Delhi District Court
In Re: State vs Yash Kumar on 6 February, 2016
IN THE COURT OF GAURAV RAO: ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, SOUTH DISTRICT, SAKET:
NEW DELHI
In Re: STATE VERSUS YASH KUMAR
DD No: 5B dated 24.10.2015
U/s 103 D.P. Act
P.S.: Saket
Date of Institution of Case : 24.10.2015
Judgment Reserved for : 06.02.2016
Date of Judgment : 06.02.2016
JUDGEMENT:
(a) The serial no. of the case : 10/03/2015
(b) The date of commission of offence : 23.10.2015
(c) The name of complainant : HC Yogesh Pal, No. 3046/SD,
PS Saket
(d) The name, parentage, of accused : Yash Kumar
S/o Sh. Vinod Kumar
R/o H.No. 553/34, Bagichi Ka
Bada Nagra, Ajmer, Rajsthan.
Present Address : As above
(e) The offence complained of : U/s 103 DP Act
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 1/14
(h) The date of such order : 06.02.2016
Brief statement of the reasons for the deision:
1. In brief the case of the prosecution is that on 23.10.2015 at about 08.30 to 09.00 P.M. at Khokha Market, Pushp Vihar, New Delhi within the jurisdiction of PS Saket, one laptop make Asus and one mobile phone make Lawa were recovered from the possession of accused Yash Kumar which he had dishonestly or fraudulently obtained and he failed to account for such possession and thus thereby accused committed offence U/s 103 DP Act.
2. Kalandra was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 04.11.2015, notice U/s 103 DP Act was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined two witness i.e. PW01 HC Yogesh Pal (complainant / IO) and PW02 Ct. Mintu, thereafter the PE in the matter was closed and the statement of accused U/s 313 Cr.P.C was recorded today itself wherein he claimed himself to be innocent and having been falsely implicated in the case. The accused opted not to lead any evidence in his defence.
DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 2/14 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW01 HC Yogesh deposed that on 23.10.2015, he was posted as HC at PS Saket and on that day, he alongwith Ct. Mintu were on patrolling duty in the area of PS Saket. He deposed that during the course of the patrolling, when they reached at Khokha market, Pushp Vihar, Saket, one person started running towards NBCC side on seeing them. He deposed that on suspicion, they chased and apprehended the said person on the road of Khokha market. He deposed that on inquiry, the name of said person was revealed as Yash Kumar (accused and correctly identified in court). He deposed that the accused was carrying a laptop bag on his shoulder and on opening of the said laptop bag, one laptop make ASUS was taken out. He deposed that he asked accused to produce the ownership proof of the said laptop, but the accused did not produce any ownership proof neither gave any satisfactory reply in this regard. He deposed that thereafter, he made inquiry regarding the said laptop, but no FIR was registered for theft of said laptop. He deposed that one mobile phone make Lawa was also recovered from the possession of the accused and on inquiry, the accused had disclosed that the said mobile belonged to him. He deposed that till date, the accused did not produce the bill of the said mobile phone. He deposed that he seized the said laptop bag containing laptop and charger and the said mobile phone vide seizure memo Ex. PW 1/A. He deposed that he arrested and carried out personal search of accused vide memo Ex. PW 1/B and Ex. PW 1/C. He deposed that thereafter, they returned to PS and recorded the arrival entry at DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 3/14 Sl. No. 5B in rojnamcha as Ex. PW 1/D. He deposed that the case property was deposited in malkhana and the accused was sent to the lockup after medical examination. He deposed that he prepared the kalandara U/s 103 of D.P. Act against the accused as Ex. PW 1/E. He also identified case properties i.e. the said laptop bag containing laptop and charger and mobile phone make Lawa in court as Ex. P1 and Ex. P2.
5. During his crossexamination, he stated that on the day of the incident, he was posted as beat officer. He stated that on that day at around 8:30 PM, they apprehended the accused. He stated that they were on foot when they apprehended the accused. He stated that he had informed the concerned SHO regarding the apprehension of accused. He stated that he had not made any DD entry separately regarding apprehension of accused as well as recovery of alleged articles from the spot. He admitted that passersby were available at the spot. He stated that he carried out the search of the accused at the spot where the accused was apprehended. He stated that he requested 23 public persons to join the investigation, but none agreed and left the spot without disclosing their names and addresses. He stated that he did not prepare the site plan of recovery neither he took photograph of the spot. He stated that they remained at the spot for around 2025 minutes. He stated that shops were situated at a distance of 50100 meters from the spot. He stated that he did not visit the said shop for requesting said shopkeepers to join the investigation. He denied the suggestion that nothing was recovered from the possession of the accused or that the case DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 4/14 property was falsely planted upon accused. He denied the suggestion that he was deposing falsely.
