Manoj and Ct. Bani Singh were present, who handed over the custody of the accused along with one bag and locker (which was recovered from the possession of the accused) to the IO. He further prepared Rukka on basis of statement of the complaiannt, Ex. PW4/A and sent the same for registration of FIR through Ct. Bani Singh. Site plan was prepared at the instance of the complainant Ex. PW4/B. He stated that the crime team inspected the spot and lifted seven chance prints. He also observed that the accused had made ingress into the house by breaking window grills. The FIR and original Rukka was returned by Ct. Bani Singh. Seizure Memo Ex. PW1/B to PW1/E were prepared. Accused was arrested and searched vide Ex. PW2/A and Ex. PW2/B. His disclosure statement was recorded, Ex. PW2/C. Case property was deposited in the malkhana. Statement of witnesses was recorded and chargesheet was prepared. Witness correctly identified the accused on that day.
PW-4 was duly cross examined by Ld Cousnel for the accused in which he stated that no recovery was effected from the accused in his present. He denied the suggestion that the property was planted on the accused.
STATEMENT OF ACCUSED
9. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of FIR No. 696/2015 State v. Jai Siya Ram Page 7 of 14 accused was recorded without oath on 04.03.2022 under section 313 CrPC in which he stated that he is innocent and he has been falsely implicated in the present case. He further stated that he does not want to lead any defence evidence and matter was listed for final arguments.
ARGUMENTS
10. I have heard the Ld. APP for the state and Ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the Ld. APP for the state that there is sufficient material on record to convict the accused for the said offences.
12. Per contra, the Ld. counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that main witnesses are not available to prove the case of prosecution, nothing has come on record against the accused. He has stated that the Accused was standing at the said spot as he heard the hue and cry of the complainant and that he did not commit the offence. He also stated that there is no eye witness to the actual commission of theft. He also argued that no public witnesses apart from the Complainant are involved in the present case. As such, it is prayed that the accused person be acquitted for the said offences.
13. For proving its case, the prosecution was required to establish that the accused had entered into the property i.e., after breaking open the lock of the said premises. It was also required to be established that the accused intending to take dishonestly the stolen items out of the possession of the complainant and without FIR No. 696/2015 State v. Jai Siya Ram Page 8 of 14 the consent of the complainant had moved it in order to such taking from the said house.
14. The star witness in the present case is the complainant/victim PW1 Ms. Shobha Aggarwal. On the basis of her complaint the present FIR has been registered. Her deposition has remained consistent with the initial complaint Ex. PW1/A. She has correctly identified the accused as the person seen by her, in front of her house, with heavy articles wrapped in her bedsheet, i.e., Ex. P1 to Ex. P9. She has categorically deposed that she had seen two boys carrying heavy articles wrapped in a bedsheet belonging to her, outside her house, and when she asked them, they said that they were carrying an air conditioner, however as soon as she entered her house, she saw that the main lock was broken and doors of rooms were open and almirahs were also open. She thereafter ran outside and shouted chor-chor, and then two police officials who were on patrolling duty, caught one of the boys, i.e., the Accused, near gate No. 1. Thereafter, the tijori was found wrapped in the bedsheet and various jewellery items were found in a gray bag which was being carried by the accused. She has correctly identified all articles, the safe, the bedsheets etc in her testimony. In her cross-examination, the Ld. Counsel for the accused could not succeed in bringing anything to show that the testimony was tainted or unworthy of placing reliance upon. The accused was apprehended at behest of the Complainant, near the spot by HC Bani Singh and HC Manoj, i.e., PW-2. The said PW2 has also corroborated this fact. PW-2 also corroborated the fact that PW-1 was shouting chor chor behind the Accused and was carrying a gray colour bag when apprehended. Both PW-1 and PW-2 have also deposed as to the recovery of the stolen articles, Ex. P1 to Ex. P9 from the bedsheet which was dropped by the Accused outside house FIR No. 696/2015 State v. Jai Siya Ram Page 9 of 14 No. F-266; as well as from the gray bag found on the body of the Accused. PW-2 has not been cross-examined by the Accused, despite opportunity. PW-4 has also deposed that he observed that many articles and clothes were scattered over the floor of the house of the Complainant and disturbed from their position. In view of the categorical testimony of the complainant, the offence of theft in dwelling house, etc. made punishable u/s 380 IPC has been duly proved by the prosecution. The fact that it was recorded in order dated 27.11.2019 that the lifted finger prints did not match with existing data base of criminals, does not help the Accused, as in the clarification sought from PW-3 on 01.06.2023, he has stated that the system which analyses the finger print match is very old and hence, not reliable and also that he does not know whether the Accused was part of the existing criminal data base or not. However, he stated that no specific matching with finger prints of the Accused was done. Hence, this fact does not have the effect of diluting the case of the prosecution.
