Delhi District Court
Cr. Case/7906/2021 on 28 July, 2022
IN THE COURT OF MS.RUBY NEERAJ
KUMAR, ACMM, WEST, TIS HAZARI COURTS,
DELHI
State v. Rahul @ DK
FIR No. 27/2021
u/s 356/379/34 IPC
PS: Patel Nagar
Unique Case I.D No. DLWT02-012338/2021
JUDGMENT
Serial No. of the case 7906/2021
Date of commission of offence 07.02.2021
Date of institution of case 26.08.2021
Name of the complainant Ms. Urvashi
Name of Accused, parentage Rahul @ DK
& Address S/o Sh. Pradeep Kumar
R/o H.No. T-121, Punjabi Basti,
Baljeet Nagar, Delhi.
Offence complained Section 379/356/34 IPC
Plea of Accused Pleaded not guilty
Date of Arguments 23.07.2022
Final Order Convicted u/s 356/379 r/w 34 IPC
Date of Judgment 28.07.2022
BRIEF FACTS
1. Concise facts of the case as elucidated by the prosecution are that on 07.02.2021 at about 05:00 pm at 7/5, West Patel Nagar, Delhi within the jurisdiction of PS Patel Nagar, accused Rahul @ DK alongwith co-accused Deepu (since not apprehended) FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 1 of 16 while, riding on a scooty make Activa (Grey colour), in furtherance of their common intention, committed theft of one gold chain belonging to Complainant/ PW-1 Urvashi by using criminal force. On receiving DD No. 41-A dated 07.02.2021 regarding the said incident, Investigating Officer/PW-2 ASI Ramesh Chandra reached at the spot along with Constable Sunil (since deceased) and recorded the statement of Complainant/PW-1, which is Ex.PW-1/A. On the basis of the statement of the Complainant/PW-1, PW-2/ IO prepared the rukka and handed over the same to Constable Sunil for registration of FIR. On the basis of the said complaint, present case FIR i.e. Ex.A-1 was registered under section 379/356/34 IPC. PW-2/IO prepared the site plan at the instance of the Complainant, which is Ex. PW-1/B. Allegedly, during investigation of the present case, on 26.06.2021, accused Rahul @ DK was arrested in case FIR no. 355/21 registered under section 25 Arms Act, 1959 at PS Keshav Puram and therein, he disclosed having committed the offence in the present case vide disclosure statement Ex. PW-4/A. PW-2/IO formally arrested the accused, in the present case, vide arrest memo Ex. PW-2/B and recorded his disclosure statement, which is Ex. PW-2/A. On 06.07.2021, Sh. Sahil Gupta, Ld. MM conducted Test Identification Parade of the accused and therein, the accused was correctly identified by the Complainant/PW-1. The accused has not disputed the TIP proceedings and the same is Ex.A-3. It is further the case of the prosecution that despite efforts neither the case property nor the co-accused could be traced.
FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 2 of 162. Investigation was concluded and chargesheet was filed in the court. Cognizance of the offence was taken and copy of chargesheet was supplied to the accused in compliance of section 207, Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C').
3. Arguments on charge were heard and vide order dated 23.09.2021 charge for offence under section 356/379 r/w 34 IPC was framed against the accused. The accusation was read over and explained to the accused to which he pleaded not guilty and claimed trial.
EVIDENCE RECORDED DURING TRIAL
4. The prosecution has examined five witnesses to substantiate the allegations levelled against the accused.
5. PW-1 Urvashi is the complainant. She entered the witness box and deposed that on 07.02.2021 at about 05:00 pm, she was parking her scooty outside her shop situated at 7/5, West Patel Nagar, Delhi. Suddenly, two boys came on a grey colour scooty and the boy sitting at the pillion seat snatched her gold chain and they both fled away from the spot. She has deposed that she could not note down the Registration no. of the said scooty but she can identify the accused persons. She has further deposed that she participated in the TIP proceedings conducted at Tihar Jail and identified accused Rahul @ DK before Ld. MM. She has further deposed that she gave her statement to the IO/PW-2 but she could not produce any ownership document or invoice FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 3 of 16 regarding the said gold chain as her mother-in-law had gifted it to her. Further, in her cross- examination she has stated that the entire incident got recorded in the CCTV camera installed at the near by Law Office and the same was also seen by the police official.