6. PW02 Ct. Mintu deposed that on 23.10.2015, he was posted as constable at PS Saket and on that day, he alongwith HC Yogesh were on patrolling duty in the area of PS Saket. He deposed that during the course of the patrolling, when they reached at Khokha market, Pushp Vihar, Saket, one person started running towards NBCC side on seeing them. He deposed that on suspicion, they chased and apprehended the said person on the road of Khokha market. He deposed that on inquiry, the name of said person was revealed as Yash Kumar. He deposed that the accused was carrying a laptop bag (black colour) on his shoulder and on opening of the said laptop bag, one laptop make ASUS was taken out. He deposed that HC Yogesh asked accused to produce the ownership proof of the said laptop, but accused did not produce any ownership proof neither gave any satisfactory reply in this regard. He deposed that thereafter, HC Yogesh made inquiry regarding the said laptop, but no FIR was registered for theft of said laptop. He deposed that one mobile phone white colour (Chinese) was also recovered from the possession of the accused and on inquiry, the accused had disclosed that the said mobile belonged to him. He deposed that till date, the accused did not produce the bill of the said mobile phone. He deposed that HC Yogesh seized the said laptop bag containing laptop and charger and the said mobile phone was seized vide seizure memo Ex. PW 1/A. He deposed that HC Yogesh arrested and carried out personal search of DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 5/14 accused vide memo Ex. PW 1/B and Ex. PW 1/C. He deposed that thereafter, they returned to PS and HC Yogesh recorded the arrival entry at Sl. No. 5B in rojnamcha as Ex. PW 1/D. He deposed that the case property was deposited in malkhana and the accused was sent to the lockup after medical examination. He deposed that HC Yogesh prepared the kalandara U/s 103 of D.P. Act against the accused as Ex. PW 1/E.
7. During his crossexamination, he stated that on the day of the incident, his duty was with beat officer. He stated that on that day at around 8:30 PM, they apprehended the accused. He stated that they were on foot when they apprehended the accused. He stated that he does not remember whether any public person was present at the spot or not. He stated that HC Yogesh had informed the concerned SHO regarding the apprehension of accused. He stated that he had not made any DD entry when he had gone for patrolling duty. He denied the suggestion that the accused was falsely implicated in this case or that nothing was recovered from the accused or that the alleged case property was planted upon the accused or that all the documents was prepared at PS. He further denied the suggestion that he was deposing falsely at the instance of IO.
8. This so far is the prosecution evidence in the matter.
9. I have heard the arguments advanced at bar by ld. LAC for the accused as also learned APP and have carefully gone through the evidence DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 6/14 recorded in the matter and the documents placed on record by the prosecution in this case.
10. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused qua offence u/s 103 D.P. Act.
11. It stands proved from the deposition of PW1 & 2 i.e. HC Yogesh and Const. Mintu that accused Yash Kumar was indeed found in possession of one Laptop make Asus and one Mobile phone make Lava which he had fraudulently obtained and failed to account for such possession.
12. HC Yogesh categorically proved that on 23.10.1015 while he along Constable Mintu were on patrolling duty and reached near Khokha Markt, Pushp Vihar, Saket, New Delhi on seeing them accused started running towards NBCC side and on suspicion they chased the accused and apprehended him on the road of Khokha Market. He proved that accused revealed his name as Yash Kumar. He further proved that accused was carrying laptop bag and on opening the same one laptop make Asus along with charger was found in the same and he failed to produce any ownership proof and and also did not give any satisfactory reply in this regard. He also proved that one mobile phone make Lava was also recovered from the possession of accused. He further proved that DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 7/14 he seized the laptop bag containing laptop and charger and the mobile phone vide seizure memo Ex. PW1/A. He proved the arrest of accused vide documents Ex. PW1/B and Ex. PW1/C. He further proved that thereafter they returned to PS and recorded the arrival entry at Sl. No. 5B in rojnamcha vide Ex. PW1/D. He proved that case property was deposited in Malkhana and accused was sent to lock up after his medical examination and he prepared the Kalandara u/s 103 DP ACt against accused vide Ex. PW1/E.
