Delhi District Court
State vs . Jagdish @ Raju Vishkarma on 31 March, 2012
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Jagdish @ Raju Vishkarma
FIR No. 277/10
PS: Bharat Nagar
U/s 381/411/34 IPC
Case ID No. 02404R0016552011
JUDGEMENT
A) Sl. No. of the case : 7/2
B) The date of commission : 11.11.2010
of offence
C) The name of the complainant : Sh. Mahender Aggarwal
S/o Sh. Bhola Ram Aggarwal
r/o B3/12, IInd Floor, Rana Pratap
Bagh, Delhi
D) The name & address of accused : Jagdish @ Raju Vishkarma s/o Sh.
Laxmi Narain
r/o House of Faridawale Dau, Nai Basti,
Ren Chauraha, Gur Sarai, Distt. Jhansi,
UP
E) Offences complained of : U/s 381/411/34 IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Convicted U/s 381 IPC
H) The date of such order : 31.05.2012
Date of Institution: 12.01.2011
Judgment reserved on: 22.05.2012
Judgment announced on: 31.05.2012
FIR No.277/10 Page No. 1/33
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THE BRIEF REASONS FOR THE JUDGEMENT:
The accused namely Jagdish @ Raju Vishkarma had been sent to face trial in respect of offences u/s 381/411/34 IPC by the prosecution on the allegations that on receipt of DD no. 23A on 11.11.10, ASI Dev Raj alongwith Ct. Shiv Kumar reached at house no. B3/12, R.P Bagh Delhi where complainant Sh. Mahender Aggarwal met and gave statement to the effect that he was residing alongwith his family at the said address and was engaged in jewellery business. On 29.10.10, he had employed Raju Vishwakarma resident of Gram Mohalla, Nandpura, District Jhansi through A.P Services Placement and Security agency at monthly salary of Rs. 3000/. On that day, he alongwith his entire family had gone to attend engagement ceremony of son of his brother in law at Shakti Nagar at about 6.30 P.M leaving behind the said domestic servant alone in the house. When they returned back at about 10 P.M on that day, said domestic servant was found missing. On checking the house, it was revealed that rexin bag containing cash amount of Rs. 5,00,000/ ( Rs. Five Lacs Only) and jewellery worth Rs. 20,00,000/ consisting of two kundan set, one diamond set, three rings, four pairs of ear rings, four diamond rings, two diamond bangles and two kundan bangles besides one Nokia mobile phone 1600 were missing from the almirah placed in the room and he had suspicion that theft has been committed by his said domestic servant. On the basis of said statement, rukka was prepared by ASI Dev Raj and FIR in respect of FIR No.277/10 Page No. 2/33 3 offence U/s 381 IPC was got registered. Investigation was entrusted to ASI Dev Raj who prepared site plan, recorded the statements of witnesses including the statement of complainant and called crime team to the spot for inspection. During supplementary statement, complainant further disclosed that one digital camera, bottles of perfume, writs watch of Titan company and one more mobile phone make Nokia 6680 had also been stolen by the accused. on 14.11.10, accused was got arrested from the area of Khaideni situated within the jurisdiction of PS Erich, District Jhansi, UP and one wrist watch of Titan company and mobile phone make Nokia 1600 were recovered in the presence of complainant. Accused made disclosure statement before IO wherein he claimed to have handed over the stolen articles to his father Laxmi Narain. IO made efforts to trace the father of accused as well as to recover remaining case property but could not succeed.
After completion of investigation, charge sheet was prepared and filed in the Court. Accordingly, cognizance was taken by this Court.
Accused was supplied with the copy of the challan in compliance of Section 207 Cr.P.C and charge in respect of offence u/s 381/411 IPC was framed against him on 08.02.2011 to which he pleaded not guilty and claimed trial.
FIR No.277/10 Page No. 3/33 4
In support of its case, the prosecution has examined as many as nine witnesses namely PW1 HC Krishan Pal, PW2 Sh Mahender Aggarwal, PW3 SI Sat Pal Singh, PW4 Ct. Dalbir Singh, PW5 Sh. Prem, PW6 Israr Babu, PW7 Ct. Shiv Kumar, PW8 ASI Dev Raj, PW9 Ct. Ram Avtar.
