Delhi District Court
State vs Pawan Kumar Yadav on 28 July, 2020
IN THE COURT OF SH. ARUN KUMAR GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTH-WEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs.Pawan Kumar Yadav
FIR No. 758/2017
PS : Uttam Nagar
U/s 379/356/34 IPC
Date of Institution : 18.01.2018
Date of reserving of order : 06.03.2020
Date of Judgment : 28.07.2020
JUDGMENT
1. Serial No. of the case : 1376/2018 2. Name of the Complainant : Smt. Renu W/o Shiv Kumar
3. Date of commission of offence : 24.10.2017
4. Name of accused person : Pawan Kumar Yadav S/o Sh. Jhagru Prasad Yadav RZ-8, Gali No. 5, Nagli Vihar, Najafgarh, New Delhi.
Permanent Address: House No. 216, Vill. Sugawagar, PS Maharaj Ganj, Tarai, Distt. Balram Pur UP
5. Offence charged : U/s 379/356 IPC
6. Plea of accused : Not guilty
7. Final Order : Convicted BRIEF REASONS FOR ORDER:
1. The accused has been chargesheeted for committing offences punishable under Section 379/356/34, Indian Penal Code (45 of 1860) State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar ARUN Digitally signed by ARUN KUMAR Judgment dated 28.07.2020 KUMAR GARG Date: 2020.07.28 Page 1 of 11 GARG 18:22:55 +05'30' (hereinafter referred to as "IPC").
2. Brief case of the prosecution as per the chargesheet is that the present FIR was registered on the complaint of Mrs. Renu, W/o Sh. Shiv Kumar dated 24.10.2017. The complainant has alleged that on 24.10.2017, at about 08:15 am, she was going to Munni International School on foot for dropping her children. When she reached near the school, two boys on a black pulsar motorcycle had run away after snatching her gold chain of about 2 tolahs. The aforesaid boys, according to complainant, were not wearing the helmet and their age were around 22-24 years. She has further stated that she could identify the said boys.
3. During investigation, on 16.11.2017, information was received by the IO from PS Bindapur to the effect that two accused namely Pawan Kumar Yadav and Avdhesh Kumar Yadav had been apprehended in case pertaining to FIR No.841/2017 and that they had disclosed having committed the offence in the present FIR. IO had thereafter formally arrested accused Pawan Kumar Yadav, Avdhesh Kumar Yadav and Manoj Kumar Soni after seeking permission from the court. Judicial TIP of accused Pawan Kumar Yadav and Avdhesh Kumar Yadav were thereafter conducted wherein complainant has identified accused Pawan Kumar Yadav however she could not identify accused Avdhesh Kumar Yadav. IO has thereafter got the accused Avdhesh Kumar Yadav and Manoj Kumar Soni released for want of evidence against them and has chargesheeted the accused Pawan Kumar Yadav for the offence U/s 379/356/34 IPC.
4. Cognizance of offence was taken by Ld. Predecessor of this court vide order dated 18.01.2018 and after compliance with the provisions of Section 207 Cr.P.C, charge U/s 356/379 IPC was framed against the present accused vide order dated 12.02.2018. Accused did not plead State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 28.07.2020 KUMAR KUMAR GARG Date: 2020.07.28 Page 2 of 11 GARG 18:23:09 +05'30' guilty to the charge and claimed trial.
5. Prosecution has thereafter examined seven witnesses to prove its case.
6. Complainant, Ms. Renu Chauhan has been examined by the prosecution as PW-1. She has deposed that on 24.10.2017 at about 08:15 am, she was going to drop her children at Munni International School near Gandhi chowk on foot and when she reached near school, she saw two persons on a black pulsar motorcycle who were tying handkerchief on their faces but she had seen their faces. She had seen whole face of the pillion rider. She had identified accused Pawan Kumar Yadav as one who had actually snatched her chain measuring 2 tolas.
She further deposed that thereafter she made PCR call and gave complaint Ex.PW1/A to the police. Subsequently, according to her, she had identified accused before the judge in TIP proceedings which were already Ex.P-1 in terms of statement of accused U/s 294 Cr.P.C dated 23.03.2018.
7. DO WHC Suman Rani has been examined by the prosecution as PW-2 and she has proved the FIR Ex.PW2/A and her endorsement on rukka as Ex.PW2/B, besides certificate U/s 65 B of Indian Evidence Act as Ex. PW2/C in support of FIR as Ex. PW2/A.
