Delhi District Court
State vs . Sanjay on 8 August, 2018
IN THE COURT OF MS. CHETNA SINGH:ACMM-02
(CENTRAL) TIS HAZARI COURTS, DELHI
STATE Vs. SANJAY
FIR No. 194/16
New Case No. 46/17
U/s : 392/411/34 IPC
P.S. : Gulabi Bagh
Date of Institution : 30.12.2016
Date on which case reserved for Judgment : 08.08.2018
Date of judgment : 08.08.2018
JUDGMENT
1.FIR No. of the case : 194/2016
2.Date of the Commission : 03.11.2016
of the offence
3.Name of the accused : SANJAY
S/o Sunil Kumar,
R/o H. No. 10670, Gali No.8, Andha
Mugal, Pratap Nagar, Delhi.
4.Offence complained of : 392/411/34 IPC
FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 1 / 16
5.Plea of accused : Pleaded not guilty
6.Final order : Convicted.
BRIEF FACTS
1. The story of the prosecution is that on 03.11.2016 at 2.15 PM, near railway line, over under pass, Gulabi Bagh within the jurisdiction of PS Gulabi Bagh, the accused alongwith two other co-accused (since not apprehended) in furtherance of their common intention committed theft by forcefully taking away mobile phone make Micromax (colour black) bearing IMEI No. 911470956663689, 911470956663697 & Adhar Card from the right side pocket of the trouser of the complainant Sh. Pradeep Paswan and while committing theft of abovesaid articles, he alongwith co-accused, wrongfully restrained the complainant and dishonestly received/retained the abovesaid mobile phone and Adhar Card (stolen property ) belonging to the complainant knowing or having reason to believe that such property was stolen property and thereby committed offences punishable u/s 392/411/34 IPC. The matter was investigated and chargesheet was filed in the Court on 30.12.2016.
2. On the basis of the chargesheet, charge of offences punishable u/s 392/411/34 IPC was framed against accused Sanjay and the charge was duly explained to him in vernacular to which he pleaded not guilty and claimed trial on 18.01.2017. Thus, the matter was put to trial.
FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 2 / 16APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused, the prosecution examined 5 witnesses in total.
4. PW-1 ASI Shanti Ram deposed that on 03.11.2016, he was posted as ASI at PS Gulabi Bagh as duty officer from 8.00 AM to 8.00 PM. He had received rukka from Ct. Nawal Kishore at about 4.10 PM and registered the FIR and handed over the Tehrir and copy of FIR Ex.PW1/A (OSR) bearing his signature at point A to Ct. Nawal Kishore for further course of action. He also made endorsement on the rukka from point A1 to A2 which is Ex.PW1/B, bearing his signature at point A and issued certificate under section 65-B of Indian Evidence Act, which is Ex.PW1/C, bearing his signature at point A. This witness was cross-examined by Ld. defence counsel. However, his cross-examination is not repeated here for the sake of brevity.
5. PW-2 Sh. Pradeep Paswan was examined on 08.03.2017 wherein he deposed that on 03.11.2016, he went to Subzi Mandi Railway Station to drop his sister and after dropping her when he was coming back to his home, two persons apprehended him from the back side and third person forcibly took out his mobile phone make Micromax and Adhar Card from the right side pocket of his trouser. Thereafter all three accused persons ran away from the spot, however, he shouted "Chor Chor" and FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 3 / 16 the accused (correctly identified by the witness) was apprehended with the help of public persons near Sharab Theka and the mobile phone was also recovered from the possession of the accused. He further deposed that he made call at 100 number from his own mobile phone and thereafter police officials came and he handed over the accused as well as the mobile to the police officials who recorded his statement Ex.PW2/A bearing his signature at point A. The site plan was prepared at his instance which is ex.PW2/B and his mobile was seized vide memo Ex.PW2/C, both bearing his signatures at point A. Accused was arrested vide memo Ex.PW2/D and his personal search was conducted vide memo Ex.PW2/E, both bearing his signature at point A. He also deposed that Investigating Officer seized his Adhar Card vide memo Ex.PW2/F and he stated that the mobile phone and Adhar Card produced by MHCM are his mobile and Adhar Card.
This witness was cross-examined by Ld. defence counsel. However, his cross-examination is not repeated here for the sake of brevity.
6. PW3 HC Sandeep deposed that on 03.11.2016, he was posted with MHCM with PS Gulabi Bagh. On that day, IO SI Praveen Kumar deposited case property i.e. mobile phone, one adhar card and the copy of seizure memo with the malkhana. He deposited the same vide entry 954 which is in his handwriting in the register no. 19 (OSR). The copy of the same is Ex.PW3/A. This witness was not cross-examined by Ld. defence counsel despite opportunity given.
FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 4 / 167. PW-4 Ct. Nawal Kishor deposed that on 03.11.2016, he was posted as Constable with PS Gulabi Bagh and on that day, Investigating Officer (IO) received a PCR call that one thief was apprehended near Desi Sharab Theka, Truck Market, Gulabi Bagh, Delhi and he alongwith IO went to the spot where the complainant handed over accused Sanjay to them. IO recorded statement of complainant and prepared the rukka and handed over the same to him for registration of FIR and he came back alongwith original rukka and copy of FIR. After getting the same registered, he further deposed that IO seized mobile phone and Adhar card of the complainant vide memos already Ex.PW2/C and Ex.PW2/F and arrested the accused vide memo Ex.PW2/D and conducted his personal search vide memo Ex.PW2/E, all bearing his signatures at point B. He also identified his signatures on the disclosure statement of the accused Ex.PW4/A, bearing his signatures at point A. This witness was not cross-examined by Ld. defence counsel despite opportunity given.
8. PW5 SI Parveen Kumar deposed that on 03.11.2016, he was posted as SI with PS Gulabi Bagh. On that day, he received DD No. 12A regarding attempt to commit theft of a mobile phone. He alongwith Ct. Nawal Kishore reached to Truck Market near wine shop, Gulabi Bagh and they met complainant Sh. Pradeep Paswan. He produced the accused Sanjay (correctly identified) and disclosed that he was coming from Subzi Mandi Railway station along railway line on foot after dropping his sister at the railway station and he reached near the truck market he was caught hold by two boys from behind and third boy came from the FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 5 / 16 front and forcibly took away his mobile and Adhar card from his pocket and ran away. The accused who took out his mobile phone was apprehended by public persons after the complainant raised an alarm and chased him. The complainant took his mobile phone from the accused and when he reached the spot alongwith Ct. Nawal Kishore, the accused and the mobile phone were handed over to him by the complainant.. On interrogation, the accused revealed his name to be Sanjay S/o Sunil, R/o Andha Mugal, Pratap Nagar, Delhi. Thereafter, he sent rukka through Ct. Nawal Kishore for the registration of FIR, who came back with the copy of FIR and original rukka on the spot. The rukka is Ex.PW5/A. Thereafter, on search of the accused the Adhar card of complainant was recovered from the right pocket of the trouser of accused After completing the investigation, he filed the chargesheet before Hon'ble Court.
This witness was cross-examined by Ld. defence counsel. However, his cross-examination is not repeated here for the sake of brevity.
9. As all witnesses were examined by the Prosecution, Prosecution Evidence was ordered to be closed on 30.07.2018. Statement of the accused Sanjay u/s 313 Cr.PC was recorded on 08.08.2018 and as no defence evidence was lead, matter was listed for final arguments. Final arguments were heard on 08.08.2018.
10. I have heard the rival submissions and carefully perused the record.
FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 6 / 16REASONS FOR DECISION
11. In the present matter, the prosecution has examined 5 witnesses in total to prove that accused alongwith the other co-accused persons (since not apprehended) in furtherance of their common intention committed theft of the mobile and Adhar Card of the complainant Pradeep Paswan.
12. Before appreciating the evidence as stated above in brief, it is necessary to state the essential ingredients of Section 392 IPC which are as follows:-
i. when any person in order to the committing of theft or in committing theft, or in carrying away or attempting to carry away property obtained by theft.
ii. voluntarily causes or attempts to cause to any person death or hurt or wrongfully restraint.
iii. by fear of instant death or of instant hurt or of instant wrongful restraint.FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 7 / 16
13. It has been observed that Harish Chandra Vs. State of UP AIR 1976 SC 1430 that:
"Robbery: the offence of robbery is defined in Section 390 of IPC. The robbery is punishable u/s 392 of IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
14. The essential ingredient for proving offence u/s 411 are as follows:
(i) that the property in question is a stolen property;
(ii) that the accused received or retained such property.
15. Essential ingredients of Section 34 IPC are as follows:
(1) That there must be a criminal act;
(2) The act must have been done by several persons
in furtherance of their common intention;
16. In order to prove its case, the prosecution has examined only one material witness who is the complainant who was present at the spot at the time of the incident. The complainant Sh. Pradeep Paswan deposed that on 03.11.2016, he went to Subzi Mandi Railway Station to drop his sister and after dropping her when he was coming back to his FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 8 / 16 home, two persons apprehended him from the back side and third person forcibly took out his mobile phone make Micromax and Adhar Card from the right side pocket of his trouser. Thereafter all three accused persons ran away from the spot, however, he shouted "Chor Chor" and the accused (correctly identified by the witness) was apprehended with the help of public persons near Sharab Theka and the mobile phone was also recovered from the possession of the accused. He further deposed that he made call at 100 number from his own mobile phone and thereafter police officials came and he handed over the accused as well as the mobile to the police officials who recorded his statement Ex.PW2/A bearing his signature at point A. However, the site plan was prepared at his instance which is ex.PW2/B and his mobile was seized vide memo Ex.PW2/C, both bearing his signatures at point A. Accused was arrested vide memo Ex.PW2/D and his personal search was conducted vide memo Ex.PW2/E, both bearing his signature at point A. He also deposed that Investigating Officer seized his Adhar Card vide memo Ex.PW2/F and he stated that the mobile phone and Adhar Card produced by MHCM are his mobile and Adhar Card.