Thereafter, the statement u/s 313 Cr.P.C of accused was recorded on 03.02.2012 wherein his defence was of general denial. He stated that he had been falsely implicated in this case due to quarrel which had taken place between him and son of complainant about 12 days prior to 11.11.10. Accused admitted that he was employed as domestic servant in the house of complainant Sh. Mahender Aggarwal(PW2) through M/s. A.P Placement & Security Agency on 29.10.10. He also admitted that on 11.11.10 at about 6 P.M, complainant alongwith his family had gone to Shakti Nagar for attending engagement ceremony leaving behind him alone in the house. However, he denied that he had committed theft in the house of complainant on that day. He admitted in his statement U/s 313 Cr.PC that on 12.11.10, he had made telephone call on the mobile phone of Sh. Prem Minz(PW5) and informed him that he had left the house of complainant due to quarrel. He further admitted that on 14.11.10, police officials alongwith complainant had visited the residential flat of his step mother namely Smt Leelawati situated at Khadeni and mobile phone make Nokia 1600 as well as wrist watch were recovered from his FIR No.277/10 Page No. 4/33 5 possession. However, he claimed that those two articles were given to him by the complainant for his use. He denied to have made any disclosure statement to the IO. Although, he opted to lead evidence towards DE but he failed to produce any witness towards DE and ultimately, closed his defence evidence on 25.2.12.
I have already heard Ld. APP for the State and Ld. Counsel Ms. Ifat Sultana Adv on behalf of accused. I have also perused the record carefully.
PW1 HC Krishan Pal is duty officer who has proved carbon copy of FIR as Ex.PW1/A and his endorsement on rukka as Ex.PW1/B. The said witness has not been cross examined by the accused despite grant of opportunity.
PW2 Sh. Mahender Aggarwal is the complainant in this case. He entered into witness box and deposed on the lines of prosecution story as discussed herein before. He testified that his wife had also informed him that she had kept cash amount of Rs. 50,000/ in the drawer of almirah which was also missing. He proved his statement Ex PW2/A made before the police. He deposed that on 13.11.10, he had accompanied police party to village Ram Mohalla, Nand Pura, Jhansi where it was revealed that accused alongwith his family had shifted to Gur Sarai. IO had collected call details of the phone of accused from which it was revealed that mobile phone of accused was being used from Gur Sarai. Accordingly, they went to Gur Sarai on 14.11.10 where it FIR No.277/10 Page No. 5/33 6 was found that mother of accused namely Smt Leelawati was working as a nurse in a government hospital. Accordingly, they went to the residential quarter of Smt. Leelawati where accused was found present. He was wearing wrist watch of Titan company and was also having mobile phone in his hand. Both the said articles were stolen from his house. Said articles were seized vide seizure memos Ex PW2/B and PW2/C respectively. Accused was arrested and his personal search was conducted vide seizure memo and personal search memos Ex PW2/D and PW2/E respectively. During his disclosure statement, accused claimed that his father had married twice i.e once with Smt Leelawati and then again with Smt Krishna. He also disclosed to have handed over stolen cash and jewellary articles to his step mother Smt Krishna. They also went to the house of Smt. Krishna alongwith accused where Smt. Krishna met but nothing was recovered from her house. On interrogation, Smt Krishna disclosed that her husband namely Sh Laxmi Narain had taken away entire jewellery articles and cash to Jhansi. He also identified mobile phone and wrist watch allegedly recovered from the accused during trial. He also identified the accused before the Court. Said mobile phone and wrist watch have been proved as Ex P1 and P2 respectively.
During his cross examination, he testified that he could not get the police verification of accused conducted as he could not get time for the said purpose. He did not hand over receipt to the police showing that cash amount of Rs. FIR No.277/10 Page No. 6/33 7 5,00,000/(Rs. Five Lacs Only) was lying in his house. However, he was having duplicate copy of the bill regarding sale of jewellary. He deposed that he did not hand over any documentary proof of jewellery worth Rs. 20,00,000/ to IO because said jewellery articles were personal jewellery of his wife which she had received at the time of their marriage as well as on other occasions. He testified that lock of the locker of almirah was not in working condition at that time due to which bag containing cash and jewellery articles was kept in drawer. The key of the almirah was kept in the drawer of bed by mistake and the almirah was opened by accused with the help of said key. He admitted that factum regarding theft of watch and other articles from his house were not told by him in his statement Ex PW2/A but he explained that said articles were stolen from other rooms of his house and he had come to know about the theft of those articles only after making statement Ex PW2/A and had told about the theft of those articles to the police at the time of arrest of the accused.
PW2 also deposed during cross examination that one suit case was recovered wherein bottles of perfume and some clothes of accused were lying. The said clothes and bottles of perfume were also stolen by accused from his house and this fact was revealed only after recovery thereof from the possession of accused. However, the said articles were not seized by the police. He did not disclose about the theft of those articles to the police on 11.11.10 as it was not in his knowledge. He further deposed that said suit case FIR No.277/10 Page No. 7/33 8 and bottles of perfume were handed over to him by the police. Mobile phone Ex P1 was purchased in the name of his wife but he could not produce any bill as it was purchased long time back. He also did not produce any bill regarding purchase of wrist watch before the police. He denied the suggestion that wrist watch and mobile phone were falsely planted upon accused by the police in his active connivance or that he had given beatings to the accused or that accused was turned out from the house or that he was falsely implicated in this case in collusion with owner of the placement agency.
