Delhi District Court
Criminal Case/408/2001 on 29 April, 2010
1
Sr. No. 1248/2/01
FIR No. 408/01
PS: Sultanpuri
State v. Rajpal
IN THE COURT OF SH. NAVEEN GUPTA, MM, ROHINI
COURTS, DELHI
1. FIR No. : 408/01
2. Date of Offence : 12.04.01
3. Name of the complainant : Nagender Pratap
4. Name, parentage and Address : Raj Pal @ Pal
of the accused S/o Sh. Sita Ram
R/o Kachi Colony, Balbir
Vihar, Aman Vihar, Delhi.
5. Offences complained of : Section 380/411 of IPC.
6. Plea of the accused : Pleaded not Guilty.
7. Date of reserving order : 12.04.2010
8. Sentence or final order : Accused Convicted.
9. Date of order : 29.04.2010
JUDGMENT
1. The case of the prosecution is that on 12.04.01, at about 5:00 am, at Govt. Co. Edu. Sr. Secondary School, Rohini Extn., Sector 20, Delhi, the accused committed theft of iron sheets. On the said allegations, accused was charged with the offence under Section 380/411 of the Indian Penal Code (hereinafter referred as 'IPC').
2. After investigation, chargesheet was filed against the accused. 2
Sr. No. 1248/2/01 FIR No. 408/01 PS: Sultanpuri State v. Rajpal The copies of chargesheet were supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 380 of IPC to which he pleaded not guilty and claimed trial.
3. Thereafter, prosecution examined 6 witnesses. PW1 is Nagender Pratap, Complainant; PW2 is HC Jai Bhagwan, constable involved in the investigation; PW3 is ASI Bhoop Singh, Duty Officer; PW4 is ASI Baljeet Singh, Investigating Officer; PW5 is HC Durga Prasad, MHCM and PW6 is P.C.Varun, Retd. Vice Principal.
4. After conclusion of evidence, statement of accused was recorded wherein accused claimed to be innocent and denied the allegations against him. Accused, however, did not opt to lead evidence in defence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. Now, PW1 submitted that on 12.04.01, he was working as Chowkidar in Govt. School; in the night at about 5:00 am, he heard some noise; thereafter, on search, he saw one person who was lifting the iron sheets; on enquiry, he replied that he was looking for his cow; he asked him that there was a boundary wall 3 Sr. No. 1248/2/01 FIR No. 408/01 PS: Sultanpuri State v. Rajpal around the premises and how he had come into it as the gate was locked; the said person had run away from the spot; thereafter, he went to the backside of the school to follow that person and saw that one person was tying iron sheets belonging to the school into rikshaw/rehri; he apprehended that person who was loading the iron sheets on rickshaw rehri; on instructions from the principal, he called the Police; the said person was handed over to the Police alongwith rickshaw and iron sheets. He tendered his statement given to the Police Ex. PW1/A and seizure memo Ex. PW1/B. He identified iron sheets Ex. P1 and rickshaw rehri as Ex. P2. He submitted that he could not identify the accused. PW2 submitted that on 12.04.01, on receipt of the information, he alongwith HC Baljeet Singh reached at the spot where they met Chowkidar who presented a person, five iron sheets and a thela rickshaw. He submitted about the steps taken by IO during investigation. He tendered arrest memo of accused as Ex. PW2/A and personal search memo of accused as Ex. PW2/B. He too identified the case property produced during his examination. PW3 tendered FIR, copy of which is Ex. PW3/A and endorsement on rukka is Ex. PW3/B. PW4 submitted on the similar lines as deposed by PW2. He tendered rukka Ex. PW4/A. PW5 submitted that on 12.04.01, HC Baljit Singh deposited the case property in Malkhana. He tendered relevant entry in register no. 19 to this effect as Ex.PW5/A. 4 Sr. No. 1248/2/01 FIR No. 408/01 PS: Sultanpuri State v. Rajpal PW6 submitted that in the year 2001, he was working as Vice Principal; he had no information about this case and later on, he came to know that some case had been registered. During examination by Ld. APP, he submitted that Nagender Pratap was used to be engaged on daily wages when their regular chowkidar had been on leave.
