Delhi District Court
State vs . on 21 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
WEST, TIS HAZARI COURTS,
NEW DELHI
Presided over by- Devanshu Sajlan, DJS
Cr. Case No. -: 60638/2016
Unique Case ID -: DLWT020004992014
No.
FIR No. -: 666/2014
Police Station -: Tilak Nagar
Section(s) -: 356/379/34 IPC
In the matter of -
STATE
VS.
MEENAKSHI
.... Accused
1. Name of Complainant : Ms. Sunita Devi
2. Name of Accused : Ms. Meenakshi
Offence complained of or
3. : 356/379/34 IPC
proved
4. Plea of Accused : Not Guilty
5. Date of registration of FIR : 26.06.2014 Date of filing of
6. : 08.08.2014 chargesheet
7. Date of Reserving Order : 20.01.2023
8. Date of Pronouncement : 21.01.2023
9. Final Order : Convicted DEVANS Digitally signed by DEVANSHU HU SAJLAN Date: 2023.01.21 SAJLAN 16:05:25 +05'30' Cr. Case No.60638/2016 State v. Meenakshi Page 1 of 13 BRIEF STATEMENT OF REASONS FOR THE DECISION-:
A. FACTUAL MATRIX:
1. The case of the prosecution is that on 26.06.2014, at about 07:30 PM at Durga Mandir, 20 Block, Tilak Nagar, Delhi within the jurisdiction of PS Tilak Nagar, the accused Meenakshi, alongwith other co-accused (not traced during investigation), in furtherance of their common intention, used criminal force and committed theft of gold chain by snatching the same from complainant Ms. Sunita Devi without the consent of the complainant.
2. To elaborate, it is the version of the prosecution that on the aforesaid fateful day, the complainant had gone to Durga Mandir for 'Aarti'. When 'Aarti' was going on, many devotees were gathered at the spot and a lady pushed the complainant because of which she fell down and her gold chain was snatched from her neck.
Thereafter, the complainant raised an alarm because of which people gathered around her and tried to catch the accused whose name was later revealed as Meenakshi (accused in the present case).
INVESTIGATION AND APPEARANCE OF ACCUSED -
3. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
4. On her appearance, a copy of charge-sheet was Cr. Case No.60638/2016 State v. Meenakshi Page 2 of 13 supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under sections 356/379/34 IPC was framed against accused to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
5. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Ms. Sunita Devi (complainant) PW-2 : Ct. Rajesh Kumariu PW-3 : Ct. Puneet PW-4 : Ct. Soniya PW-5 : Ct. Lakshmi PW-6 : Ct. Raj Singh PW-7 : IO/SI Babu Lal DOCUMENTARY EVIDENCE Ex. PW-1/A : Complaint of the complainant Ex. PW-2/A : Arrest memo of accused Ex. PW-2/B : Personal search memo of accused Ex.PW : DD No.32 6/A(OSR) Ex. PW-7/A : Site plan Ex. AD1 : FIR Ex. AD-2 : Endorsement on Rukka STATEMENT OF ACCUSED-
6. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against her, the statement of Cr. Case No.60638/2016 State v. Meenakshi Page 3 of 13 the accused was recorded without oath under Section 281 read with Section 313 CrPC. The accused stated that she is innocent and has been falsely implicated in the present case. ARGUMENTS -
7. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
8. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case and the State has proved its case beyond reasonable doubt since the complainant has categorically identified the accused during her testimony. As such, it is prayed that the accused be punished for the said offences.
9. Per contra, learned counsel for the accused has filed written submissions and has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel for the accused has raised the following points through written submissions:
(i) The accused has been arrested by the police at the instance of the complainant based on mere suspicion.
(ii) It has been further submitted in the written submissions that the accused has been falsely implicated in the present case and there is no corroborative evidence which can establish the version of PW-1 Sunita Devi.Cr. Case No.60638/2016 State v. Meenakshi Page 4 of 13
(iii) It has been further submitted that nothing has been recovered from the possession of the accused and in absence of any recovery, the case of prosecution is not made out.
(iv) It has been further submitted on behalf of accused that even as per prosecution story, the alleged incident happened in a temple and many public witnesses were present there, but the IO did not record the statement of even one public witness.