8. HC Surender Singh, who had joined the investigation with the IO in FIR no.841/17, PS Bindapur on 14.11.2017 and had arrested the accused Pawan Kumar Yadav, has been examined as PW-3 and he has relied upon arrest memo Mark-A and disclosure statement Mark-B.
9. HC Satender, who had joined the investigation alongwith IO ASI Jai Pal on 24.10.2017 has been examined by the prosecution as PW-4. He has deposed that on 24.10.2017 on receipt of DD No.24A regarding State Vs. Pawan Kumar Yadav ARUN Digitally signed by ARUN KUMAR FIR No. 758/2017 PS Uttam Nagar Judgment dated 28.07.2020 KUMAR GARG Page 3 of 11 Date: 2020.07.28 GARG 18:23:20 +05'30' snatching, he alongwith ASI Jai Pal reached at H.No.50 Sainik Vihar, Phase-III, where complainant narrated the incident and IO after recording her statement prepared a rukka which was handed over to him for registration of case. On the basis of rukka, he got the case registered and returned to spot, however, accused could not be traced out.
10. ASI Jai Pal, who had prepared the rukka has been examined as PW-5 and he has deposed that on 24.10.2017, on receipt of DD No.24A, he alongwith PW-4 reached at the spot where he met the complainant. Complainant had given the statement on the basis of which, he prepared tehrir Ex.PW5/A and got the FIR registered through HC Satender whereafter, investigation was entrusted to HC Ashok.
11. IO HC Ashok has been examined by prosecution as PW-6. He deposed that on receipt of FIR, he went to the spot, recorded supplementary statement of complainant and looked for CCTV footage but could not found. Thereafter, on 16.11.2017, he received intimation from PS Bindapur regarding disclosure made in respect of the present case. On 22.11.2017, he arrested the accused Pawan Kumar Yadav in the court. He had also arrested the remaining accused but they were later discharged. He proved the arrest memo of accused Pawan Kumar Yadav as Ex.PW6/A and site plan as Ex.PW6/B. He further deposed that the case property could not be recovered.
12. Sh.Dinesh Kumar, JJA/Ahlmad from the court of Ms. Pridhi Gupta, Ld. MM, has been examined as PW-7. He has produced the original file pertaining to FIR no.841/17 containing the arrest memo and disclosure statement which were Mark-A and B and same were accordingly endorsed as Ex.PW7/A and Ex.PW7/B after comparison with the original.
13. All the aforesaid witnesses were duly cross-examined by Ld. LAC State Vs. Pawan Kumar Yadav ARUN Digitally signed by ARUN FIR No. 758/2017 PS Uttam Nagar Judgment dated 28.07.2020 KUMAR KUMAR GARG Page 4 of 11 Date: 2020.07.28 GARG 18:23:31 +05'30' for accused. No other witness has been examined on behalf of prosecution and hence, PE was closed vide order dated 14.01.2020.
14. Statements of accused U/s 313 Cr.P.C was thereafter recorded on 25.02.2020, after putting entire incriminating evidence to the accused. Accused has stated that he had not snatched the chain of the complainant and in fact was picked up from his residence. After torturing him, his signatures were obtained by the police on blank papers. After his arrest, the IO has tried to persuade him to refuse to participate in TIP proceedings, however, he agreed to participate in TIP proceedings, whereafter complainant had identified him at the instance of IO as the IO had clicked his photographs and had forwarded the same to the complainant. He had further stated that witnesses have deposed at the instance of some bad elements of the locality and he has been falsely implicated in the present case. The accused chose not to lead any evidence in his defence and accordingly, the matter was adjourned for final arguments.
15. Final arguments on behalf of State as well as the accused were thereafter heard.
16. It was submitted by Ld.APP for State that the prosecution has been able to prove his case beyond reasonable doubt on the basis of uncontroverted testimonies of PW-1 to PW-7 and the accused should thus be convicted for the offence U/s 356/379 IPC.
17. On the other hand, Ld. LAC for accused has tried to point out various discrepancies in the testimonies of different prosecution witnesses so as to allege that the case of prosecution is fraught with contradictions, which create reasonable doubts about the veracity of the prosecution story and hence the accused is entitled to be acquitted of all State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 28.07.2020 KUMAR KUMAR GARG Date: 2020.07.28 Page 5 of 11 GARG 18:23:42 +05'30' charges.