6. PW-2 ASI Ramesh Chandra is the Investigating Officer of the present case. He entered the witness box and deposed that on 07.02.2021, on receiving DD No. 41-A regarding the alleged incident, he alongwith Constable Sunil (since deceased) reached at the spot and recorded the statement of the Complainant/PW-1 i.e. Ex.PW-1/A. He got the FIR registered by sending rukka at Police Station through Constable Sunil (since deceased) and prepared the site plan i.e. Ex. PW-1/B at the instance of the Complainant/PW-1. He has deposed that no relevant CCTV footage of the incident could be found. He has further deposed that on 26.06.2021, information was received at PS Patel Nagar regarding arrest of accused Rahul @ DK in case FIR no. 355/21 registered under section 25 Arms Act, 1959 at PS Keshav Puram and disclosure made by him therein, regarding commission of offence in the present case. He has deposed that he interrogated the accused at Tihar Jail and formally arrested him vide arrest memo Ex. PW-2/B and recorded his disclosure statement i.e. Ex. PW-2/A.
7. PW-3 Constable Vijay Pal and PW-5 ASI Arun Tomar have both deposed on similar lines to the effect that the accused having been found in possession of one country made pistol was FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 4 of 16 arrested in case FIR no. 355/21 registered under section 25 Arms Act, 1959 at PS Keshav Puram vide arrest memo Ex. PW- 4/B. They have deposed that the disclosure statement of the accused was recorded in the said case i.e. Ex. PW-4/A and therein, he disclosed having committed the offence in the present case.
8. PW-4 Sandeep, Ahlmad of the court of Sh. Vaibhav Chaurasiya, Ld. MM-04, West, Tis Hazari Courts, Delhi, produced the original disclosure statement, arrest memo and personal search memo of the accused in case FIR No. 355/21 registered under section 25 Arms Act, 1959 at PS Keshav Puram.
9. It is pertinent to mention herein that during the course of trial, vide separate statement recorded on 20.05.2022, in accordance with the provisions of Section 294 of Cr.P.C, accused admitted the registration of present case FIR no. 27/2021 dated 07.02.2021 registered under section 379/356/34 IPC at PS Patel Nagar i.e. Ex. A-1, Certificate under section 65-B of Indian Evidence Act i.e. Ex.A-2 and TIP proceedings dated 06.07.2021 i.e. Ex.A-3. In view of the admission made, Duty Officer, Head Constable Biju K V & Sahil Gupta, Ld. MM were dropped from the list of witnesses. Further, PW Constable Sunil was also dropped from the list of witnesses having expired.
10. PE was closed on 30.06.2022. Statement of accused under section 313 r/w 281 Cr. P.C was recorded on 06.07.2022 wherein, all the incriminating evidence were put to the accused. In his statement recorded under section 313 r/w 281 Cr.P.C, FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 5 of 16 accused has stated that he has been falsely implicated in the present case and the police officials have made him a scapegoat to solve the present case. Accused stated that he does not want to lead any evidence in his defence. Accordingly, matter was straight away fixed for final arguments.
11. I have heard the rival contentions of Ld. APP for the State as well as Ld. Legal Aid Counsel for the accused and carefully perused the entire material available on record.
ARGUMENTS ADVANCED
12. Arguments advanced by Ld. Legal Aid Counsel for the accused are threefold. Firstly, he has argued that despite the place of incident being a public place not a single public person has been examined by the prosecution to corroborate the testimony of Complainant/PW-1. His second argument is to the effect that neither the stolen property was recovered from the possession of the accused nor the proof of ownership of the stolen article has been placed on record by the Complainant/PW-1. Thirdly, he has argued that there are material discrepancies in the testimony of PW-1/Complainant and PW-2/IO regarding the CCTV footage of the incident, which strikes at the credibility of the prosecution witnesses. He has further argued that the accused has been falsely implicated in the present case and the prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore, accused deserves to be acquitted of the alleged offence.
FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 6 of 1613. Ld. APP for the State has submitted that the Complainant/PW-1 has correctly identified the accused during the trial as well as in TIP proceedings and her testimony stands corroborated by testimony of PW-2/IO. He has argued that cumulative reading of testimony of all the prosecution witnesses unmistakably points towards the guilt of the accused. Ld. APP for the State has contended that the prosecution has proved its case against the accused beyond reasonable doubt and therefore, accused deserves to be convicted and sentenced as per law. He has further submitted that the discrepancies pointed out by the Ld. defence counsel in the testimony of PW-2 are minor in nature and does not strike at the root of the prosecution's case.
BRIEF REASONS FOR THE DECISION
14. In the instant case accused has been charged for offence punishable under section 379/356 r/w 34 IPC. Before proceeding further on merits of the case, it would be apposite to first refer to the provisions of law for which charge has been framed against the accused.
