Delhi District Court
State vs . on 25 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
WEST, TIS HAZARI COURTS,
NEW DELHI
Presided over by- Devanshu Sajlan, DJS
Cr. Case No. -: 5733/2017
Unique Case ID -: DLWT020122942017
No.
FIR No. -: 219/2017
Police Station -: Paschim Vihar
Section(s) -: 356/379 IPC
In the matter of -
STATE
VS.
JAI SHANKAR @ SHIVA
.... Accused
1. Name of Complainant : Sh. Nitin Vashisth
2. Name of Accused : Sh. Jai Shankar Saxena
Offence complained of or
3. : 356/379 IPC
proved
4. Plea of Accused : Not guilty
5. Date of registration of FIR : 04.08.2017 Date of filing of
6. : 06.09.2017 chargesheet
7. Date of Reserving Order : 09.01.2023
8. Date of Pronouncement : 25.01.2023
9. Final Order : Convicted Digitally signed by DEVANSH DEVANSHU SAJLAN Argued by: Sh. Dhirendra Yadav, Ld. APP for the State U SAJLAN Date: 2023.01.25 14:41:24 +05'30' Sh. Anil Kumar Sharma, Ld. LAC for the accused Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 1 of 13 BRIEF STATEMENT OF REASONS FOR THE DECISION-:
A. FACTUAL MATRIX:
1. The case of the prosecution is that on 04.08.2017, at about 07:15 PM, at Outer Ring Road, Near Peeragarhi Bus Stand, Paschim Vihar, Delhi within the jurisdiction of PS Paschim Vihar, the accused snatched the mobile phone (Oppo Model F1-S) of the complainant namely Nitin Vashisth in the bus having route no. 879 and handed over the same to his partner/co-accused (not traced during the investigation) who fled away from the spot.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under sections 356/379 IPC was framed against accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.01.25 14:41:45 +05'30' Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 2 of 13 beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : ASI Baljit Singh (Duty Officer) PW-2 : Sh. Nitin Vashisth (complainant) PW-3 : ASI Banwari Lal (IO) PW-4 : HC Bijender DOCUMENTARY EVIDENCE Ex. PW-1/A : FIR Ex. PW-1/B : Endorsement on Rukka Ex. PW-1/C : Certificate u/s 65B Ex. PW-2/A : Complaint of the complainant Ex. PW-2/B : Site plan Ex. PW-2/C : Seizure Memo of the Mobile Bill Ex.PW-2/D : Arrest Memo Ex. PW-2/E : Personal Search Memo of the accused Ex. PW-3/A : Rukka Ex. PW-3/B : Disclosure statement of accused STATEMENT OF ACCUSED-
5. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. The accused stated that he is innocent and has been falsely implicated in the present case. ARGUMENTS -
6. I have heard Sh. Dhirendra Yadav, Ld. APP for the State and Sh. Anil Kumar Sharma, Ld. LAC for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 14:42:00 +05'30' Date: 2023.01.25 Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 3 of 13
7. It is argued by learned APP for the State that all the ingredients of the offence are fulfilled in the present case and the State has proved its case beyond reasonable doubt since the complainant has categorically identified the accused during his testimony. As such, it is prayed that the accused be punished for the said offences.
8. Per contra, learned LAC for the accused has submitted the following on behalf of accused:
(i) The accused has been arrested by the police at the instance of the complainant based on mere suspicion. It has been further submitted that the accused has been falsely implicated in the present case and there is no corroborative evidence which can establish the version of PW-2/complainant Nitin Vashisth.
(ii) It has been further submitted that nothing has been recovered from the possession of the accused and in absence of any recovery, the case of prosecution is not made out.
(iii) It has been further submitted on behalf of accused that even as per prosecution story, the alleged incident happened in a bus and many public witnesses were present there, but the IO did not record the statement of even one public witness. It has been further submitted that PW-2 Nitin Vashisth had deposed that some person had called on 100 number, but the IO has not even recorded the statement of the person who called on 100 number.
(iv) It has been further submitted on behalf of accused that complainant has deposed that his statement was taken only once by the IO and hence, it is evident that the supplementary statement of DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 14:42:14 +05'30' Date: 2023.01.25 Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 4 of 13 the complainant under section 161 CrPC was not given by the complainant.
