Delhi District Court
State vs . Amit Kumar & Anr. on 28 August, 2010
IN THE COURT OF MS. SUGANDHA AGGARWAL:
METROPOLITAN MAGISTRATE (NORTH5) : DELHI.
State Vs. Amit Kumar & Anr.
FIR No. 112/2009
PS Bara Hindu Rao
Unique Case ID No. R054961/09
J U D G M E N T
(a) Sr. No. of the case 722/BH/09
(b) Date of offence 14.9.2009
(c) Complainant Mohd. Gulbas Khan
(d) Accused 1. Amit @ Bunty, S/o Sh. Roop
Kishore, R/o House No.13, New Court
Compound, Tis Hazari, Delhi.
2. Satish @ Rocky, S/o Sh. Ram
Achraj, C/o Chamber No. T47, Tis
Hazari, Delhi. Permanent Address :
VPO Bishanpur Bagia, Distt. Gonda,
UP.
(e) Offence Under Section 379 IPC
(f) Plea of accused Pleaded not guilty.
(g) Final Order Convicted
(h) Date of institution 05/10/09
(i) Date when judgment 17.08.2010
was reserved
(j) Date of judgment 21.08.2010
1. This judgment shall dispose off the case instituted by the police under Section 379 of Indian Penal Code, 1860 against the accused FIR no. 492/2001 Page No. 1 of 21 persons.
2. The allegations against the accused are that on 14.9.09 at about 8.30 pm at Pool Mithai Police Picket, Delhi, the accused persons in furtherance of their common intention committed theft of a sum of Rs.500/ (hereinafter to be referred as stolen money) from the possession of the complainant Mohd. Gulbaz Khan without his consent and thus committed an offence of theft punishable under Section 379 of Indian Penal Code, 1860.
3. After completion of investigation, chargesheet was filed. After compliance of Section 207 Code of Criminal Procedure, 1973. Charge under Section 379 of Indian Penal Code, 1860 was framed against the accused persons vide order dated 20.11.2009. In the said order, my Ld. Predecessor has recorded the plea of guilt of the accused persons. However, the accused persons thereafter joined trial of the case and there is no order of conviction in the judicial file. Hence it is presumed that the accused persons pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined four witnesses. PW1 Mohd. Ulvas Khan is the complainant. He has deposed that he is dealing in the business of bangles and had gone to FIR no. 492/2001 Page No. 2 of 21 Sadar Bazar for purchasing bangles. On his way back, two persons met him and asked him to purchase a mobile phone. When he refused, they embrased him from behind and had stolen Rs.500/ from his pant. Thereafter police officials came at the spot and apprehended the accused persons. The accused persons were produced in police chowki and Rs.500/ were recovered from the pocket of accused Amit. PW1 has correctly identified the accused persons and the case property. He has identified his statement as Ex.PW1/A, site plan as Ex.PW1/B, seizure memo of Rs.500/ as Ex.PW1/C, seizure memo of mobile phones as Ex.PW1/D, arrest memo of accused Satish as Ex.PW1/E, arrest memo of accused Amit as Ex.PW1/F, personal search memos as Ex.PW1/G and Ex.PW1/H. He identified his signatures on all the documents at point A. PW1 was crossexamined and discharged.
5. PW2 Head Constable Jagbir Singh and PW5 ASI Nawajis Raza have stated that on receiving DD No.21A, they had reached at Pul Mithai. They correctly identified the accused persons and the case property. Thereafter they have deposed regarding the investigation proceedings conducted by the IO. PW2 and PW5 were crossexamined and discharged.
FIR no. 492/2001 Page No. 3 of 21
6. PW3 is a formal witness. PW4 Constable Dinesh have deposed that on 14.9.09, he was on patrolling duty and at about 9.30 pm when he was present at police picket Pul Mithai, he heard the noise of PAKRO PAKRO. On hearing this, he went towards the side from which noise was coming and found that accused Satish was apprehended by the complainant Gulvaz. Another accused Amit was apprehended by PW4 at the instance of complainant. PW4 informed the PS and thereupon IO PW5 Nawazis Raza arrived at the spot and recorded statement of complainant Ex.PW1/A. He further deposed about the investigation proceedings conducted by the IO. He was crossexamined by both the accused persons and discharged.