(v) It has been further submitted that PW-1 Sunita Devi had deposed that her son had made the call at 100 number, but the IO has not even recorded the statement of son of the complainant.
INGREDIENTS OF THE OFFENCE -
9. For commission of the offense of theft, the essential ingredients are: (i) There must be a dishonest intention of a person to take the property; (ii) the property must be movable; (iii) the property must be taken out of the possession of another person/complainant; (iv) the property must be taken without the consent of that person/ complainant; (v) There must be some moving of the property in order to accomplish the taking of it.
10. Further, for commission of offense under section 356 IPC, the following essential ingredients have to be fulfilled: (i) In attempting to commit theft, assault is caused, or criminal force is used; (ii) such assault or criminal force is used in attempting to commit theft of any property; (iii) such property must be either worn or carried by the person on whom assault is committed or criminal force is used.
Cr. Case No.60638/2016 State v. Meenakshi Page 5 of 1311. From reading of Section 356 IPC, it is evident that offence under Section 356 IPC is complete when in order to commit theft of any property which is being carried by the complainant, assault or criminal force is used by the accused. Section 350 and 351 of IPC deals with the definition of criminal force and assault. Criminal force is defined as used of force against a person against his consent for the purpose committing an offence or intending by use of force to cause injury.
12. Therefore, the prosecution was required to satisfy the aforesaid ingredients to bring home the charge against the accused. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
13. The case of the prosecution hinges on the testimony of the star witness, PW1 (Smt. Sunita Devi). PW-1 is the sole eyewitness cited by the prosecution in the list of witnesses and there are no other public eyewitnesses who were interrogated or made a witness in the present matter. PW1 has deposed to the effect that on 26.06.2014 at about 7-7:30 PM, she had gone to Durga Mandir for 'Aarti'. She had further deposed that when the 'Aarti' was going on, many devotees were gathered at the spot and a lady pushed her Cr. Case No.60638/2016 State v. Meenakshi Page 6 of 13 because of which she fell down and her gold chain was snatched from her neck. She has further deposed that thereafter, she raised an alarm because of which people gathered around her and tried to catch the accused whose name was later on revealed as Meenakshi (accused in the present case who was correctly identified by the witness). The complainant has further deposed that the accused passed her chain towards other associates/lady and that lady took away her chain from there. Finally, the complainant deposed that her son called at 100 number.
14. In her cross-examination, the complainant re-affirmed that the incident happened around 8 pm and that there were many devotees present in Durga Mandir. She further deposed that she and other public persons had tried to catch the co-accused lady but could not do so. She further deposed that IO did not record the statement of any other public witness in her presence and that the IO never visited the spot again in her presence. Lastly, she admitted that she does not have any bill of the gold chain.
15. The complainant's testimony clearly proves the version of the prosecution since complainant/PW1's testimony clearly mentions the use of criminal force upon the complainant by the accused in order to commit theft of the gold chain of the complainant, which was worn by her on the neck. The said testimony establishes all the ingredients of section 356 IPC and section 378 IPC (theft). After perusing the said testimony, I am of the considered opinion that the testimony of the complainant can be relied upon. The testimony of the complainant/PW-1 has remained consistent with her statement given to the police. Further, the Cr. Case No.60638/2016 State v. Meenakshi Page 7 of 13 complainant has given complete details of the incident which took place on the fateful day whereby the accused snatched her gold chain. The testimony of the complainant/PW1 has remained unshaken throughout examination and cross-examination. Learned counsel for the accused was not able to contradict the version of the complainant on any material count during the cross-examination. Therefore, there is no reason to doubt the testimony of the complainant, especially considering the fact that the complainant is an injured witness.
16. It is a settled position of law that the testimony of an injured witness is accorded greater value in law, due to the reason that such a witness would seldom implicate someone falsely and let the real culprit go scot-free. In the case of Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, the Hon'ble Apex Court relying on its earlier judgments reiterated that special evidentiary status should be accorded to an injured witness. Relevant part of the judgement is reproduced as under:
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, 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, a similar view has been reiterated observing that the testimony of a stamped witness has its 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 Cr. Case No.60638/2016 State v. Meenakshi Page 8 of 13 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. Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below.