INGREDIENTS OF THE OFFENCE -
9. For commission of the offense of theft, the essential ingredients are: (i) There must be a dishonest intention of a person to take the property; (ii) the property must be movable; (iii) the property must be taken out of the possession of another person/complainant; (iv) the property must be taken without the consent of that person/ complainant; (v) There must be some moving of the property in order to accomplish the taking of it.
10. Further, for commission of offense under section 356 IPC, the following essential ingredients have to be fulfilled: (i) In attempting to commit theft, assault is caused, or criminal force is used; (ii) such assault or criminal force is used in attempting to commit theft of any property; (iii) such property must be either worn or carried by the person on whom assault is committed or criminal force is used.
11. From reading of Section 356 IPC, it is evident that offence under Section 356 IPC is complete when in order to commit theft of any property which is being carried by the complainant, assault or criminal force is used by the accused. Section 350 and 351 of IPC deals with the definition of criminal force and assault. Criminal force is defined as use of force against a person against his consent for the purpose of committing an offence or intending by use of force to cause injury.
12. Therefore, the prosecution was required to satisfy the Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 5 of 13 DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.01.25 14:42:34 +05'30' aforesaid ingredients to bring home the charge against the accused. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
13. The case of the prosecution hinges on the testimony of the star witness, PW-2 (Nitin Vashisth). PW-2 is the sole eyewitness cited by the prosecution in the list of witnesses and there are no other public eyewitnesses who were interrogated or made a witness in the present matter. PW2 has deposed to the effect that on 04.08.2017, he was standing at Peeragarhi Chowk to catch a bus for his home. He has further deposed that when he boarded the bus around 07:15 PM, the accused came from behind and snatched his mobile phone (Oppo Model F1-S) and handed over the same to his partner/co-accused who fled away from the spot with his mobile phone. The complainant has further submitted that he was able to apprehend the accused at the spot itself and after he cried for help, some unknown person called the police by dialling 100 number. He has further deposed that the accused was handed over to the police officials when they arrived at the spot. When the complainant was asked to identify the accused in the court, he duly and correctly identified him in the court during deposition. DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 14:42:57 +05'30' Date: 2023.01.25 Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 6 of 13
14. In his cross-examination, the complainant re-affirmed that the accused snatched the mobile phone from his hand. He further deposed that 10-15 public persons were present at the bus stand. Further, he deposed that he had given his statement only once to the police and that he does not remember the exact number of documents on which he signed.
15. The complainant's testimony clearly proves the version of the prosecution since complainant/PW2's testimony clearly mentions the use of criminal force upon the complainant by the accused in order to commit theft of the mobile phone of the complainant. The said testimony establishes all the ingredients of section 356 IPC and section 378 IPC (theft). After perusing the said testimony, I am of the considered opinion that the testimony of the complainant can be relied upon. The testimony of the complainant/PW2 has remained consistent with his statement given to the police. Further, the complainant has given complete details of the incident which took place on the fateful day whereby the accused snatched his mobile phone. The testimony of the complainant/PW2 has remained unshaken throughout examination and cross-examination. Learned LAC for the accused was not able to contradict the version of the complainant on any material count during the cross-examination. Therefore, there is no reason to doubt the testimony of the complainant, especially considering the fact that the complainant is an injured witness.
16. It is a settled position of law that the testimony of an injured witness is accorded greater value in law, due to the reason that such a witness would seldom implicate someone falsely and let Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 7 of 13 DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.01.25 14:43:17 +05'30' the real culprit go scot-free. In the case of Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, the Hon'ble Apex Court relying on its earlier judgments reiterated that special evidentiary status should be accorded to an injured witness. Relevant part of the judgement is reproduced as under:
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon. Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below.
17. A similar view was taken by the Hon'ble Apex Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, whereby the Hon'ble Apex Court discussed the evidentiary value of the testimony of an injured witness in the following words:
26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 8 of 13 Digitally signed DEVANSH by DEVANSHU SAJLAN U SAJLAN Date: 2023.01.25 14:43:31 +05'30' crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".
28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence.
Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
18. Accordingly, it is a settled position of law that the testimony of an injured witness is a highly corroborative piece of evidence. Unless 'highly compelling circumstances' are established on the basis of major contradictions and discrepancies, which cast a reasonable doubt over the statement of the injured witness, such statement can be safely relied upon by the Courts to convict the accused. Therefore, the testimony of PW2 needs to be accorded great weight considering the fact that he is an injured witness.
19. Accordingly, based on the aforesaid position of law, the accused was required to highlight/bring on record major contradictions/ discrepancies in the version of the complainant casting a reasonable doubt over the statement of the injured witness in order to establish his case for acquittal. In order to show the same, learned LAC for the accused has submitted that the complainant had deposed that the area around the spot where the incident occurred was crowded and despite many public witnesses being present at the spot at the time of commission of the alleged offense, no efforts were made by the IO to interrogate the DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 14:43:45 +05'30' Date: 2023.01.25 Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 9 of 13 independent public witnesses in order to corroborate the version of the complainant. It is argued that in view of this, story of prosecution must be viewed with suspicion.
20. This court finds this argument to be without any merit as PW3/IO/ASI Banwari Lal had specifically deposed in his cross- examination that he had asked public persons to join the investigation but no one joined the investigation and left without disclosing their names and addresses. It is pertinent to note that it is not uncommon for independent members of public to be reluctant to become witnesses in criminal proceedings. In fact, this exact contention was dealt in detail and rejected by the Hon'ble Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646:
12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the 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 PW 5 and PW 7.
This submission also deserves to be rejected. It is a 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 adjournments 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 of injured witnesses.
21. Further, the Hon'ble Supreme Court of India, in the case of State of UP v. Anil Singh, AIR 1988 SC 1998, has held that DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 14:44:02 +05'30' Date: 2023.01.25 Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 10 of 13 public are generally reluctant to come forward to depose before the court and that it is not correct to reject the prosecution version for want of corroboration by independent witnesses:
15. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. 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. 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 Bihari Maiti v. Matangini Dasi [AIR 1919 PC 157 : 24 Cal WN 626] the Privy Council had this to say (at p. 628):
"That in Indian litigation it is not safe to assume that a case must be a false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is, on some occasions, a tendency amongst litigants ....to back up a good case by false or exaggerated evidence."
22. Therefore, lack of joining of public witnesses cannot be termed as major discrepancy which can negative the testimony of the PW2/ complainant.
23. Moving on, deposition of the complainant that his statement was recorded only once by the IO cannot be termed as a material discrepancy or a major contradiction between the testimony of the complainant and the IO. The complainant may have forgotten the number of times his statement was recorded or on how many DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.01.25 14:44:18 +05'30' Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 11 of 13 documents he had signed due to passage of time. However, the complainant has remained firm in his deposition as far as the details of the incident are concerned. Further, failure of the IO to record the statement of the person who called on 100 number, can again not be termed as a material discrepancy which can throw out the case of the prosecution.
24. In any case, it is a settled position of law that defect in the investigation by itself cannot be a ground for acquittal and the court is required to examine the prosecution evidence, de hors such lapses, to find out whether such lapses affected the object of finding out the truth (see C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567). In this case, it has already been concluded that the testimony of the star witness/ complainant is reliable and has remained unshaken during cross-examination. Therefore, lapse on part of the IO to record the statement of caller who called on 100 number or any public witness cannot be said to be material enough to have affected object of finding out the truth in the present trial.
CONCLUSION -
25. To conclude, this court is of the opinion that the testimony of complainant is cogent and convincing. There is no reason to disbelieve or doubt the version given by the complainant. Accordingly, the prosecution has been able to prove its case beyond reasonable doubt.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 14:44:34 +05'30' Date: 2023.01.25 Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 12 of 13
26. Consequently, accused Jai Shankar is convicted for the offences punishable under section 356/379 IPC.
Pronounced in open court on 25.01.2023 in presence of the accused. This judgement contains 13 pages, and each page has been signed by the undersigned.
DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.01.25 14:45:19 +05'30' (DEVANSHU SAJLAN) Metropolitan Magistrate - 07 West District, Tis Hazari Courts, New Delhi/ 25.01.2023 Cr. Case No.5733/2017 State v. Jai Shankar @ Shiva Page 13 of 13