PW2 further deposed during cross examination that accused was arrested at about 10.30/11 P.M on 13/141110 while he was sleeping outside the official quarter of his mother Smt. Leelawati. The writting work was done in PS Erich. They had reached village Gur Sarai at about 12.30 A.M on 14.11.10 and they had left PS Erich at about 4.30/5 P.M on 14.11.10. Necessary DD entries were also made by IO at PS Erich regarding their arrival and departure. He further deposed that keys of his almirah as well as of other rooms were not missing from the house but still he did not hand over bunch of keys to the police. He further deposed that bolt of the door of the bathroom encircled A in photograph Ex P4 was broken by accused for taking entry in his room. He denied the suggestion that broken bolt is not reflected in the photograph or that he was deposing falsely.
PW3 SI Satpal Singh deposed that on 12.11.10, he was posted in Crime FIR No.277/10 Page No. 8/33 9 Team of northwest district. On that day, he alongwith other members of crime team went to H.No. 3/12, Rana Pratap Bagh at about 12.05 am. They inspected the spot and photographs of the spot were also taken. He made efforts to lift the chance prints from the spot but no chance prints could be lifted. He proved detailed report as Ex.PW3/A. The said witness has not been cross examined by the accused despite grant of opportunity.
PW4 Ct. Dalbir Singh is a formal witness who deposed that he was part of crime team and during intervening night of 11/12112010, he took five photographs of the place of incident with digital camera. He had handed over photographs Ex.P3 to P7 alongwith CD to IO ASI Dev Raj. He has not been cross examined by the accused despite grant of opportunity.
PW5 Sh. Prem Minz deposed that he used to run placement agency under the name & style of M/s A.P.Placement & Security. On 29.10.2010, he had got employed Raju (accused) as domestic servant in the house of Sh. Mahender Aggarwal (PW2) situated at B3/12, Rana Pratap Bagh. The salary of accused was fixed Rs. 3,000/ per month. The form with respect to employment of accused has been proved as Ex.PW2/A. The documents pertaining to registration were handed over by him to IO. The said documents were seized by IO vide seizure memo Ex.PW5/A. He proved copies of said documents running FIR No.277/10 Page No. 9/33 10 in two pages as Ex.PW5/B. The said witness has not been cross examined by the accused despite grant of opportunity.
PW6 Sh. Israr Babu produced record pertaining to allotment of mobile no. 9711708195 in the name of Smt. Rekha Devi. He proved copy of the application form as Ex.PW6/A and copy of I card as mark X. He also proved the attested copy of call details record as Ex.PW6/B. The call details record of aforesaid mobile number and other mobile number i.e 9811044928 issued in the name of Sh Mahender Kumar Aggarwal(PW2) have been proved as Ex.PW6/C and Ex.PW6/D. During his cross examination, he testified that he can not tell as to whether any application for missing/blocking of the aforesaid sim was received in their nodal agency or not. He did not have any personal knowledge about the present user of the aforesaid mobile number.
PW7 Ct. Shiv Kumar deposed that he alongwith IO ASI Dev Raj went to the spot i.e B3/12, Rana Pratap Bagh. IO made inquiry from complainant Mahender Aggarwal and recorded his statement. He prepared rukka and handed over to him. He got the FIR registered in PS Bharat Nagar and handed over copy of FIR and original rukka to IO.
During his cross examination, he testified that they went to the spot at about 10.30 pm. He took rukka at about 11.30 pm and returned back to the spot FIR No.277/10 Page No. 10/33 11 at about 12.30 am. He denied the suggestion that he did not join the investigation and all the proceedings were conducted while sitting in the PS. PW8 namely ASI Dev Raj is IO of this case. He entered into witness box and deposed on identical lines as per prosecution story. He proved copy of DD no. 23A regarding receipt of information about theft in the house of complainant as Ex PW8/A, his endorsement on the statement of complainant as Ex PW8/B, site plan as Ex PW8/C during chief examination. He also narrated the entire sequence of facts about visiting Jhansi in search of accused on 12.11.10 till the arrest of accused in the morning of 14.11.10, recovery of mobile phone and wrist watch from the possession of accused, their identification by the complainant, seizure of those articles and their returning back to Delhi. He also proved disclosure statement of accused as Ex PW8/D. Specific question was put to him during chief examination about the reason for not making Sh. Prem Minz(PW5) as witness to the seizure memo as well as on other relevant documents prepared after arrest of accused in this case. IO explained that Sh. Prem Ming(PW5) was not made witness on his request as he expressed apprehension from accused and did not want that accused should know that he had been apprehended at his (PW5) instance.