7. After closure of prosecution evidence, statements of accused persons were recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to them. They denied all the allegations and stated that they are innocent and have been falsely implicated in this case. The accused persons opted not to lead any evidence in their defence.
8. Final arguments advanced by Ld. APP for State and counsel for accused have been heard. Record is perused.
FIR no. 492/2001 Page No. 4 of 21
9. The allegations against the accused are that on 14.9.09 at about 8.30 pm at Pool Mithai Police Picket, Delhi, the accused persons in furtherance of their common intention committed theft of a sum of Rs.500/ from the possession of the complainant Mohd. Gulbaz Khan without his consent.
10. The accused persons are charged for committing the offence of theft punishable under Section 379 read with Section 34 of Indian Penal Code, 1860.
Section 378 of Indian Penal Code, 1860 defines the offence of theft which reads as under: "378. Theft Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft".
9. In the case of Pyare Lal Vs. State of Rajasthan AIR 1963 SC 1094, the Hon'ble Supreme Court has laid down the following essential ingriedients to prove the guilt of the accused for the offence under Section 379 of Indian Penal Code : (1) Removal of property of a person out of his possession ; (2) The removal must be dishonest ;
(3) The property must be movable property ;
FIR no. 492/2001 Page No. 5 of 21
(4) The removal must be without the consent of the owner of the
property.
(5) The removal must be in order to the taking of the property.
11. Firstly in the present case, accused persons are alleged to have committed theft of Rs.500/. Money is admittedly a movable property. Therefore in order to prove the guilt of the accused persons, the prosecution has to firstly prove that the complainant was in possession of the stolen money. In order to prove the said fact, prosecution has examined the complainant Mohd. Gulvaz Khan as PW1. He has stated in his testimony that he had gone to Sadar Bazar to purchase bangles as he is in the business of bangles. He has further stated that while returning, the accused persons had stolen a sum of Rs.500/ from his pocket. Ld. Counsel for the accused persons has argued that the complainant has not explained the source of Rs.500/. PW1 has stated in his examinationinchief that the accused persons embrased him from behind and took out a sum of Rs.500/ from the right side pocket of his pant. He has categorically stated that he is a businessman and on that date, he was present at the spot for purchasing certain articles with respect to his business.
FIR no. 492/2001 Page No. 6 of 21
12. It is reasonable to say that in ordinary course of business, a businessman who is out for the purpose of business will be carrying certain cash with him. Rs.500/ is not a very huge amount and same could have been in possession of the complainant at the time of the incident. Further PW1 has been crossexamined by counsel for accused persons. In his crossexamination, PW1 has categorically stated that he was carrying cash amount of Rs.50007000 on the date of incident out of which he had spent around Rs.5000/ and the remaining amount of Rs.1500/ was in his pocket. Regarding the source of money, PW1 has not been crossexamined by either of the accused on that point. Further it is a settled law that the offence of theft is against possession and not against the owner. Once it has been established that the complainant was in possession of stolen money, what was his source of earning the said money or under what capacity he was in possession of the said money is not relevant as it was not to be proved that he was the rightful owner of the property or not. There is no contradiction in the testimony of PW1 and therefore it is established beyond reasonable doubt that the complainant was in possession of stolen money i.e. Rs.500/ on the date of incident.
FIR no. 492/2001 Page No. 7 of 21
13. Now another ingredient to be proved by the prosecution is that both accused persons have taken out the stolen money out of the possession of the complainant with a dishonest intention. Prosecution has cited PW1 as the eyewitness. Both the accused persons were apprehended red handed by the complainant and thereafter they were produced before the police officials. PW1 complainant, PW2 and PW5 have correctly identified the accused persons. Ld. Counsel for accused persons has stated that there has been no independent eyewitness to show that the accused has stolen the money. Firstly, it is settled law that nonjoining of independent public witnesses shall not be fatal to the case of the prosecution. It is settled law that conviction can be based on the testimony of official witnesses and the testimony of the complainant. It is not necessary that in each and every case, independent public persons must be joined in investigation.
