Delhi District Court
3.Title State vs . Surender Kumar on 13 August, 2012
THE COURT OF SHRI SUNIL KUMAR SHARMA :
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 352/07
2.Unique Case ID No. 02401R0695782005
3.Title State Vs. Surender Kumar
3(A).Name of complainant Puran s/o Sh. Nandlal, r/o Jhuggi F Block,
Moti Nagar, Delhi.
3(B).Name of accused Surender Kumar s/o Sh. Rajender Prasad, r/o
Village Saraimeer PS Nizam Bad Dist.
Gorakhpur, UP.
4.Date of institution of challan 30.06.2007
5.Date of Reserving judgment Pronounced on same day
6.Date of pronouncement 03.08.2012
7.Date of commission of offence 01.06.2007
8.Offence complained of Under Section 379 IPC
9.Offence charged with Under Section 379 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Convicted for the offence punishable u/s 379
IPC
12. Date of receiving of judicial file in 29.10.2010
this court
FIR No. 352/07 State Vs. Surender Kumar Page No.1/10
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The matrix of the prosecution case in a narrow compass is that on 01.06.2007 at about 01.35 PM at bus stop, Karampura within the jurisdiction of P.S. Moti Nagar, the accused Surender Kumar, s/o Rajender Prasad, committed theft of purse containing Rs. 490/ from the pocket of the complainant Puran and was caught red handed with the stolen purse containing Rs. 490/ and thereby committed an offence punishable u/s 379 IPC.
2. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of section 207 cr.p.c and on the basis of record, charge u/s 379 IPC was framed against the accused on 25.07.2007, to which he pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case against the accused persons in total examined as many as three witnesses namely:
1. PW1 Puran, the complainant.
2. PW2, WASI Saroj Bala, Duty Officer.
3. PW3, ASI Yoginder Singh, Investigating Officer.
PW1 Puran, the Complainant has deposed that on 01.06.2007, he was waiting for a bus at Karampura bus stop for going to Anand Vihar and a fully crowded bus of route no. 85 came at about 01.35 PM at the bus stop. When he boarded in the bus, he felt that somebody had taken out his purse from the back pocket of his pant. He immediately turned back and saw that the accused, present in the court today (correctly identified) was running away with his purse. He made hue and cry and shouted "Chor Chor Pakro Pakro" and public persons present at the spot caught him with a purse containing Rs. 490/ along with papers and his brother in law's photograph. Enquiries revealed the FIR No. 352/07 State Vs. Surender Kumar Page No.2/10 name of the accused as Surender Kumar. Police came at the spot and recorded his statement Ex. PW1/A bearing his signatures at point A and seized his purse containing Rs. 490/ along with papers and photograph of his brother in law vide seizure memo Ex. PW1/B bearing his signatures at point A. IO prepared site plan Ex. PW1/C and arrested the accused vide arrest memo Ex. PW1/D after conducting the personal search vide Ex. PW1/B. The witness had correctly identified the case property i.e. the purse containing Rs. 490/ along with the documents and the photographs and the same is exhibited as Ex. P1.
PW2, WASI Saroj Bala, Duty Officer and has proved the FIR Ex. PW2/A (OSR) and has deposed that on 01.06.2007, the present FIR was registered by her on the receipt of a rukka sent by ASI Yogender Singh through Const. Ram Phool. The witness has also deposed that she also made the endorsement on the rukka Ex. PW2/B. PW3, ASI Yogender Singh was the investigating officer and has deposed that on 01.06.2007 on receipt of DD no. 29B he along with Const. Ram Phool went to the place of occurrence at bus stop Karampura and met with complainant Puran who produced the accused Surender Kumar present in the court today (correctly identified) along with one rexin purse containing Rs. 490/, documents and photographs stating that the same are stolen by the accused. He recorded the statement of the complainant Ex. PW1/A and seized the case property after sealing the same with the seal of YS vide seizure memo Ex. PW1/B. He prepared the rukka Ex. PW3/A and got the FIR registered through Const. Ram Phool, the site plan Ex. PW1/C was also prepared and the accused was arrested vide Ex. PW1/D after the personal search of the accused vide Ex. PW1/E. The FIR No. 352/07 State Vs. Surender Kumar Page No.3/10 IO recorded the statement of the witnesses and filed the charge sheet. The case property is duly identified by the IO collectively Ex. P1.
