Delhi District Court
State vs Pawan Kumar on 31 August, 2023
IN THE COURT OF MS. ANAMIKA: MM-06, NDD, PHC, NEW DELHI
State Vs. Pawan Kumar
FIR No.: 27/2014
P.S.: South Campus
U/Sec.:379 IPC
JUDGMENT :-
Srl. No. of the case & Date of 45484/2016 dt. 08.01.2016 institution Date of commission of offence 19.01.2014 Name of the complainant Sh. Karanpreet Singh Name of the accused Pawan Kumar S/o. Sh. Gauri Shankar R/o. Jhuggi Near Moti Bagh Gurudwara, New Delhi.
Nature of offence complained of U/s. 379 IPC Plea of the accused person Accused pleaded not guilty Date of reserving order 04.08.2023 Final Order Convicted Date of order 31.08.2023
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:-
1. In the present case, accused is facing trial for offence punishable under Section 379 IPC on the allegations that on 19.01.2014 at about 9:30 p.m. at Basrurkar Market, Moti Bagh, New Delhi falling within the jurisdiction of PS South Campus, the accused had committed theft of camera make Canon EOS 550D FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 1 belonging to the complainant Karanpreet Singh.
2. After completion of investigation, charge sheet was filed on 08.01.2016 and cognizance was taken on the same day. Copy of charge sheet was supplied to accused on 03.05.2016 and charge for offence punishable under Section 379 IPC was framed upon accused on 09.07.2018 to which he pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined four witnesses till date.
4. PW1 is complainant Sh. Karanpreet who has deposed that in the month of January, 2014, he had put an advertisement on OLX for sale of his Cannon Camera Model No. EOS 550D for an amount of Rs.40,000/- (approx.). He has further deposed that on 19.01.2014, one person called on his mobile phone number and showed interest in the purchase of his camera. He has further deposed that at evening hours, the caller called him to Moti Bagh, Gurudwara. Thereafter, at around 7 p.m., he alongwith his father left for Moti Bagh Gurudwara through his car bearing No. DL-8CZ-6913 alongwith camera which was kept on the back seat of his car and reached there at around 8:00 p.m. He has further deposed that on reaching there, he called the caller who came near his car and inspect the camera inside his car. He has further deposed FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 2 that the caller discussed with him and his father to purchase the same and told him to go the camera shop within Moti Bagh area. He has further deposed that he alongwith the caller went to an electronic shop in Moti Bagh area. The caller alongwith his camera left for the shop and told him to come behind. He has further deposed that when he was trying to park his car, in the meanwhile, the caller flew away from the spot alongwith his camera. He has further deposed that he remained there for around 15 minutes and tried to search him in the gali of Moti Bagh but could not found him. He has further deposed that he called him several times but the caller did not pick his calls. He has further deposed that when he was present there, number of local persons gathered there who informed him that such types of incident generally used to happen in that area. He has further deposed that he alongwith his father went to PS South Campus. He has proved his complaint Ex. PW1/A. He has correctly identified the accused/caller before the court. Thereafter, he was cross-examined and discharged on 26.02.2021.
5. PW2 is Sh. Ajay Kumar, Nodal Officer. He is a formal witness and has proved the CAF of Asit Mandal, his election identity car No. CHQ1461102, CDR containing 26 pages and certificate of Indian Evidence Act Mark P1, P2, P3 & P4.
FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 3Thereafter, he was cross-examined and discharged on 07.04.2021.
6. PW3 is Insp. Pawan Kumar who has deposed that on 31.03.2014, he joined the investigation of case FIR No. 312/2014 PS Hauz Khan alongwith IO/SI Sumit and ASI Mahabir and reached at Ambedkar Basti, South Moti Bagh for search of accused. He has further deposed that one secret informer informed regarding the accused and on his instance, they arrested the accused Pawan Kumar before the court. He has further deposed IO/SI Sumit recorded the disclosure statement of accused. Thereafter, he was cross-examined (nil) and discharged on 26.04.2023.
7. PW4 is SI Shri Bhagwan who has deposed that on 19.01.2014, DD No.29A was assigned to him. He has further deposed that he alongwith Ct. Naresh went to the spot i.e. Basrurkar Market, Moti Bagh and met with the complainant who gave his written complaint. He has further deposed that he prepared rukka Ex. PW4/A, got the fresh FIR registered and prepared site plan Ex. PW4/B. He has further deposed that on 02.04.2014, he received information vide DD No.18B dated 02.04.2014 from PS Hauz Khas regarding apprehension of accused. He has further deposed that he went to PS Hauz Khas, interrogated the accused, recorded his disclosure statement Ex. PW4/C, arrested the accused vide memo Ex. PW4/E and prepared pointing out memo Ex.
FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 4PW1/G. He has further deposed that after completion of investigation, he prepared the charge-sheet and filed the same before the concerned court. He has correctly identified the accused before the court. Thereafter, he was cross-examined and discharged on 15.07.2023.
8. Vide separate statement under Section 294 Cr.P.C, the accused admitted the genuineness of registration of FIR alongwith Certificate U/s. 65B IEA and DD No.18B dated 02.04.2014 Ex. A1 (colly) and Ex. A2. Consequently, the formal witness was dropped from the list of witnesses and PE was closed.
9. Statement of accused was recorded U/Sec. 313 Cr.P.C. on 27.07.2023 wherein he denied the case of the prosecution and pleaded innocence. Accused stated that he does not want to lead any defence evidence.
10. Final arguments were advanced by Ld. APP for the State and Ld. counsel for accused.
11. I have considered the submissions and perused the record carefully.
12. This being a criminal case, the burden of proving guilt of accused lies upon the prosecution for which the standard required is beyond reasonable doubt. Now let us examine if the prosecution has proved its case beyond reasonable doubt against the FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 5 accused for offence punishable under Section 379 IPC.
13. The material witness in the present case is complainant himself who has identified the accused Pawan Kumar in his testimony. Further, as per his deposition he also identified the accused in the PS after which, the accused was apprehended. The case property in the present case i.e. the stolen camera was not recovered during investigation. There is no indication on judicial record that the complainant knew accused prior to the alleged incident or the present case. No prior enmity of complainant with accused has been alleged by the defence. There is no ulterior motive for the complainant to depose falsely against accused. Even in cross examination by accused, nothing has come to discredit the testimony of said witness except minor omissions/differences between the testimony of PW1 given in the court and his statement U/s. 161 Cr.P.C. recorded by the police during investigation. It is a settled proposition of law that minor discrepancies between the statement given to the police and evidence given in court by a witness is not fatal to the prosecution's case unless the same pertains to material facts. In the present case, it has come on record during the cross-examination of PW1 that in his complaint/statement Ex. PW1/A, he has not mentioned that the accused alongwith the camera left for the shop and told him to FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 6 come behind. However, in the statement given to the police Ex. PW1/A, he has mentioned that the accused took the camera from him and then took him to the Basrurka Market and when he was parking his car, the accused took the opportunity to flee away wth the camera. The said difference is not material as the substance of the statement Ex. PW1/A is similar to the testimony given on Oath by the complainant in the court. A statement given before the police can be used to contradict the testimony of a witness in court. However, in Appabhai Vs. State of Gujarat AIR 1988 SC 694, the Hon'ble Apex court has observed that "The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancy which do not shake the basic version of the prosecution case may be discarded". Certain variations between the statement given to the police and evidence recorded in the court on account of passage of time or loss of memory in natural course are therefore, acceptable if the same does not raise a doubt over the prosecution's case or reliability/credibility of the witness itself.
14. The testimony of the complainant/PW1 itself has crucial evidentiary value as he is also the victim of the offence committed in the present case. At this juncture, reference can be made to the discussion made by the Hon'ble Apex court on the FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 7 evidentiary value of the testimony given by the injured/victim in the case titled as Mano Dutt v. State of U.P., (2012) 4 SCC 79 :
(2012) 2 SCC (Cri) 226 wherein Hon'ble Supreme Court observes as follows:
30.Salik Ram was examined as PW 2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. In our view non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution.
Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.
31.We may merely refer to Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] where this Court held as under: (SCC pp. 271-72, paras 28-30) "28. 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 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.' [Vide Ramlagan FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 8 Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919], Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241: 1988 SCC (Cri) 559], Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh [Bhag Singh v. State of Punjab, (1997) 7 SCC 712: 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 :
2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v.State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673: (2010) 3 SCC (Cri) 211].]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719:
(2010) 1 SCC (Cri) 107] where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) '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 : 1994 SCC (Cri) 1694] 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 :
2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 9 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 (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214]). Thus, we are of the considered opinion that evidence of Darshan Singh (PW
4) has rightly been relied upon by the courts below.'
30. 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 inbuilt 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." To the similar effect is the judgment of this Court in Balraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .
Further, the Hon'ble High Court of Delhi in case titled as Mukesh Singh v. State 2014 SCC OnLine Del 912, observed as follows:
17. The testimony of an injured eye witness must be placed at a higher pedestal, as such witness is not only an eye witness of the crime but he himself is a victim of crime and therefore, he is expected to give a truthful version of the entire scene of crime and also with regard to the description of the persons who are the perpetrators of the crime. The witness who himself receives injuries of serious FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 10 nature during assault would not normally let go the real culprits until and unless the defence succeeds to establish that there was a strong motive on the part of such a witness to save the real culprits and falsely implicate the innocent persons. It is also a settled legal position that minor omissions, discrepancies or improvements in the testimony of an eye witness cannot discredit his testimony unless the same militates against the core or heart of the prosecution case.
Therefore, in view of the above discussion, the testimony of this witness alone is sufficient to prove the offence alleged against accused, who has been correctly identified by the complainant as the person involved in theft of his camera.
15. Ld. Counsel for the accused has argued that the bills of the stolen camera or the evidence pertaining to the advertisement given on OLX by the complainant are not present on record. In fact, the same have not made part of the charge-sheet. In his cross- examination, PW4 i.e. the IO has stated that he does not remember whether he obtained the ownership document of the stolen camera from the complainant. He has categorically stated that he did not collect any evidence which would suggest that the complainant had posted an advertisement on OLX regarding the sale of his camera. PW1 i.e. the complainant on the other hand has stated in his cross- examination that he had given proof of the said advertisement to the IO. Be that as it may, perusal of charge-sheet shows that the IO has FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 11 not made efforts to collect the bills or proof of advertisement during investigation. However, it is a settled proposition of law that an accused cannot be acquitted on a sole ground of defective investigation and to do so would be playing into the hands of the IO whose investigation might be defective by design. In this regard, reference can be made to the decision of the Hon'ble Supreme Court of India in case titled as Dhanraj Singh vs. State of Punjab, AIR 2004 SC 1920. It appears from the testimony of PW1 that he had the requisite documents pertaining to the purchase and advertisement for further purchase of the camera/case property with him but the same was not made part of the charge-sheet. The said fact is clearly evident from the testimony of PW4 as discussed above. Further nothing has emerged from the material present on record or the testimony of the witnesses to doubt the existence or ownership of the case property. However, it has been established by the complainant in his testimony that the said case property was dishonestly taken out of his possession without his consent by the accused himself. That would satisfy the requirement of Section 378 IPC which defines the offence of theft.
16. All the material particulars deposed by PW1 has been corroborated by police witnesses also. No material contradiction has come in the testimony of PW1 and other material police witness FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 12 i.e. PW3 & PW4. PW2 has also proved the CDR of the mobile phone No. 9971287181 which was the number that was used to call the complainant by the accused as clearly mentioned in document Ex. PW1/A. Perusal of the CDR Mark P1 to P4 shows that on 19.01.2014 i.e. the date of the commission of the offence, there were calls between the phone number of the complainant and the number mentioned above, specially at the time mentioned in the complaint of the complainant Ex. PW1/A. This goes on to support the version of the complainant given in his testimony before this court and the complaint given immediately after the theft to the police.
17. The accused has not led any evidence to disprove the case of the prosecution. In fact, he has not even given reasonable explanation regarding his involvement in this case or as to why he was identified by the complainant during investigation or in court in his statement U/s. 313 of Cr.P.C. Thus, without any evidence in defence, the accused has failed to raise any reasonable doubt in the case of the prosecution.
18. It has come in the examination of PW4 that no public persons were joined at the spot during investigation. However, the same is not fatal to the case of the prosecution. It has been held in Ajmer Singh vs. State of Haryana, (2010) 3 SCC 746, Hon'ble FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 13 Supreme Court that lack of independent witness does not necessarily vitiate investigation carried out as it is common knowledge that public persons, for several reasons, do not wish to associate themselves with police cases. It has been observed as under:
"The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated."FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 14
19. From the testimony of the witnesses and material present on record as discussed above, it has been established without any doubt that the accused Pawan Kumar called the complainant on 19.01.2014 in order to buy his camera and moved the same out of his possession without his consent with a dishonest intention. The accused has been correctly identified by all the witnesses in the court and supported the case of the prosecution. Further, the defence has not brought any evidence in his favour or to discredit the testimony of the witnesses and raised doubt over the prosecution's case.
20. Thus, as a cumulative effect of all the points discussed above, I am of the opinion that the prosecution has proved its case beyond reasonable doubt against the accused namely Pawan Kumar and accordingly, the accused Pawan Kumar is convicted for offence punishable under Section 379 of IPC.
Copy of this judgment be given free of cost to the accused.
(Typed directly upon dictation and announced in the open Court on 31.08.2023) (ANAMIKA) Metropolitan Magistrate-06 (NDD) Patiala House Courts, New Delhi FIR No. 27/2014 PS South Campus State vs. Pawan Kumar Page No. 15