In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under: "It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed FIR no. 492/2001 Page No. 8 of 21 even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of a pathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
In the case of Pal Singh Vs. State of UP 1979 Crl. LJ 918, it has been held as under : "After the High Court had believed the eye witnesses Nos. 1 and 2 and having found that their testimony was absolutely creditworthy and truthful, it could not have rejected the prosecution case merely because some of the eyewitnesses mentioned in the FIR were not examined."
In the case of Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Ors. 2001 IV AD (SC) 394, it has been held that :
"On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, nonexamination of such other witnesses may not be material. In such a case the Court ought to scrutinize the worth of the evidence adduced."
Hence, adverse inference cannot be drawn on account of failure of the prosecution to join independent witnesses.
14. Secondly, the incident has occurred in the presence of PW1. FIR no. 492/2001 Page No. 9 of 21 He is the eyewitness to the incident. He has categorically stated in his testimony that accused Satish took out the stolen money from the right pocket of his pant and handed it over to accused Amit. The testimony of PW1 cannot be disbelieved or discarded on the grounds that he is an interested witness being the complainant. It is settled law that the testimony of interested witness, if credible, shall not be discarded merely on the ground that he is an interested witness.
In the case of Bheru Lal Vs. State of Rajasthan (2009) 9 SCC 119, it was held as under : "Merely because a witness exaggerates or is an interested witness, the evidence cannot be thrown out, where it is found that there is a ring of truth in the version of the witness. The Court of facts which appreciates the evidence should show that it was aware of the fact that the witness is an interested witness and then there is nothing wrong if evidence of such person is believed. The task of Courts is to separate chaff from grain."
In the case of Jarnail Singh Vs. State of Punjab (2009) 9 SCC 719, it was observed as under : "The deposition of injured witness should be relied upon unless there are strong grounds of rejection of his evidence on the basis of major contradictions and discrepancies, as his presence at the scene of incident stands established, in case it is proved that he suffered the injury during the said incident. Also in case if he is subjected to lengthy crossexamination and nothing can be elicited to discard his testimony, it should be relied upon."
FIR no. 492/2001 Page No. 10 of 21
In the case of Satvir Vs. State of UP (2009) 4 SCC 289, it was held as under : "Evidence of an interested witness is to be accepted, if found reliable and believable because he would interalia be interested in ensuring that real culprits are punished."
In the case of Gurdev Raj v. State of Punjab 2008 CRI. L. J. 382, the Hon'ble Supreme Court observed as under: "It also cannot be said that since Rajani Bala and Pooja were closely related to deceased Bhushan Lata, their version could not have been believed. In our opinion, the trial Court was wholly right in holding that Rajani Bala and Pooja were no doubt relatives of the deceased but they could not be termed as 'interested' witnesses. The Court was also right in further stating that close relatives would be most reluctant to spare the real assailant and would falsely implicate an innocent person."
In the case of D. Sailu v. State of Andhra Pradesh 2008 CRI. L. J. 686, the Hon'ble Supreme Court held as under: "We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person."
In Dalip Singh and Ors. v. The State of Punjab AIR 1953 SC 364, it has been held as under: "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation FIR no. 492/2001 Page No. 11 of 21 would be the last to screen the real culprit and falsely implicate an innocent person."
The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan 1974 (3) SCC 698 in which Vadivelu Thevar v. State of Madras AIR 1957 SC 614 was also relied upon.
Similar observations were made in the cases of Gali Venkataiah v. State of A.P. 2008 CRI. L. J. 690 and Munigadappa Meenaiah v. State of Andhra Pradesh 2008 CRI. L. J. 3903.
In the case of Ashok Kumar Chaudhary v. State of Bihar 2008 CRI. L. J. 3030, it was held by the Hon'ble Supreme Court that : "The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/ she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive."
15. In the present case also, there has been no animity between the accusd persons and PW1 before the incident and there are no reasons to believe that PW1 will falsely implicate the accused persons in the present case. In fact, PW1 has witnessed the incident and the stolen money has been recovered from the possession of accused Amit. FIR no. 492/2001 Page No. 12 of 21
16. Secondly, learned counsel for accused persons has argued that there are major contradictions in the testimony of PW1 and PW5. I have gone through the testimonies of PW1 and PW5. PW1 is a material eyewitness and the complainant. There is no material contradictions in the testimony of PW1. PW1 has maintained his stand as stated by him in his statement under Section 161 of Code of Criminal Procedure, 1973 in his examinationinchief as well as in his crossexamination. It is settled law that minor discrepancies shall not effect the credibility of the witness.