7. Ld. defence counsel submitted that PW1 did not identify the accused; any independent witness had not been examined who could have deposed about the involvement of the accused in this case; the Principal of the School, PW6, had not supported the case of the prosecution; the accused had been falsely implicated in this case.
Now, PW1 had deposed that he apprehended the person who was loading iron sheets belonging to the school; subsequently, he handed over that person to the police.
Firstly, I consider the argument that PW6 did not support the case of prosecution. The legal position qua hostile witness has been reiterated by the Apex Court in Radha Mohan Singh @ Lal Saheb v. State of U.P., AIR 2006 SC 951, that:
7. [I]t is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or 5 Sr. No. 1248/2/01 FIR No. 408/01 PS: Sultanpuri State v. Rajpal washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.
Applying the legal position, careful scrutiny of testimony of PW6 reveals that he had categorically deposed that PW1 was used to be engaged on daily wages when their regular chowkidar had been on leave. The above mentioned proves that PW1 was not stranger present at the spot/ school, hence, his presence at the spot can not be doubted.
Now, PW1 was unable to identify the accused during examination. Firstly, PW1 had deposed that he handed over the person apprehended by him to the police. The version of PW1 had been corroborated with the testimonies of PW2 and PW4 that PW1 handed over the accused to them. Further, arrest memo Ex. PW2/A corroborated the presence of accused at the spot at relevant time. Above all, accused had not disputed his presence at the spot at the impugned time during examination of prosecution witnesses. Hence, the presence of the accused at the spot at alleged time is proved. Consequently, the argument that PW1 did not identify the accused does not provide any rescue to the accused.
8. It has been argued that no independent witness had been examined. Firstly, PW1 was not known to the accused earlier. Further, there is no allegation of any previous enmity between PW1 and the accused. Hence, there was no requirement of 6 Sr. No. 1248/2/01 FIR No. 408/01 PS: Sultanpuri State v. Rajpal examination of an independent witness too to prove the case against the accused. Even otherwise, I consider legal position regarding independent witness. The Constitutional Courts in plethora of cases have held that nonexamination of independent witness is not fatal to the prosecution case. At this stage, observation of Hon'ble Delhi High Court in Rekha and ors. v. State, 2009 VII AD (Delhi) 293, is also relevant:
22. [I]t is not unusual that the persons from the public avoid joining the investigation of a case though, they might gather at the spot and watch as to what was happening when a person was detained by the police in a public place.
In present case, so far as argument of nonexamination of independent witness is concerned, the circumstances do not raise any doubt in favour of accused. Similarly, the argument of false implication of accused in this case does not find favour.
9. Considering the above mentioned and uncontorverted testimonies of prosecution witnesses, prosecution has proved beyond reasonable doubt that the accused was present at the school; he took away iron sheets belonging to the school and was tying the same in a rickshaw rehri. Hence, ingredients of theft as defined under Section 378 of IPC are proved against the accused.
But there is no single averment from any prosecution witness about the fact from where the iron sheets, though 7 Sr. No. 1248/2/01 FIR No. 408/01 PS: Sultanpuri State v. Rajpal belonging to the school, were stolen by the accused, hence, prosecution has failed to prove, as required for deciding the culpability under Section 380 of IPC, that the theft had been committed in building, tent or vessel which was used as a human dwelling or for the custody of property.
Considering the above mentioned, prosecution has proved the ingredients of offence punishable under Section 379 of the Indian Penal Code against the accused beyond reasonable doubt. Hence, accused is held guilty for the offence punishable under Section 379 of the Indian Penal Code.
10. Put up this case for argument on quantum of sentence.
Announced in open Court Naveen Gupta
(1+1 Copies) MM/Delhi/29.04.10