Delhi District Court
Mohd. Jullu @ Shikh Chilli vs State on 19 January, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case Number. 451/2018
Assigned to Sessions. 03.12.2018
Arguments heard on. 15.01.2019
Date of Order/Judgment. 19.01.2019
IN THE MATTER OF :
Mohd. Jullu @ Shikh Chilli,
s/o Mohd. Siddiqui,
R/o. Village Mayawari, PS Amdabad,
Distt. Katihar, Bihar. ........... Appellant
Versus
State
The N.C.T. of Delhi. ........Respondent
JUDGMENT:
1. The present appeal under section 374 (3) Cr.P.C. has been filed against the impugned judgment dated 08.06.2018 and order on sentence dated 21.06.2018 passed by Sh. Ashu Garg, Ld. CMM., Central, Tis Hazari, Delhi whereby appellant has been convicted for committing offence punishable under section 457 (PartII)/34 IPC and sentenced to rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/ and in default of payment of fine, S.I. for one month and appellant has also been convicted for the committing offence punishable u/s C.A. No. 451/2018 Mohd. Jullu Vs. State 380/511/34 IPC and sentenced to rigorous imprisonment for a period of one year and to pay fine of Rs.10,000/ and in default of payment of fine SI for one month. Having felt aggrieved with the impugned judgment and order on sentence, passed by the Ld. trial court, appellant has filed the present appeal.
2. That, the brief facts of the prosecution case as well as mentioned in the impugned judgment are that DD No.6A was received by police on 06.11.2017 at about 2:35 a.m., with information about a theft being committed by some persons at House No.5C/22 in front of Liberty Cinema, Delhi, upon receipt of information, HC Satyapal and HC Hemant Kumar (investigating officer of this case) went to the spot where the police officials HC Praveen and SI Babu Lal were already found present, along with the complainant/victim Dr. Anil Vardhani. The said police officials along with the complainant entered the house and found three persons there, who were overpowered. The names of the said persons were revealed as Mohd. Jullu, Mohd. Sheikh Aziz and Mohd. Mister (accused persons therein). Statement of complainant was recored, wherein the complainant had informed that he used live at House No.2C/37, New Rohtak Road, Karol bagh, Delhi and was also having another house at 5C/22, Ground floor, New Rohtak Road, (the place of theft). It has also been stated that he heard some noise from the house No.5C/22 and its light was found one where Sh. Ravi Jain already called the police by making 100 number call.
C.A. No. 451/20183. When the complainant reached at the spot and found that main gate of his house and the window were broke open and he entered with the police in the house and three accused persons were apprehended. One big screw driver was found in the hand of accused Mohd. Jullu, one cutter was found in the hand of Mohd. Sheikh Aziz and iron chaini was found in the hand of accused Mohd. Mister and upon the statement of the complainant, the present FIR bearing No. 228/2017 u/s 380/457/511/34 IPC PS Desh Bandhu Gupta Road was registered and all three accused persons were arrested and after completion of the investigation, the chargesheet was filed in the court against all the three accused persons and after supply the chargesheet to all the three accused persons the Ld. Trial court framed charges against all the accused persons for the offence u/s 457(PartII)/34 IPC as well as u/s 380/511/34 IPC and six prosecution witnesses were recorded including the complainant PW1 Dr. Anil Vardani as well as his neighbour PW2 Ravi Jain, who has called the police and thereafter, the statement of the accused u/s 313 Cr.P.C. was recorded and vide order dated 08.06f.2018, the Ld. Trial Court convicted all the three accused and vide order dated 21.06.2018 all the three accused were awarded sentence for the offence punishable u/s 457 (PartII)/34 IPC and under section 380/511/34 IPC and against the impugned judgment and order on sentence, the present appeal has been filed by the appellant Mohd. Jullu on the ground that the complainant could not identify the accused in the C.A. No. 451/2018 Mohd. Jullu Vs. State court and upon the statement made by the police officials who are not the independent witnesses, the Ld. Trial court has convicted the accused persons in routine manner and without application of judicial mind.
4. That, during the course of the arguments, Sh. Alok Vajpai, from Delhi State Legal Service Authority, Central District, Delhi, it has been pointed out that alleged incident of theft, lurking house trespass/house breaking is based on suspicion and perusal of the prosecution witnesses, examined before the Ld. Trial court non of the witness was able to identify the any of the accused and the prosecution has been failed to prove its case beyond reasonable doubt against any of the accused and make a submission that appeal may kindly be admitted and impugned judgment dated 08.06.2018 as well as order on sentence dated 21.06.2018 may kindly be set aside.
5. Per contra, Ld. Addl. PP for the State has argued that all the three accused/convicted were apprehended red handed, when they were inside the house of the complainant with screw driver, cutter and chaini and the prosecution has proved their case against all the three accused persons beyond reasonable doubt and make a submission that there is no illegality in the impugned judgment as well as order of sentence passed by the ld. Trial court and make a submission that appeal may kindly be dismissed.