18. It is submitted by him that as per tehrir Ex.PW1/A the accused were wearing helmet whereas in her deposition before the court, PW-1 has tried to create another story that they were tying their faces with handkerchiefs. He submits that the complainant has failed to disclose as to whether the accused was driving the motorcycle or he was the pillion rider. It is further contended by him that complainant could not explain as to how she noticed accused in such a hotch potch particularly when they were coming from the back side. Admittedly, according to him, no recovery has been effected by the IO from the accused and in fact, as per IO, the complainant has failed to produce any bill or photograph of the chain allegedly snatched by the accused, whereas, complainant has stated that she had shown the bill of the aforesaid chain to the IO. He submits that as per IO, he has called the complainant only once for recording of her supplementary statement, whereas complainant says that she has visited the police station 3 to 4 times in relation to the present case. The aforesaid 3 to 4 times, according to him, could be the occasions when the photographs of accused were shown to the witness, on the basis of which, she had identified the accused during the TIP proceedings. He submits that it is not clear from the testimony of PW-1 as to who had made the PCR call and IO had failed to collect any CCTV footage from the place of incident nor has he recorded the statements of independent witnesses regarding the incident. He has thus prayed for acquittal of the accused from all the charges.
19. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record.
20. It is well settled legal position that in a criminal case, the burden of State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar ARUN Digitally signed by ARUN KUMAR Judgment dated 28.07.2020 KUMAR GARG Page 6 of 11 Date: 2020.07.28 GARG 18:23:53 +05'30' proof is always on the prosecution and prosecution is required to prove its case beyond reasonable doubts. Benefit of reasonable doubt and not fanciful doubt should always go to the accused.
21. In the case in hand, the complainant in her complaint Ex.PW1/A, has specifically stated that two boys aged about 22-24 years, riding on a black pulsar motorcycle had snatched her gold chain measuring about 2 tolas and since they were not wearing the helmet, she could identify the said boys. Subsequently, within a month, the accused was apprehended in another case pertaining to FIR No. 841/2017 PS Bindapur and his judicial TIP was got conducted by the IO on 19.12.2017 vide TIP proceedings Ex.P-1. As per aforesaid TIP proceedings, complainant has correctly identified the accused to be the person who had snatched her chain.
22. No doubt, the identification of accused by the complainant during the aforesaid TIP proceedings, by itself cannot be considered to be a substantial piece of evidence on the basis of which accused can be convicted, however, it is significant to note that the complainant was examined by the prosecution as PW-1 and during her examination in chief, she has once again identified the accused as the person who had snatched her chain. The aforesaid testimony of the complainant is duly corroborated by the TIP Proceedings Ex. P-1.
23. LAC for accused has tried to take benefit of a statement made by PW-1 in her examine in chief that the boys, who had snatched her chain on the date of incident, were tying handkerchief on their faces, whereas, original complaint Ex. PW-1/A of the complainant is silent in this regard. A perusal of complaint Ex. PW-1/A shows that the submission of Ld. Counsel for accused regarding the complainant having made a statement State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar ARUN Digitally by ARUN signed Judgment dated 28.07.2020 KUMAR KUMAR Date:
GARG Page 7 of 11GARG 2020.07.28 18:24:03 +05'30' in complaint Ex. PW-1/A that accused were wearing the helmets is contrary to record. In fact, the complaint specifically mentions that since the accused were not wearing helmets she would be able to identify them.
24. Merely because, the complainant has not stated in her complaint Ex. PW-1/A that the accused were tying handkerchiefs on their faces and despite that she had seen their faces, I do not see any discrepancy in the statement of PW-1 vis a vis her complaint to the police. The fact of the matter is that at both the stages i.e. in her complaint as well as her examination in chief, the complainant has categorically stated that she would be able to identify the accused since, as per complaint, they were not wearing helmets and, as per her examination in chief, though they were tying handkerchiefs but she had seen their faces, more particularly, she had seen the full face of the pillion rider.
25. Thus, it is clear from the statement of complaint Ex.PW1/A as well as her testimony in the court that she had seen the faces of the chain snatchers and hence, was able to identify the accused. So far as the contention of Ld. LAC regarding impossibility of identification of accused by the complainant, in view of the fact that accused had admittedly come from the back side of complainant, is concerned, it is significant to note that PW-1 in her cross-examination has explained that she had seen the accused, who had parked the bike on the left side of the road in slightly started condition. Thus, in my considered opinion, complainant had seen the accused waiting on the bike on the left side of the road immediately before snatching of the chain.