4. No other prosecution witness was examined. PE was closed. Accused was examined u/s 281 Cr.P.C on 22.11.11, wherein accused submits that he is innocent and has been falsely and wrongly implicated in this case and the theft was committed by some other person. The accused had declined to lead any evidence in his defence.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
6. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
7. Now the stage has been set to appreciate the entire evidence on record in the light of essential ingredients of offence of theft alleged to be committed by the accused and defined in section 378 IPC and the testimonies of the prosecution witnesses. The essential ingredients of offence of theft punishable u/s 379 IPC are laid down in section 378 IPC as
(a) A person moves any movable property.
(b) Such person intend to take such property dishonestly. FIR No. 352/07 State Vs. Surender Kumar Page No.4/10
(c) The property is moved out of the possession of any person.
(d) The such moving is in order to take the said property dishonestly.
(e) The person out of whose possession, the property is moved has not consented. The word dishonestly is further defined in section 24 of IPC as whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly. The word wrongful gain is defind u/s 23 IPC as wrongful gain it is gain by unlawful means of the property to which the person gaining is not legally entitled.
Wrongful loss it is loss by unlawful means of the property to which the person losing is legally entitled.
Gaining wrongfully, Losing wrongfully A person is said to gain wrongfully when such person retains wrongfully as well as when such persons acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of any property.
8. The prosecution in support of its case against the accused person has examined the complainant Puran who has deposed that on 01.06.2007, he was waiting for a bus at Karampura bus stop for going to Anand Vihar and a fully crowded bus of route no. 85 came at about 01.35 PM at the bus stop. When he boarded in the bus, he felt that somebody had taken out his purse from the back pocket of his pant. He immediately turned back and saw that the accused, present in the court today correctly identified was FIR No. 352/07 State Vs. Surender Kumar Page No.5/10 running away with his purse. He made hue and cry and shouted "Chor Chor Pakro Pakro" and public persons present at the spot caught him with a purse containing Rs. 490/ along with papers and his brother in law's photograph. Enquiries revealed the name of the accused as Surender Kumar. Police came at the spot and recorded statement Ex. PW1/A bearing his signatures at point A and seized his purse containing Rs. 490/ along with papers and photograph of his brother in law vide seizure memo Ex. PW1/B bearing his signatures at point A. IO prepared site plan Ex. PW1/C and arrested the accused vide arrest memo Ex. PW1/D after conducting the personal search vide Ex. PW1/B. The witness had correctly identified the case property i.e. the purse containing Rs. 490/ along with the documents and the photographs and the same is exhibited as Ex. P1.
9. The prosecution has also examined the IO as PW3 who has also deposed regarding the production of the accused by the complainant and arrest of the accused vide arrest memo ExPW1/D consequent to personal search of accused vide memo Ex. PW1/E. The complainant is the material prosecution witness who had not only identified the accused in the court stating that it was the accused who picked his pocket but have also identified the case property allegedly picked by the accused from his pocket as collectively Ex. P1.
10. It is submitted by the counsel that despite the apprehension of the accused in a public place no public witness is joined by the IO which casts a shadow on the entire prosecution case. As far as the arguments raised in respect of nonjoining of public witnesses, it is wellsettled law that the case of the prosecution cannot be thrown away FIR No. 352/07 State Vs. Surender Kumar Page No.6/10 merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgment titled Ambika Prasad & Anr Vs. State reported in 2002(2) Crimes 63 SC wherein it has been held ' Independent persons are reluctant to be a witness or to assist the investigation. 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.
11. Reliance is also placed upon judgment titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it has been held 'These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilance'.
12. In view of the above settled law it is clear that the prosecution case can not be thrown away merely on the ground that no public witnesses have been joined and it is also settled that the testimonies of police officials could be believed if the some have same reliability and inspires the confidence of the court particularly when the complainant has duly proved his complaint ExPW1/A against the accused and have also identified the accused and the case property in the course of his deposition in the Court.
13. It is further argued that these are material contradiction in the testimony of the complainant as the witness has failed to correctly depose whether the IO prepared the documents in Hindi or in English.
14. It is settled law that the court has to see the quality of the evidence and not quantity. Similarly when the witnesses are examined in the court after a long gap minor FIR No. 352/07 State Vs. Surender Kumar Page No.7/10 contradictions, omissions and discrepancies are bound to occur in the testimony of the witness. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or an exaggeration, embroideries or embellishments. Merely because in one respect it is unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects also. Reliance is placed upon Sukhdev Yadav & Others Vs. State of Bihar (2001) 8SCC 86 wherein it has been held 'Once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirely appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. When the witnesses are examined after a long gap minor contradictions omissions and discrepancies are bound to occur in the testimony of witnesses' Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirely. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. (1999) 8 SCC 649, it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from FIR No. 352/07 State Vs. Surender Kumar Page No.8/10 making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to impair/impeach the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the Section would indicate that mere inconsistent statements are not sufficient to impeach the credit of the witness.