C.A. No. 451/20186. Having heard the submissions advanced by Sh. Alok Vajpai, Ld. Counsel for the appellant from DSLSA as well as ld. Addl. PP for the State and after gone through the impugned judgment and order on sentence passed by the Ld. Trial court and after gone through the grounds of appeal as well as the trial court record, this court is of the considered view that PW1 Dr. Anil Vardani has deposed and reiterated whatever was mentioned by him in his complaint Ex.PW1/A, made to the police and he has deposed before the Ld. Trial court that he had reached his house immediately after receiving the information from PW2 Ravi Jain and there was house breaking in his house by some thieves and police was also there and all three accused persons were apprehended. The present appellant beside the other coaccused were identify by PW1 Dr. Anil Vardani in the court of Ld. Trial Court and PW1 also proved that a screw driver was found in the hands of the appellant whereas other coaccused were having cutter and iron chaini.
7. That, Sh. Ravi Jain who is PW2 and also neighbour of PW1 also supported his earlier version regarding information furnished by him to Dr. Anil Vardani and also deposed before the Ld. Trial Court that he called the PCR and all three accused were apprehended from the place of the incident by the police. Though, this witness was not able to recognize the face of the appellant, however, PW2 Ravi Jain has not denied that the present appellant and other accomplices were not present at the place of the incident. PW1 Dr. Anil Vardani as well as the police C.A. No. 451/2018 Mohd. Jullu Vs. State officials who were examined by the prosecution has duly identified the appellant, being a person present at the place of incident and the testimony of PW3 HC Praveen, PW4 SI Babu Lal and PW6 HC Hemant Kumar is material and trustworthy who had duly identified the present appellant.
8. PW1 Dr. Anil Vardani as well as the other witnesses has identified the articles/tools of house breaking, alleged to have been recovered from the possession of the appellant.
9. That, the argument of Ld. counsel for the appellant is not of much credence in respect of testimony of the police officials inasmuch as the Hon'ble Apex Court of India has held that the conviction can be based solely on the basis of one witness if it is reliable. Reliance is placed upon "Vithal Pundalik Zendge Vs. State of Maharashtra, AIR 2009, SC 1110" wherein it has been held that :
"...Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely :
(i) Wholly reliable,
(ii) Wholly unreliable,
(iii) Neither wholly reliable nor wholly unreliable.
In the first category, the court should have no difficulty in coming to its conclusion either way. It may convict or may acquit on the testimony of single witness, if it is found to be above reproach or suspicion of interestedness, C.A. No. 451/2018 Mohd. Jullu Vs. State incompetence or subornation.
In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.' Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
10. The position has been reiterated in large number of cases.
Reference may be made to Joseph v. State of Kerala (2003 (1)SCC 456), Yakub Ismailbhai Patel v. State of Gujarat (2004 (12) SCC 229), Bhimapa Chandappa Hosamani and Ors. v. State of Karnataka (2006 (11) SCC 323) and Kunju @ Balachandran v. State of Tamil Nadu (2008 (2) SCC 151)."
10. Ld. Counsel for appellant has also submitted that the complainant could C.A. No. 451/2018 Mohd. Jullu Vs. State not identify the accused before the Ld. Trial court and the Ld. Trial court has convicted the accused only on the testimony of police official and same cannot be considered as cogent and trustworthy and because of this reason the judgment and order on sentence may kindly be set aside whereas Ld. Addl. PP for the State has make a submission that the testimony of police official is sufficient to prove the guilt of the accused if the same is reliable and trustworthy and the arguments of Ld. Addl. PP has been supported by the Law laid down by Hon'ble Apex Court of India in case Transport Commissioner, Andhra Pradesh, Hyderabad and Anr. Vs. S. Sardar Ali and others (1983 SC 1225) wherein it has been held that :
"We feel that it is in archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policeman also knew about it. Its hang over persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the C.A. No. 451/2018 Mohd. Jullu Vs. State accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But, it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
11. The testimony of the police officials cannot be discarded straightaway because they are the police officials and are interested witnesses. Reliance is placed upon Anil @ Andya Sadashiv Nandorkar Vs. State J.T. 1996 (3) SC 120 where it has held as under :
"testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable."
12. That, there is no much material contradictions in the cross examination of any of the prosecution witnesses and the ld. Trial court has appreciated all the evidence of the material witnesses and found that the testimonies of prosecution witnesses are reliable and trustworthy to prove the guilt of accused beyond reasonable doubt.
C.A. No. 451/201813. Therefore, this court is of the considered view that this court has no reason to interfere with the impugned judgment inasmuch as there is no patent illegality or irregularity in the impugned judgment passed by the ld. Trial Court. Accordingly, the present appeal stands dismissed. However, the maximum sentence awarded to the appellant is of two years and fine Rs.10,000/ and in default of fine, one month simple imprisonment has been awarded u/s 457 (PartII)/34 of IPC and accused in judicial custody since the date of his arrest i.e. 06.11.2017 and he has already undergone the custody for more than one year and the appellant is also not able to engage his counsel and Legal Aid counsel has been provided to him to file the appeal. Therefore, the sentence of appellant is reduced to the extent the period of judicial custody already undergone. With this modification of the sentencing part, the appeal is hereby disposed off accordingly.
14. Copy of the order given to the appellant free of cost. TCR be sent back along with the copy of the order. Appeal file be consigned to record room.
PRONOUNCED IN THE OPEN
COURT ON THIS 19.01.2019 (SATISH KUMAR)
ASJ/SFTC2(CENTRAL),
TIS HAZARI COURTS, DELHI.
C.A. No. 451/2018
Mohd. Jullu Vs. State