In the case of Shivappa v. State of Karnataka 2008 CRI. L. J. 2992, it has been held that : "Minor discrepancies or some improvements also, in our opinion, would not justify rejection of the testimonies of the eyewitnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in court."
In the case of Bhoginbhai Hirjibhai v. State of Gujarat 1983 CRI. L. J. 1096, it was held that: "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses." FIR no. 492/2001 Page No. 13 of 21
In the case of State of UP Vs. Santosh Kumar (2009) 9 CC 626, it has been held by the Hon'ble Supreme Court as under : "In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur. But it is the duty of the Court to ensure that truth prevails and if on material particulars, statement of witnesses is consistent, then it cannot be discarded only because of minor inconsistencies."
In the case of Jai Shree Yadav v. State of U.P. 2004 CRI. L. J. 4826, the Hon'ble Supreme Court observed as under: "When a witness is subjected to lengthy arduous cross examination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions therefore those infirmities will have to be appreciated in the back ground of ground realities which makes the witness confused because of the filibustering tactics of the crossexamining counsel."
17. PW5 has also correctly identified the accused persons. He is the Investigating Officer in the present case. There has been no major contradictions in the testimony of PW5. As discussed above, minor contradictions does not affect the testimony of PW5. As such testmonies of PW1 and PW5 cannot be discarded.
18. It is further argued by learned counsel for accused persons that there are major contradictions in the evidence regarding the process of investigation. It has been stated by PW4 that on the date of incident, he was on picket duty. At about 8.30 pm, he heard the noise of pakro FIR no. 492/2001 Page No. 14 of 21 pakro. When he reached at the spot, he saw that the accused has apprehended accused Satish and at the instance of complainant, other accused Amit was also apprehended by him. IO ASI Nawajis Raja left for the spot alongwith Constable Jagbir Singh. As per the testimony of IO, he reached at the spot on receipt of DD No.21A with Constable Jagbir Singh. He had further narrated the process of investigation carried out by him. PW2 Head Constable Jagbir Singh has also deposed on the lines of PW5. There has been no material contradictions in the testimony of the police officials to show that the investigation was not carried out properly. Even all the documents enclosed in the file does not show any fault in the investigation. Further the minor lacunas in the investigation cannot be of any help to the accused as it has been held in a catena of judgments that even if the entire process of investigation is faulty, then also, if the guilt of accused is proved beyond reasonable doubt from the facts of the case, the accused shall be convicted for the offence.
In the case of Ram Bali Vs. State of Uttar Pradesh 2004 Crl. LJ 2490, the Hon'ble Supreme Court held as under : "As was observed in Ram Bihari Yadav Vs. State of Bihar and FIR no. 492/2001 Page No. 15 of 21 others [1998 (4) SCC 517], if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice."
In the case of Dhanaj Singh @ Shera Vs. State of Punjab 2004 Crl. LJ 1807, it was held by Hon'ble Supreme Court as under : "In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on the account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective."
In the case of Rotash Vs. State of Rajasthan 2007 Crl. LJ 758, it was observed that defects in investigation shall not lead to total rejection of prosecution case.
In the case of Allarakha K. Mansuri Vs. State of Gujrat 2002 Crl. LJ 1489, the Hon'ble Supreme Court has observed that defective investigation by itself cannot be made a ground for acquitting the accused.
19. In the present case, firstly there has been no major discrepancies in the process of investigation and further as stated above, minor lacunas in the investigation shall not affect the case of the prosecution. In the present case, the testimony of PW1 has proved the guilt of accused persons. PW1 is the eyewitness to the incident. The recovery of the stolen money from the accused persons has FIR no. 492/2001 Page No. 16 of 21 corroborated the testimony of PW1 and therefore the accused persons cannot be acquitted on the ground of faulty investigation.