15. In view of the wellsettled law discussed above, there is no reason to disbelieve the testimonies of the prosecution witness PW1 the complainant Puran and the other prosecution witnesses of investigation examined during the trial. It is pertinent to mention here that the complainant Puran has duly supported the prosecution case and categorically deposed regarding the commission of the offence by the accused Surender Kumar. The complainant was cross examined at length but nothing favourable to the accused could be extracted by the defence from the aforesaid cross examination of the complainant. The witnesses have been able to correctly identified the accused and the FIR No. 352/07 State Vs. Surender Kumar Page No.9/10 case property in the court.
16. In view of the above said discussion, this court is of the considered opinion that prosecution has been able to prove its case beyond shadow of reasonable doubts to the effect that on on 01.06.2007 at about 01.35 PM at bus stop, Karampura within the jurisdiction of P.S. Moti Nagar, the accused Surender Kumar, s/o Rajender Prasad, committed theft of purse containing Rs. 490/ from the pocket of the complainant Puran and was caught red handed with the stolen purse containing Rs. 490/ and thereby committed an offence punishable u/s 379 IPC.
17. Accordingly, the accused Surender is convicted for commission of offence punishable under Section 379 IPC.
18. Be heard separately on the point of sentence.
19. Copy of judgment be supplied to the convict free of cost.
Announced in the (Sunil Kumar Sharma)
Open Court on 03.08.2012 Metropolitan Magistrate
Delhi
It is certified that this judgment contains ten pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate Delhi FIR No. 352/07 State Vs. Surender Kumar Page No.10/10 THE COURT OF SH. SUNIL KUMAR SHARMA METROPOLITAN MAGISTRATE TIS HAZARI COURTS : DELHI STATE VERSUS SURENDER KUMAR F.I.R. No 352/07 U/s 379/411 IPC P.S. MOTI NAGAR ORDER ON SENTENCE 13.08.2012 Present: Ld. APP for the State.
Convict in person with counsel.
Submission heard. Record perused and carefully considered. The Ld. APP for the State has vehemently argued that in view of the gravity of offence, maximum sentence be inflicted upon the accused.
Conversely, it is argued by the counsel for the convict that convict is a young person of approximately 22 years and is eking out his livelihood by giving the personal service of a bail daar and have to support his ailing father, mother, brother and sister.
He never remained absent from the Court and the convict prays for a lenient view as he is not involved in any other case of whatsoever nature till date and also undertakes not to repeat the same offence in future. The convict further submits that he remained in judicial custody from 01.06.2007 to 16.08.2007.
The judgment indicates the fact that on 01.06.2007 at about 01.35 PM at bus stop, Karampura within the jurisdiction of P.S. Moti Nagar, the accused Surender Kumar, s/o Rajender Prasad, committed theft of purse containing Rs. 490/ from the pocket of the FIR No. 352/07 State Vs. Surender Kumar Page No.11/10 complainant Puran and was caught red handed with the stolen purse containing Rs. 490/ and thereby committed an offence punishable u/s 379 IPC.
The nature of offence is serious. At the same time the age of the convict and his family circumstances are equally important and are to be considered alongwith the fact that the convict is facing the trial since 2007. Further the convict is not involved in any other case and has shown the inclination for reformation.
Having regard to facts, of the case, aggravating and mitigating circumstances, I am of the considered view that the convict deserves some leniency and infliction of maximum punishment shall not meet the ends of justice. The convict had remained in JC from 01.06.2007 to 16.08.2007.
Keeping the facts and circumstances of the case, the convict is sentenced to the period already undergone by him in judicial custody and a fine of Rs. 2,500/ for the offence punishable U/sec 379 IPC. In default of the payment of fine, the convict shall be liable to undergo simple imprisonment for 1 month.
The fine is paid vide receipt no. 440827 dated 13.08.2012. Copy of judgment and copy of order on point of sentence be provided to the convict / Ld. Counsel for the convict free of cost.
File be consigned to Record room.
(Sunil Kumar Sharma) Metropolitan Magistrate Delhi/13.08.2012 FIR No. 352/07 State Vs. Surender Kumar Page No.12/10