15. As far as the offence punishable u/Sec. 454 IPC concerned, the Court is of the opinion that the prosecution has also been successful in proving that the accused has committed the offence of house breaking in order to commit theft of the articles, Ex. P1 to Ex. P9. The accused has been shown to be apprehended with an iron rod, rod cutter and screw driver, Ex. P4 (Colly). The complainant has also stated that the locks on the main gate were broken when she entered the house. PW-4 has also deposed that the Accused had made his ingress by breaking the window grills. While there is a discrepancy between the testimony of PW-1 and PW-4 as to what was broken to enter the house, the same being a minor discrepancy, and in light of the whole chain of circumstances, the same does not poke a hole in the case of the prosecution. The fact FIR No. 696/2015 State v. Jai Siya Ram Page 10 of 14 that the accused was apprehended while taking the stolen articles out of the community coupled with the fact of recovery of the iron rod/iron cutter and screw driver from his possession creates a sequence of facts so closely connected in time and space that the only conclusion which can be drawn is to the effect that the said iron rod/cutter/screw driver has been used by the accused to break open the said lock in order to commit the offence of house breaking. Therefore, the offence punishable u/Sec. 454 IPC also stands duly proved.
16. Ld. Counsel for the accused has taken the defence that no other public witness has been examined by the prosecution to corroborate the testimony of the complainant. Hence, reasonable doubt has been raised in his testimony.
17. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of a victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled. The testimony of a victim stands on a higher footing. For appreciating the evidence of a victim, the Court has to see that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the accused. Being the victim of the crime, he would be most keen to ensure that the real culprit does not go scot free. The testimony of PW1 is cogent and convincing. I do not find any contradiction in the testimony of PW1 and other material on record.
FIR No. 696/2015 State v. Jai Siya Ram Page 11 of 1418. As has been pointed out by the Ld. Counsel there might be some minor contradictions regarding the time of the incident and the mode of entry into the house, in the testimonies of the witnesses. However, the said inconsistency is not material in nature. Hon'ble Supreme Court in Bhagwan Jagannath Markad and others v. State of Maharashtra (2016) 10 SCC 537, has observed as under :-
"While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of a former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility.
The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of FIR No. 696/2015 State v. Jai Siya Ram Page 12 of 14 a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that the principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".
19. In the instant case, the discrepancy in the time of the incident and mode of entry into the house is not of much essence when the manner in which the offence has been committed and the identity of the offender and of the case property has duly been established.
20. In view of the above said discussion, I am of the conclusion that the prosecution has been able to prove its case successfully beyond reasonable doubt against the accused Jai Siya Ram for the offence punishable under Sec.380 & Sec. 454 IPC. He FIR No. 696/2015 State v. Jai Siya Ram Page 13 of 14 is therefore convicted for the offence punishable u/Sec.380 & Sec. 454 IPC. Since the person committing the theft cannot be said to be the receiver of a stolen property, the accused hence cannot be convicted for the offence punishable under section 411 IPC. Hence, he is acquitted of the offence u/s 411 IPC. Ordered accordingly.
Announced in open court on 30.06.2023 in the presence of the accused.
The judgment contains 14 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South East District, Saket Courts, New Delhi 30/06/2023 FIR No. 696/2015 State v. Jai Siya Ram Page 14 of 14