20. In view of the above discussion, it is clear that the testimony of all the prosecution witnesses has been duly corroborated by the documents produced in the Court. There has been no contradictions in the testimony of the witnesses. PW1 complainant has duly proved that accused Satish has taken out the money and handed it over to accused Amit. The fact that both accused persons had taken out the money from the possession of complainant is duly proved. There is no explanation by the accused persons to show that they had taken out the stolen money under the bonafide impression that they were entitled to do so or for any other reason. Therefore dishonest intention of the accused persons in taking out the money is also proved. Complainant has attributed specific roles to both the accused. As per the testimony of PW1/complainant, accused Satish took out the money and handed it over to accused Amit. The conduct of the accused persons shows prior meeting of minds and therefore, they have committed this offence in furtherance of their common intention.
21. Further counsel for accused persons has stated that there were FIR no. 492/2001 Page No. 17 of 21 two mobile phones. He submits that one mobile phone out of those two phones has not been produced in the Court and has not been identified and further it is not established that one of the mobile phone was stolen. The said argument of Ld. Defence Counsel is not tenable as the accused persons have been charged only for stealing a sum of Rs.500/ from the possession of the complainant and not for stealing mobile phones.
22. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has proved its case against the accused beyond reasonable doubt. Both accused Amit and Satish are accordingly convicted of the offence of theft punishable under Section 379 read with Section 34 of Indian Penal Code, 1860.
(Sugandha Aggarwal) Metropolitan Magistrate Tis Hazari Courts : Delhi Announced in the open court on August 21, 2010.
FIR no. 492/2001 Page No. 18 of 21
IN THE COURT OF MS. SUGANDHA AGGARWAL:
METROPOLITAN MAGISTRATE (NORTH5) : DELHI.
State Vs. Amit & Anr.
FIR No. 112/2009
PS: Bara Hindu Rao
ORDER ON SENTENCE
28.08.2010
Present: Learned APP for the State.
Convicts Amit and Satish along with counsel.
Copy of Judgment supplied to the convict, against acknowledgment. Parties heard on the quantum of sentence. Record perused.
An application under Section 3 and 4 of Probation of Offenders Act for releasing convict Satish on probation is also moved. Counsel for convict Amit also prays for release of accused on probation.
Ld. APP submits that maximum punishment should be awarded to both the convict persons as they had firstly tried to sell a mobile phone to the complainant and then they committed theft of a sum of Rs.500/ from the complainant.
Counsels for convict persons submits that both the convicts are the sole bread earner of their families and both are of young age. It is also stated that convict Amit has been in custody for about one year and therefore lenient view shall be taken.
I have heard both the parties on the point of sentence. The FIR no. 492/2001 Page No. 19 of 21 convict has been facing the ordeal of trial for last about two years. They does not have any criminal background. The convict persons enjoy sound reputation in the society. They do not have any other criminal record besides the present case. Regard must be had to the social background of the convict and the social milieu and circumstances in which the convict persons are staying. The convicts appear to have a fixed place of abode. Their antecedents are unblemished. They are sole bread earners and are maintaining their families. They appear to be leading stable life. Sentencing the convict persons to jail may have an undesirable and deleterious effect on the character of the convicts who are likely to come into contact with hardened criminals. In view of the nature of the offence and character of convicts and the attendant and surrounding circumstances, this is a preeminently fit case for reformation and rehabilitation of the convicts rather than their condemnation to prison.
It is, therefore, ordered in exercise of powers under Section 4 of the Probation of Offenders Act, 1958 that instead of being sentenced to imprisonment, the convict shall be released on probation of good conduct on executing a personal bond in the sum of Rs.20,000/ to FIR no. 492/2001 Page No. 20 of 21 appear and receive sentence when called upon during the next one year and in the meantime to keep peace and be of good behaviour. Bond furnished and accepted. Convict Amit @ Bunty is in judicial custody. Let he be released from custody, if not required in any other case.
Bail bonds are cancelled and surety is discharged. A copy of this order be sent to the Probation Officer to submit compliance report within a period of one year.
A copy of the judgment and order on sentence be supplied to the convict free of costs. File be consigned to record room after due compliance.
(Sugandha Aggarwal) Metropolitan Magistrate Tis Hazari Courts : Delhi Announced in open Court on August 28, 2010.
FIR no. 492/2001 Page No. 21 of 21