During his cross examination on behalf of accused, IO testified that complainant did not hand over any document showing the source of stolen cash and ownership of stolen jewellery articles to him. However, he explained that FIR No.277/10 Page No. 11/33 12 complainant had informed him that those jewellery articles were very old and that is why, he was not having any ownership document of the same. Complainant had also told him that he used to carry cash from shop to house on daily basis and he would search for the bills of mobile phones and wrist watch but complainant did not produce any ownership document. He had obtained call details record of mobile number. SIM of the said mobile was found to be in the name of complainant. During his further cross examination, IO expressed his ignorance about the theft of Rs. 50,000/ cash belonging to wife of complainant besides other stolen articles. He admitted that he did not record the statement of wife of complainant despite the fact that she was present in the house and also did not make her as a witness in this case. However, he explained that same was not done as complainant had already informed about the theft as well as the details of the stolen articles. He denied the suggestion that wife of complainant was not joined during investigation as she was giving favourable statement for the accused. He admitted that he did not show the position of almirah, the door of bath room and of bed in the site plan Ex PW8/C . He also did not give any specific reason for not doing so. He also admitted that he did not put any seal on the said almirah as well as on drawer of the bed before arrival of crime team to the spot. He clarified that since he was present at the spot when crime team reached, he did not consider it necessary to put any seal on the almirah as well as on drawer of the bed. He explained FIR No.277/10 Page No. 12/33 13 that crime team had reached the spot at about 12 mid night but inadvertently, the date of 12.11.10 has been mentioned in report Ex. PW3/A of crime team instead of 11.11.10. Rukka was sent at about 11.30 P.M through Ct. Shiv Kumar(PW7) who came back to the spot alongwith copy of FI R at about 1 A.M on 12.11.10. He denied the suggestion that till preparation of crime team report Ex PW3/A, he had no knowledge about the details of articles stolen from the house of complainant. He did not seize the bolt as it was only got turned but was not completely detached from the door. He admitted that he did not obtain signature of mother of accused namely Smt. Leelawati on seizure memo or on personal search memo but could not tell any specific reason for not doing so. He testified that no independent public witness was present at the time of recovery of mobile phone from the possession of accused as it was not a residential area and the quarter was situated on the outskirts of village. He admitted that there were other quarters situated there but clarified that quarter adjacent to the quarter of mother of accused was lying locked at that time. He had no knowledge as to whether other quarters were empty or were in occupation of other persons. Accused was arrested at about 6.30 P.M in the presence of complainant and Ct. Ram Avtar(PW9). He admitted that Sh. Prem Minz(PW5) was also present at that time but did not join him on his personal request. He denied the suggestion that mother of accused was also not made as an attesting witness on seizure memo of mobile phone and wrist watch as FIR No.277/10 Page No. 13/33 14 said memos were prepared subsequently. He admitted that signature of Smt. Krishna(step mother of accused) appears at point C on arrest memo Ex PW2/D but explained that said signature were obtained as token of giving intimation of arrest to Smt. Krishna who had also come to Primary Health Center from Gursarai alongwith them. He deposed that this fact was duly mentioned in the case diary. Specific question was put to the IO during cross examination as to why FIR number was not mentioned in column no. 2 of report Ex PW3/A of crime team on which he clarified that he had not received the copy of FIR by the time when report was prepared by crime team. That is why, he mentioned DD no. 23A in column no. 2 thereof. He further explained that since accused had disclosed that remaining case property was in possession of his father who was available at Gur Sarai situated at a distance of about 14/15 km from Primary Health Centre, Khaideni, he did not prepare seizure memo of mobile phone and wrist watch so that in case remaining case property is also recovered then he would prepare the seizure memo accordingly. However, he denied the suggestion that he did not prepare seizure memo immediately at Khaideni since nothing was recovered from the possession of accused and he was not in a position to plant any recovery upon the accused or that mobile phone and wrist watch were subsequently planted upon the accused and seizure memo was prepared accordingly. He did not try to ascertain from the business transactions of complainant as to whether complainant had actually received cash amount FIR No.277/10 Page No. 14/33 15 of Rs. 5,00,000/ (Rs. Five Lacs only) in his business on that day or not.