17. A similar view was taken by the Hon'ble Apex Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, whereby the Hon'ble Apex Court discussed the evidentiary value of the testimony of an injured witness in the following words:
26. 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".
28. 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 in-built 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.
18. Accordingly, it is a settled position in law that the testimony of an injured witness is a highly corroborative piece of evidence. Unless 'highly compelling circumstances' are established on the basis of major contradictions and discrepancies, which cast a reasonable doubt over the statement of the injured witness, such statement can be safely relied upon by the Courts to convict the Cr. Case No.60638/2016 State v. Meenakshi Page 9 of 13 accused. Therefore, the testimony of PW1 needs to be accorded great weight considering the fact that she is an injured witness.
19. Accordingly, based on the aforesaid position of law, the accused was required to highlight/bring on record major contradictions/ discrepancies in the version of the complainant casting a reasonable doubt over the statement of the injured witness in order to establish her case for acquittal. In order to show the same, learned counsel for the accused has submitted that the complainant had deposed that the area was crowded and despite many public witnesses being present inside the temple at the time of commission of the alleged offense, no such efforts were made by the IO to interrogate the independent public witnesses in order to corroborate the version of the complainant. It is argued that in view of this, story of prosecution must be viewed with suspicion.
20. This court finds this argument to be without any merit as PW3 Const. Puneet had specifically deposed in his cross- examination that IO had asked public persons to join the investigation but no one joined the investigation and left without disclosing their names and address. The IO was not cross-examined by the accused despite opportunity being given and he was not questioned about the reason for not examining any public witness. It is pertinent to note that it is not uncommon for independent members of public to be reluctant to become witnesses in criminal proceedings. In fact, this exact contention was dealt in detail and rejected by the Hon'ble Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646:
12. It is next contended that despite the fact that 20 to 25 Cr. Case No.60638/2016 State v. Meenakshi Page 10 of 13 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW 7.
This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses.
21. Further, the Hon'ble Supreme Court of India, in the case of State of UP v. Anil Singh, AIR 1988 SC 1998, has held that public are generally reluctant to come forward to depose before the court and that it is not correct to reject the prosecution version for want of corroboration by independent witnesses:
15. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council Cr. Case No.60638/2016 State v. Meenakshi Page 11 of 13 had an occasion to observe this. In Bankim Bihari Maiti v. Matangini Dasi [AIR 1919 PC 157 : 24 Cal WN 626] the Privy Council had this to say (at p. 628):
"That in Indian litigation it is not safe to assume that a case must be a false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is, on some occasions, a tendency amongst litigants ....to back up a good case by false or exaggerated evidence."
22. Therefore, lack of joining of public witnesses cannot be termed as major discrepancy which can negative the testimony of the PW1/ complainant.
23. Moving on, failure of the IO to record the statement of the son of the complainant, who had called on 100 number, can again not be termed as a discrepancy which can throw out the case of the prosecution. In any case, it is a settled position of law that defect in the investigation by itself cannot be a ground for acquittal and the court is required to examine the prosecution evidence, de hors such lapses, to find out whether such lapses affected the object of finding out the truth (see C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567). In this case, it has already been concluded that the testimony of the star witness/ complainant is reliable and has remained unshaken during cross-examination. Therefore, lapse on part of the IO to record the statement of son of the complainant or any public witness cannot be said to be material enough to have affected object of finding out the truth in the present trial.
CONCLUSION -
24. To conclude, this court is of the opinion that the testimony of complainant is cogent and convincing. There is no Cr. Case No.60638/2016 State v. Meenakshi Page 12 of 13 reason to disbelieve or doubt the version given by the complainant. Accordingly, the prosecution has been able to prove its case beyond reasonable doubt.
25. Consequently, accused Meenakshi is convicted for the offences punishable under section 356/379/34 IPC.
Pronounced in open court on 21.01.2023 in presence of the accused. This judgement contains 14 pages, and each page has been signed by the undersigned. Digitally signed by DEVANSH DEVANSHU SAJLAN U SAJLAN Date: 2023.01.21 16:04:59 +05'30' (DEVANSHU SAJLAN) Metropolitan Magistrate - 07 West District, Tis Hazari Courts, New Delhi/ 21.01.2023 Cr. Case No.60638/2016 State v. Meenakshi Page 13 of 13