15. Section 379 IPC specifically provides punishment for the offence of theft defined under section 378 IPC. Section 378 IPC defines theft as: "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moved that property in order to such taking, is said to commit theft." Thus, in order to bring home the guilt of the accused for committing offence punishable under section 379 IPC, prosecution is required to prove that the FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 7 of 16 accused dishonestly removed the stolen articles from the possession of Complainant/ PW-1 without her consent.
16. Further, Section 356 IPC provides punishment for using criminal force in attempt to commit theft of property carried by a person, enunciating therein, "Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". As per Section 349 IPC, a person is said to use force on another when he causes motion, change of motion, or cessation of motion to that other, if he causes to any substance such motion, change of motion or cessation of motion as brings it in the contact with any part of that other's body, or with anything, which that other is wearing or carrying, or with anything so situated that such contact which affects the other's sense of feeling. This should be done by his own bodily power or by use of some substance or by inducing any animal to change the motion. Section 350 IPC further enunciates that the use of force will become criminal when it is done against the consent of any person with the intention of committing an offence, or to cause injury, fear or annoyance.
17. Adverting to the evidence brought on record by the prosecution, the entire case of the prosecution hinges upon the testimony of Complainant/PW-1 Urvashi as she is the only eyewitness of the alleged offence. It is well settled principle of law that conviction FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 8 of 16 can be based on the sole testimony of the complainant, if it's reliable and free from blemishes. A bare reading of her testimony reveals that the accused dishonestly & forcefully removed the case property from her possession without her consent. She has correctly identified the accused during trial as the one who had snatched the gold chain from her neck. She has further, correctly identified the accused during the TIP proceedings. PW-1/ Complainant was cross examined by Ld. Legal Aid Counsel for the accused but nothing material could be elicited therefrom, which could cast a doubt on the veracity or truthfulness of her statement. Moreover, testimony of PW-2/IO corroborates the testimony of PW-1/ Complainant in all material particulars and thus, I do not find any reason to doubt the testimony of the PW-1/ Complainant.
18. As regards the argument advanced by Ld. Legal Aid Counsel for the accused that in the instant case not a single public person has been examined or arrayed as a witness by the prosecution to corroborate the prosecution's case, it is pertinent to mention that non-examination of public person is not fatal to the case of the prosecution as observed by the Hon'ble Supreme Court in the decision reported as Sarwan Singh v. State of Punjab, (2003) 1 SCC 240:-
"As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad and Anr. v. State (Delhi Admn.) (2002) 2 SCC 646, wherein this Court in paragraph 12 observed:
"12.It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 9 of 16 incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW5 and PW7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or 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. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournment in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence ...."
19. In State of U.P v. Anil Singh; AIR 1988 SC 1998), the Hon'ble Supreme Court while dealing with similar contention observed as under:
"In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out 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, 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. The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available - if they are so, the prosecution should be able to prove the case with their assistance."FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 10 of 16
20. From the afore-noted judicial decisions, the legal position that can be culled out is that the factum of non-examination of public/independent witnesses is not fatal to the case of the prosecution in every case. It depends upon the additional factor whether the evidence led by the prosecution inspires confidence or not. If the evidence led by the prosecution is otherwise credible and trustworthy, the non-examination of independent/public witness is of no consequence. Moreover it is settled principle of law that it is the quality and not the quantity of evidence that is necessary for the prosecution to prove its case and there is no mandatory rule or law that non-examination of public witness in all circumstances would vitiate the trial.
21. Further, I do not find force in the argument of Ld. Legal Aid Counsel that neither the case property was recovered from the accused nor the prosecution has proved that the Complainant/PW-1 was the owner of the alleged gold chain. It is settled position of law that recovery of stolen property is not sine qua non to prove the commission of theft by the accused. Mere non-recovery of the stolen property from the accused will not vitiate the case of the prosecution if, the testimonies of the witnesses steadfastly points towards the guilt of the accused. Further, in case of theft, it is not the factum of ownership rather, possession that creates the offence. To prove the offence of theft, it is irrelevant as to who is the owner of movable property. Mere removing of articles from the possession of other with dishonest intention and without her consent, amounts to theft.
FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 11 of 16Thus, it is not necessary that the complainant should be the owner of the stolen articles. Her merely being in possession of the same is sufficient to establish the offence.
22. Further, it is argued by the Ld. Legal Aid Counsel for accused that the Complainant/PW-1 has deposed in her evidence that the entire incident got recorded in the CCTV camera installed at the nearby Law Office however, PW-2/IO has deposed that no relevant CCTV footage was found. It is argued that the said contradiction in the deposition of the prime witnesses points towards the falsity of the prosecution's case.