26. It is next contended by Ld. LAC for accused that, in her examination in chief, the complainant has deposed that PCR call was State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar ARUN Digitally signed by ARUN KUMAR Judgment dated 28.07.2020 KUMAR GARG Page 8 of 11 Date: 2020.07.28 GARG 18:24:14 +05'30' made by her, however, in her cross-examination, firstly she deposed that PCR call was made by her however later on she stated that the same was made by her brother in law. In view of the identification of accused by the complainant in the docket, which is corroborated by TIP proceedings Ex.P-1, in my considered opinion, the minor discrepancy regarding the identity of the person who had made the PCR call, is not sufficient to render the complainant any less creditworthy.
27. Similarly minor discrepancies in the version of police witnesses as well as the complainant regarding the place of recording of statement of complainant would not be sufficient to throw away the entire case of prosecution. Non-examination of public witnesses from the place of incident, in my considered opinion, by itself it not sufficient to doubt the unimpeachable testimony of PW-1 in the court in as much as it is the quality of evidence which matters and not the quantity of evidence.
28. No doubt the IO has not collected the bill of the chain allegedly snatched from the person of complainant by the accused nor has he obtained the photograph thereof, however, the aforesaid fact by itself is not sufficient to disregard the testimony of PW-1 regarding snatching of her chain by the accused. More So, when the accused has failed to impute any motive/previous enmity to the complainant which would have led to his false implication by the complainant.
29. It was the next contented by counsel for accused that complainant has even failed to identify whether the accused Pawan Kumar Yadav was driving the motorcycle or he was a pillion rider. Considering the fact that the complainant has identified the accused as the person who had actually snatched her gold chain, in my considered opinion, non identification by her of accused as driver or as pillion rider is of no State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 28.07.2020 Page 9 of 11 KUMAR KUMAR GARG Date: 2020.07.28 GARG 18:24:24 +05'30' significance particularly when no such suggestion was put to the witness during her cross-examination so as to ascertain whether the complainant actually knew the aforesaid fact or not.
30. Though it has been alleged by the accused in his statement u/s 313 Cr.P.C. that the witnesses have deposed at the instance of some bad elements of the society, however, the said allegations are as vague as the same could have been. Further, though it has been contended by Ld. LAC for accused that the complainant has identified the accused at the instance of the IO, who had shown the photographs of accused to the complainant before the TIP proceedings, however, it is difficult to believe as to why the complainant, whose chain had been stolen, would have falsely implicated the accused at the instance of IO while screeing the actual offender. Besides, had there been any truth in the said allegation of accused rgarding identification of accused by the complainant at the instance of IO, the complainant would also have identified another accused Awdhesh Yadav during the TIP Proceedings. There was no occasion for the complainant to identify the accused at the instance of IO particularly when she had no incentive in the form of recovery of her gold chain.
31. PW-2 to PW-6 were merely formal witnesses and minor discrepancies in their testimonies as to the time and place of recording of the statement of complainant and similar other discrepancies are not sufficient to throw away the entire case of prosecution which, in my considered opinion, stands proved through the unimpeachable testimony of PW-1, which stands corroborated from the TIP proceedings as well as the original tehrir Ex.PW1/A. ARUN Digitally signed by ARUN KUMAR KUMAR GARG Date: 2020.07.28 State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar GARG 18:24:36 +05'30' Judgment dated 28.07.2020 Page 10 of 11
32. In view of the aforesaid facts and circumstances, in my considered opinion, the prosecution has been able to prove its case U/s 356/379 IPC against the accused beyond reasonable doubts. Accused is thus convicted for the offence U/s 356/379 IPC.
33. Ordered Accordingly.
Pronounced on this 28th day of July, 2020 through VC. This order consists of 11 digitally signed pages.
ARUN Digitally signed by
ARUN KUMAR
KUMAR GARG
Date: 2020.07.28
GARG 18:24:50 +05'30'
(ARUN KUMAR GARG)
Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi State Vs. Pawan Kumar Yadav FIR No. 758/2017 PS Uttam Nagar Judgment dated 28.07.2020 Page 11 of 11