17. Since, there is no other public witnesses to the alleged incident, it is to be seen whether the complainant's testimony can be considered to be trustworthy, coherent, cogent and reliable. In this regard, it is necessary to examine the testimony of the complainant and compare the same with his original statement recorded on the date of incident which is Ex.PW2/A. A perusal of Ex.PW2/A reveals that the complainant has disclosed the entire sequence of events as stated above in his original statement including the place of apprehension of the accused. No FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 9 / 16 contradiction whatsoever can be noted in the testimony of the complainant in court and in his original statement Ex.PW2/A. The only way to test the veracity of the complainant was to subject him to thorough cross-examination. The complainant was thoroughly cross-examined by the defence counsel. However, he reiterated his earlier version wherein he stated that he ran behind the accused raising an alarm "Chor Chor"
who was apprehended on the spot with the help of public persons and the mobile phone was recovered from his possession.
18. No doubt the complainant stated that public persons and shopkeepers had gathered at the spot and there is no other public persons cited as a witness in the list of witnesses. However, this court is aware that in the given circumstances prevailing in this country most of public persons are wary in joining the investigation.
19. Even otherwise, it is settled law that the testimony of a single witness if cogent and trustworthy and can be relied upon by the court for arriving at a conclusion whether the accused is guilty of the alleged offence or not.
20. In the matter of State U.P. Vs Ballabh Das (AIR 1985 SC 1384) (1984 Cri LJ 2009) the SuprehimCourt in paras 3 and 5 at page 385 observed:-
"There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest or FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 10 / 16 should not be relied upon for conviction an accused. What the law requires is that where the witness are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication."
21. In the matter of State of U.P. Vs M.K. Anthony (Air 1985 SC
48): (1985 Cri LJ 493) the SuprehimCourt observed in para 10 at page 54:-
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once the impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general benor or the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief.
Even honest and trustful witness may differe in sohimdetails unrelated to the main incident because power of observation, retentions and reproduction differ with individuals."FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 11 / 16
22. Further, in the matter of "Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19" it has been observed that:-
"....Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs...."
23. Apart from the testimony of the complainant as disclosed above, various other documents prepared by the Investigating Officer during the course of investigation have been proved by the prosecution through various witnesses examined such as PW4 Ct. Nawal Kishor, PW1 ASI Shanti Ram, PW3 HC Sandeep and PW5 SI Parveen Kumar. IO/SI Parveen Kumar has consistently deposed that the sequence of events leading to his arrival at the spot and the apprehension of the accused by the complainant. He also proved the documents prepared by him during the course of investigation including rukka, arrest memo, personal search memo, disclosure statement of the accused, site plan etc. FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 12 / 16
24. The testimony of the IO is further supported by the testimony of the other police officials who were accompanying him during the course of investigation. It is settled law that testimony of police officials can be relied upon.
25. It is settled law that police witnesses are reliable witnesses even without independent corroboration. It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. State" (AIR 2003 SC 1311) that :-
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
26. The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) has held that:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 13 / 16 on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
27. Thus the essential ingredients of offence of recovery have been duly proved by the prosecution as it has been proved that the accused in furtherance of his common intention with other co-accused (since not apprehended) held the neck of the complainant and forcibly took away his mobile and Adhar Card. The accused was apprehended on the spot and it has been proved that the accused committed theft upon the complainant. Thus the accused is required to be convicted u/s 392/34 IPC.
FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 14 / 1628. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test which are per-requisites before conviction should be recorded, which are as under:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The circumstances concerned "must or should"
and not "may be" established;
(3) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 15 / 16
29. As a cumulative effect of the above said discussion, it is clear that it has been adequately proved by the public as well as police witness that accused Sanjay in furtherance of his common intention with co- accused voluntarily committed theft to complainant Sh. Pradeep Paswan and thus the accused is hereby held guilty for offence punishable under Section 392/34 IPC. Accused Sanjay deserves to be convicted of charges for the offence u/s 392/34 IPC.
Digitally
30. Ordered accordingly. signed by CHETNA CHETNA SINGH SINGH Date:
2018.08.08 Announced in the open 13:13:54 +0000 Court on 08.08.2018 (Chetna Singh) Addl. Chief Metropolitan Magistrate Central/Tis Hazari Courts, Delhi/ 08.08.2018 FIR No. 194/16 State Vs Sanjay PS: Gulabi Bagh Page No. 16 / 16