PW9 Ct. Ram Avtar deposed that on 12.11.10, he had joined the investigation of this case with ASI Dev Raj. He alongwith IO, complainant Sh. Mahender Aggarwal(PW2) and one person from placement agency went to Jhansi, UP for making search of accused Raju but accused was not found there. IO made inquiry and it was revealed that he had shifted with his family to village Gur Sarai, Jhansi. On 13.11.10, person from placement agency had received a telephone call of accused and he informed him that he was present in Gurgaon, Haryana. His location was informed in village Gur Sarai. They reached to village Kharani and reached there in the night. IO made request for obtaining help of local police to conduct raid. They reached there at about 9.45 am. Accused Jagdish @ Raju was found present outside the flat. Accused was apprehended. He was wearing a wrist watch and complainant identified the wrist watch being same which was stolen from his house. IO conducted search of cloth of accused and one mobile phone make Nokia 1600 was recovered from the pocket of his pant. Complainant identified that mobile phone being the same which was stolen from his house. On further interrogation, accused had disclosed that other articles were with his father. They they alongwith accused proceeded for Gur Sarai. IO made inquiry from Smt. Krishna about her husband and she informed that he had gone to Jhansi on 13.11.10. They conducted search of stolen articles in the said house but nothing could be recovered. IO FIR No.277/10 Page No. 15/33 16 sealed the recovered mobile phone and wrist watch and affixed the seal of DRS. These articles were taken into police possession vide seizure memo Ex.PW2/B and Ex.PW2/C. Accused was arrested and IO prepared arrest memo and personal search memo Ex.PW2/D and Ex.PW2/E. During his cross examination, he successfully withstood the test of cross examination and remained firm on the testimony made during his chief examination. He denied the suggestion that he had signed personal search memo at PS and he alongwith members of raiding party had stayed in PS Erich during the intervening night of 12/13/11.10. At the time of preparation of arrest memo, personal search memo and recovery memo, Smt. Leela Wati was present. IO had completed the investigation regarding arrest of accused at about 8.00 or 8.30 pm. He denied the suggestion that no such raid at village Khaideni was conducted or that mobile phone and wrist watch were falsely planted upon the accused.
While opening his argument, Ld defence counsel argued that there is contradiction in the testimony of PW2 Sh Mahender Aggarwal(complainant) as appearing during trial visavis his statement Ex PW2/A recorded by police. In this regard, Ld defence counsel referred to relevant portion of the police statement Ex PW2/A wherein complainant told the police that he alongwith his family had left the house at 6.30 P.M on 11.11.10 and returned back to the house at about 10.30 P.M. However, PW2 deposed during his chief examination that he FIR No.277/10 Page No. 16/33 17 alongwith his family had left the house at about 6 P.M on 11.11.10. Ld defence counsel also referred to the copy of DD no. 23A dt. 11.11.10 lodged with PS Bharat Nagar where intimation was received at about 10.10 P.M on 11.11.10 about the theft being committed in the house of the complainant.
Ld defence counsel also pointed out another contradiction regarding the presence of accused as stated by PW2 Sh. Mahender Aggarwal and PW8 namely ASI Dev Raj(IO) at the time of his apprehension in this case. PW2 Sh Mahender Aggarwal has deposed that accused was present inside the residential quarter of his mother Smt. Leelawati whereas PW8 has deposed that accused was present outside the said residential quarter when the police party alongwith Sh. Mahender Aggarwal(PW2) and Sh. Prem Minz (PW5) reached there.
Ld defence counsel also pointed out yet another contradiction regarding disclosure of accused about handing over of remaining case property as appearing in the testimony of PW2 Sh Mahender Aggarwal and in the testimony of PW8 ASI Dev Raj(IO). PW2 has deposed that accused disclosed to have handed over stolen cash and jewellery articles to his mother Smt. Krishna while PW8 testified that accused disclosed to have handed over cash and jewellery articles to his father Sh Laxmi Narain.
On the other hand, Ld APP argued that aforesaid contradictions pointed out by Ld defence counsel are minor contradictions and thus, accused should FIR No.277/10 Page No. 17/33 18 not be granted any benefit thereof. Ld APP also argued that it is quite natural that there are minor contradictions appearing in the statements of prosecution witnesses examined during trial but same are immaterial.
After considering the respectful submissions made on behalf of both the sides in the light of contradictions as pointed out by Ld defence counsel, this Court is in agreement with the contention of Ld APP that those contradictions are minor contradictions which are not material at all. It is well settled law that minor contradictions are bound to occur during the depositions of the witnesses examined during trial. Rather, such minor discrepancies appearing in the testimonies of prosecution witnesses show that their testimonies are natural and free from any doubt.
In the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: FIR No.277/10 Page No. 18/33 19 "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
It has been held by Hon'ble Supreme Court in another case titled as State of Maharashtra Vs. Krishnamurti, AIR 1981 S.C. 617 that a minor discrepancy between the statement of a witness in examination in chief and in cross examination should not affect his credibility. In another matter titled as "State of Punjab Vs. Wassan Singh" reported in A.I.R 1981 S.C.697, it has been held that truthfulness should be tested on the whole.