23. The question, which thus arises for consideration, is, what is the effect of abovementioned discrepancy in the testimony of PW-1 & PW-2, on the veracity & credibility of the prosecution's case.
24. On this aspect, suffice would be to note the following observations of the Hon'ble Supreme Court in the decision reported as State of UP v Anil Singh; AIR 1988 SC 1998:-
"With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini 24 C.W.N. 626 PC, the Privy Council had this to say (at 628):
That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence.
18. In Abdul Gani v. State of Madhya Pradesh AIR 1954 SC 31 Mahajan, J. speaking for this Court deprecated the tendency of courts to take an easy course of holding the FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 12 of 16 evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
19. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
25. Further, the Hon'ble Supreme Court in the decision reported as Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra; AIR 1973 SC 2622 made the following observations:-
"When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered."
26. In view of the aforesaid dictums, it cannot be said that the said discrepancy in the testimony of Complainant/PW-1 & PW-2/IO has created a doubt on their credibility and veracity of the evidence of other witnesses of the prosecution.
27. Further, non- seizure of the CCTV footage if, available amounts to an error on the part of investigating agency. It is the responsibility of the Investigating officer to collect all the FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 13 of 16 relevant evidence necessary to prove the prosecution's case. Be that as it may, it is well settled that if certain dodges have been left by the investigating agency that alone shall be no reason for rejecting the prosecution's case as a whole, if the account given by the principle eye witness is natural in the circumstances and there is little reason to doubt its intrinsic credibility, and no reason is suggested as to why the witness would falsely implicate the accused leaving out the real culprits. There is absolutely no reason to discard the testimony of PW-1.
28. In this regard reliance can be placed upon judgment of the Hon'ble Supreme Court in case titled as Paras Yadav and Ors. v. State of Bihar, 1999 (1) SCR 55 wherein, it was held that "if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party."
29. It was also observed in Ram Bihari Yadav v. State of Bihar and Ors., 1998 (4) SCC 517 that "if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice."
FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 14 of 1630. Having dealt with all the objections raised by the Ld. Legal Aid Counsel for the accused and reverting back to the testimony of Complainant/PW-1, I am of the opinion that in the facts and circumstances of the instant case, Complainant/ PW-1 is a material as well as the only eye witness to the alleged offence of theft by use of criminal force and therefore, her testimony cannot be discarded unless it is inconsistent and doubtful. Further, perusal of the testimony of PW-1 shows that the accused alongwith co-accused (since not apprehended), in furtherance of their common intention, snatched the gold chain of the complainant/PW-1 from her possession without her consent and fled away with the same. The Complainant/PW-1 has withstood the test of cross examination. Nothing could be extracted therefrom, which would create doubt on the truthfulness of her testimony. Further, cumulative and harmonious reading of the testimony of all the prosecution witnesses manifestly, point towards the guilt of the accused. Moreover, in the cross examination of PW-1, no reason was suggested as to why will she falsely involve the accused in this case. No previous enmity or acquaintance between the parties has been suggested in the entire cross examination. In these circumstances, I do not find any reason to disbelieve the unblemished testimony of the Complainant.
31. Further, it is the case of the prosecution that the accused was arrested in case FIR no. 355/21 PS Keshav Puram vide arrest memo Ex.PW-4/B wherein, he disclosed having committed offence in the present case vide disclosure memo Ex.PW4/A. FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 15 of 16 Through testimony of PW-3, PW-4 & PW-5, prosecution has duly proved the arrest memo & disclosure statement of accused in case FIR no. 355/21. The Complainant/ PW-1 as well as the other witnesses has duly identified the accused in the court. The site plan of the place of occurrence i.e Ex. PW-2/B has been duly proved by the prosecution. Consequently, the explicit and unequivocal testimony of Complainant/ PW-1 and evidence brought on record by the prosecution unmistakably points towards the guilt of the accused.
32. Keeping in view the above discussed facts, circumstances and evidence adduced in the instant case, this court is of the considered view that the prosecution has successfully proved all the ingredients of the alleged offence. In view thereof, accused Rahul @ DK S/o Pradeep Kumar is hereby convicted for offence under section 379/356 r/w 34 IPC.
33. Accused be heard separately on the point of sentence.
Digitally signedRUBY by RUBY NEERAJ NEERAJ KUMAR Date: KUMAR 2022.07.28 16:41:10 +0530 Announced in open court (Ruby Neeraj Kumar) on this 28th July, 2022 ACMM(West)/THC/Delhi FIR No. 27/2021 State v. Rahul @ DK PS Patel Nagar Page 16 of 16