Next limb of argument raised by Ld defence counsel is that no independent public witness has been joined by investigating agency at the time of recovery of part of case property from the possession of accused despite the fact that place of alleged recovery was residential area as per case of prosecution and independent public persons were available there.
However, the said argument was repelled by Ld APP who submitted that accused was apprehended from residential quarter of Primary Health Center(Govt. Hospital) Khaideni which was situated on the outskirts of the village as explained by PW8 ASI Dev Raj(IO). Thus, no fault can be attributed on the part of investigating agency for not joining independent public witness during recovery proceedings. In this regard, Ld APP also referred to the relevant FIR No.277/10 Page No. 19/33 20 portion of the testimony of PW8 recorded during trial.
The perusal of testimony of PW8 ASI Dev Raj (IO) as already discussed herein before, shows that there was no independent public witness present at the time of recovery of mobile phone Ex P1 and wrist watch Ex P2 from the possession of accused. Said witness categorically deposed that the place of recovery was not a residential area and it was situated on the outskirts of the village. Although, it has been admitted by PW8 as well as by PW9 Ct. Ram Avtar that there were other quarters also situated near the residential quarter of Smt. Leelawati where from the accused was arrested but it has been sufficiently explained by PW8 that quarter adjacent to the quarter of Smt. Leelawati was lying locked at that time. Moreover, it is relevant to note that complainant Sh. Mahender Aggarwal(PW2) and independent public witness namely Sh. Prem Minz(PW5) were also present at the time of apprehension of accused and both the said other witnesses have duly corroborated the statements of PW8 ASI Dev Raj(IO) as well as of PW9 namely Ct. Ram Avtar regarding seizure of mobile phone and wrist watch from the accused. Not only this, the accused himself has admitted in his statement U/s 313 Cr.PC that mobile phone and wrist watch were recovered from his possession. The said admission on the part of accused can certainly be used as a corroborative piece of evidence as provided by Section 313 (4) Cr.PC.
Under the aforesaid facts and circumstances, no benefit can be given to FIR No.277/10 Page No. 20/33 21 the accused for not joining any other independent public witness. Even otherwise, it is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme Court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
Hon'ble Supreme Court in the case titled as Ambika Prasad & Anr Vs. State reported at 2002 (2) CRIMES 63 (SC) has held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses.
Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998 ; Dr Krishna Pal and another vs. State of U. P.1996 (7) SCC 194 and in the case of FIR No.277/10 Page No. 21/33 22 Appabhai Vs. State Of Gujrat AIR 1988 SC 696, it was held 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.
Another argument advanced by Ld defence counsel is that accused is shown to have been arrested from the house of his mother Smt. Leelawati but arrest memo Ex PW2/D bears the signature of Smt Krishna (step mother of accused) which creates doubt in the story of prosecution that accused was actually arrested from the residential quarter of Smt. Leelawati situated at Khaideni. Ld defence counsel further submitted that house of step mother of accused namely Smt. Krishna was situated at Gur Sarai as per the prosecution story and the signature of Smt. Krishna appearing on arrest memo definitely creates doubt that accused was arrested at Khaideni as mentioned in the said memo.
Per contra, Ld APP argued that accused was arrested from the residential quarter of his mother Smt. Leelawati situated at Khaideni and his step mother namely Smt. Krishna signed at point C on arrest memo Ex PW2/D as token of having been informed about the arrest of accused.
After going through the material available on record as well as the testimonies of prosecution witnesses appearing on record, Court does not find any force in the contention raised by Ld defence counsel. PW8 namely ASI Dev FIR No.277/10 Page No. 22/33 23 Raj(IO) has categorically testified during his cross examination that accused was taken to Gursarai for recovery of remaining case property as well as to apprehend his father namely Sh Laxmi Narain. He also deposed that Smt. Krishna step mother of accused had accompanied them back to residential quarter of Smt. Leelawati situated at Khaideni and her signatures were obtained at point C on arrest memo Ex PW2/D in token of having informed about the arrest of accused. He also testified that he had mentioned the said fact in his case diary that Smt Krishna (step mother of accused) had accompanied them to Primary Health Center situated at Khaideni.
It has been further argued by Ld defence counsel that site plan Ex PW8/C prepared by IO ASI Dev Raj is not correct as it does not reflect the position of almirah, door of bath room, bed room, etc. She further argued that case property allegedly recovered from the possession of accused, was also not produced before the Court which is in violation of Section 170(2) Cr.PC which is mandatory in nature. Ld defence counsel also contended that investigation has not been conducted properly and in fair manner by concerned IO and therefore, accused should be given benefit of doubt on said ground.
However, the said contention raised on behalf of accused does not hold any water. No doubt, the respective positions of almirah (from which bag containing cash amount and jewellery articles as well as other articles were stolen), door of bath room as well as of bed room have not been shown in site FIR No.277/10 Page No. 23/33 24 plan Ex PW8/C. Investigating agency has also failed to get the spot photographed from all possible angles in order to show the position of the articles lying in the said house as well as the position of almirah, direction of the door of bath room as well as of bed room, etc during trial. IO also did not care to mention the position of bolt as well as of kundi of the door of bath room through which entry was taken inside the bed room of complainant(PW2) for committing theft but same do not constitute such lapse which may go to the root of the prosecution story so as to acquit the accused on this ground. In matter titled as " Visveshwaran Vs. State" reported at 2003 RLR 350 (SC), it has been held by Hon'ble Apex Court that in a criminal trial, duty of the Courts is not to let off criminals on pretty discrepancies and minor contradictions. They must show responsibility. Ground realities must be appreciated. Accused should not be allowed the benefit of defective investigation and prosecution lapse cannot be allowed to become escape routes of criminals. If there is sufficient proof of guilt by border probability, Court must ignore technical objections.
Another bone of contention raised on behalf of accused is that there is a delay in calling crime team to the spot and present FIR has been antedated in order to cover up the lacunas and to falsely implicate the accused in this case. In this regard, Ld defence counsel referred to the report Ex PW3/A of crime team wherein the date of visit at the spot has been mentioned as 12.11.10 at 11.30 P.M. Ld defence counsel also submitted that details of stolen articles have FIR No.277/10 Page No. 24/33 25 not been mentioned in the said report despite the fact that description of stolen articles had already been mentioned in the FIR which is claimed to have been registered on 11.11.10 at about 11.50 P.M. While placing her reliance upon the said documents, Ld defence counsel submitted that either FIR in question Ex PW1/A was antedated or there is a delay in calling the crime team to the spot. However, the said argument has been refuted by Ld APP appearing on behalf of State who submitted that there was no delay in calling the crime team to the spot as crime team had visited the spot immediately on the date of incident itself i.e on 11.11.10 at 11.30 P.M. Ld APP submitted that crime team had already reached the spot before registration of FIR in this case and it has been duly mentioned in column no. 9 of the crime team report Ex PW3/A that there had been theft of jewellery, cash, mobile phone, etc. No doubt, date of visit of crime branch has been mentioned as 12.11.10 in the report Ex PW3/A but same is merely a typographical mistake which is clear from the explanation furnished by PW8 ASI Dev Raj(IO) during his cross examination recorded on 09.08.11 that crime team had reached the spot at about 12 mid night on 11.11.10 and also that inadvertently date of 12.11.10 has been mentioned instead of 11.11.10 in report Ex. PW3/A. No further question has been put on the said aspect by accused during further cross examination of PW8. Moreover, said report has been proved by PW3 namely SI Sat Pal Singh but his testimony has gone unrebutted and unchallenged. Furthermore, PW4 FIR No.277/10 Page No. 25/33 26 namely Ct. Dalbir Singh (who was also part of the crime team) also proved photographs Ex P3 to P7 and testified that after receipt of call from control room, crime team had visited the spot in the night of 11/121110. His testimony has also gone unrebutted and unchallenged from the side of accused. Thus, it has been duly proved on record that crime team had actually visited the spot during the night of 11.11.10 and thus, there is no delay as such.
Another bone of contention raised by Ld defence counsel is that mobile phone Ex P1 and wrist watch Ex P2 were recovered from the possession of accused as per the depositions made by prosecution witnesses but still no article is shown to have been recovered during personal search of accused as per search memo Ex PW2/E. However, said argument is totally misconceived for the simple reason that personal search memo is meant to show the items belonging to accused which are recovered from his possession during his personal search. However, the story of prosecution in this case is that mobile phone Ex P1 and wrist watch Ex P2 which were belonging to the complainant(PW2) and were part of the case property stolen from the house of complainant, had been recovered from the possession of accused which were duly seized vide seizure memos Ex PW2/B and PW2/C respectively. Thus, those two items were not required to be mentioned in the personal search memo Ex PW2/E. It has been further argued by Ld defence counsel that there is an FIR No.277/10 Page No. 26/33 27 improvement in the statement by PW2 Sh Mahender Aggarwal(complainant) that a sum of Rs. 50,000/ was also kept in almirah by his wife as there is no such allegation either in his police statement Ex PW2/A or even in the FIR Ex PW1/A. Ld defence counsel submitted that in view of the said improvement made by complainant(PW2), his testimony should not be believed by the Court. Again, Court is unable to accept the said argument of Ld defence counsel. Merely because there has been some improvement in the testimony of complainant recorded during trial, it does not mean that his entire testimony should be discarded by the Court when it otherwise duly inspires confidence.
Court also does not find any force in the argument raised by Ld defence counsel that PW2 Sh Mahender Aggarwal(complainant) is an interested witness and therefore, his testimony should not be believed in the absence of corroboration by independent witnesses. There is no force in the submission made by Ld defence counsel that case of prosecution be viewed with suspicion as wife of complainant has not been examined during investigation. It is well settled law that evidence of a witness cannot be disbelieved merely on the ground that he is a related witness or that there is no independent corroboration thereof. Still if any authority is required than reference with advantage can be made to the judgment reported at AIR 2005 SUPREME COURT 2503 titled as Seeman alias Veeranam, Vs. State by Inspector of Police wherein It was observed in Para 4 as under: FIR No.277/10 Page No. 27/33 28 "It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998, it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, FIR No.277/10 Page No. 28/33 29 not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
Ld defence counsel also made feeble attempt to create doubt in the prosecution story by submitting that no reasonable or prudent person would keep valuable jewellery articles worth Rs. 20,00,000/ or cash amount of Rs. 5,00,000/(Rs. Five Lacs Only) in his house as such valuable articles are supposed to be kept in bank locker or any other safe place. She also argued that no effort has been made by IO to seize the keys of almirah. All these facts show that complainant might have lodged false complaint either in order to receive insurance amount against those jewellery articles or to falsely implicate the accused in this case. Said submissions are, however, found to be without any merit. Firstly, Ld defence counsel did not put any question during cross examination of complainant(PW2) on those aspects. Secondly, it is nowhere the defence taken by accused either during cross examination of prosecution witnesses or otherwise that complainant had lodged the FIR in order to receive insurance amount. No question was put by accused during cross examination of prosecution witnesses more particularly during cross examination of PW2 Sh Mahender Aggarwal as to why he kept those jewellery articles and cash amount worth Rs. Five Lacs at his house. In any case, those facts do not create FIR No.277/10 Page No. 29/33 30 reasonable doubt in the prosecution story so as to give any benefit thereof to the accused.
Now, it is a settled proposition of criminal law that prosecution has to prove its case on the judicial file beyond reasonable doubt and such doubt in the prosecution story entitle the accused to acquittal. In a case reported as Rama Kant Rai V/s. Madan Rai 2003 (8) Scale 243, it has been ruled that a person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concept of probability and the degrees of it, cannot obviously, be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the FIR No.277/10 Page No. 30/33 31 evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analyze, rest on a robust common sense and, ultimately, on the trained intuition of judge.
While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. In Sucha Singh and Anr. V/s. State of Punjab J.T. 2003 (6) S.C. 248, it has been ruled that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (Inder Singh and Anr. Vs. State of (Delhi Admn.) AIR 1978 S.C. 1091). Vague hunches cannot take place of judicial evaluation. A judge does not preside over a criminal trial, merely to see FIR No.277/10 Page No. 31/33 32 that no innocent man is punished. Judge also presides to see that a guilty man does not escape. Both are his public duties.
As already discussed above, it stands duly proved during the ocular evidence in the for of testimonies of PW2 Sh. Mahender Aggarwal as well as of PW5 Sh. Prem Minz and the documents Ex PW2/A, mark A and PW5/B that accused herein was employed as domestic servant in the house of complainant during the relevant period. This fact has also been admitted by accused himself in his statement U/s 313 Cr.PC. The circumstantial evidence as proved during trial shows that accused alone was present in the house on 11.11.10 when theft took place in the house of complainant. Furthermore, there has been recovery of mobile phone Ex P1 and wrist watch Ex P2 from the possession of accused which are part of the case property stolen from the house of complainant on that day. Although, accused has taken defence in his statement U/s 313 Cr.PC that said two articles were given to him by complainant himself at the time when he was employed as domestic servant in his house but he has failed to prove said defence before the Court. He has also failed to substantiate his defence that he had any quarrel with the son of complainant or that he was beaten up by the complainant at any point of time due to which he was compelled to leave his house.
In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the witnesses including police officials. FIR No.277/10 Page No. 32/33 33 Although the accused in his statement claimed that he is innocent and he has been falsely implicated in this case but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would do this. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the complainant for his false implication and as to what was that reason for which complainant or the police officials could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the complainant in implicating him. In the absence of this, I do not find any reason to throw out the testimony of witnesses.
In the light of aforesaid discussion, Court is of the view that prosecution has been able to bring home the guilt of accused in respect of offence U/s 381 IPC. Accordingly, he stands convicted for the said offence.
Announced in the open Court (VIDYA PRAKASH)
today on 31.05.2012 (ACMM1/NW/RC/DELHI)
FIR No.277/10 Page No. 33/33