13. Hence, this witness categorically proved the incident, the apprehension of the accused as well as the recovery of the laptop, charger and mobile phone from the possession of the accused. He established the identity of the accused as well as identified the case property during the trial.
14. The deposition of this witness duly corroborated by PW2 Const. Mintu who consistently deposed on the same lines as deposed by PW1.
15. During the course of arguments, Ld. Defence Counsel vehemently argued that the prosecution story cannot be relied upon as no public witness including the nearby shopkeepers was joined during the entire investigation i.e. arrest of the accused and the seizure of the alleged laptop and mobile phone from him. It was argued that conviction cannot be based upon the sole testimony of the police officials as the property being planted upon the accused cannot be ruled out and hence, he prayed for the acquittal of the accused.
DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 8/14
16. However, I do not agree with the Ld. Defence Counsel. I have no reasons to disbelieve the prosecution witnesses. No motive has been assigned to them or proved on record by the Ld. Defence counsel for false implication of accused. There is nothing on record to suggest that the investigating officer or the recovery witness were inimical to the accused. In fact, there is nothing on record to suggest that the accused was known to either HC Yogesh and Constable Mintu prior to the incident. Even the cross examination by the Ld. Defence counsel failed to impeach the credit of either PW1 and PW2.
17. The statements of the police witnesses cannot be discarded merely because they are the police officials. There is no blanket bar upon the reliance and credibility of the witnesses belonging to the police department. Reliance can also be placed upon Bachan Singh v. State of Punjab, (P&H) 1995(2) R.C.R. (Criminal) 475 wherein it was observed that there is no rule of law making it obligatory for the prosecution to examine witnesses of public as independent witnesses to corroborate the statements of the police witnesses.
18. Further it was observed in Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 that Nonassociation of public witness at the time of recovery is Not an infirmity sufficient to throw out the case of prosecution. It was held : DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 9/14 (1) It is very hard these days to get association of public witnesses in criminal in vestigation.
(2) Normally, nobody from public is prepared to suffer any inconvenience for the sake of society.
(3) Police cannot be blamed for not associating public witness. (4) There is no presumption that the police witnesses are not credible witnesses. (5) Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witnesses cannot be rejected on the ground that they are official witnesses. (State of UP vs. Anil Singh AIR 1998, Appa Bhai vs. State of Gujrat AIR 1988 SC 696 and Sukhdev Yadav vs. State of Bihar (2001) 8 SCC 86).
19. There is no rule of law that police official/official witnesses ought not to be believed/relied upon. Police official/official witnesses do not suffer from any disability to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. They cannot be presumed to be less or more reliable then any other normal public witness. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. Reliance may be placed upon Izzazul V. State (Delhi) 2007 (4) RCR Criminal 315, Kala Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 1948 and J awahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336.
DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 10/14
20. As far as non joining of independent public witnesses including nearby shopkeepers is concerned, it is well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. Civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC
696).
21 There is no requirement of law that everyone who has witnessed the occurrence, whatever there number be, must be examined as a witness. (Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Criminal 701).
22. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 11/14 testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
23. In the present case, as discussed above there is nothing on record to suggest untrustworthiness of the witnesses i.e. police officials. If the defence wants this court to believe that the accused has been implicated falsely, the least which was expected from the defence was to at least come out as to what could have been the motive for the police for falsely implicating the accused. But no such reason is even mentioned/explained nor was suggested to the witnesses during their cross examination. The defence cannot expect this Court to believe its version by simple bare allegation that the accused is falsely implicated. At least some reason should have been put forth by the defence to suggest as to what could have been motive of the police in implicating him. In the absence of this, I do not find any reason to throw out/ disbelieve the testimony of witnesses, more so when none of the said witnesses were known to the accused previously and there does not appear any reason or motive for false implication of the ac cused by them. Accused had not alleged any enmity with police officials also and there is no material to suspect false implication of the accused by the police.
24. At this stage, it will be pertinent to highlight answer no.1 given by the accused during his examination under Section 313 Cr.P.C. When the entire incriminating material as appearing against the accused was put to him the accused replied/gave his answer as under: DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 12/14 "It is correct. I am a TSR driver. On the day of incident, I was driving my TSR. One Mohit who is known to me and is a drug addict took lift in my auto. He asked me to stop my Auto at near a Panwari Shop. Suddently, police came there and he ran away. He was carrying a Laptoop bag which he kept in my Auto. The police came there and seized the laptop bag. It was opened and found containing one laptop and one mobile phone. Thereafter, I was taken to PS and sent to Jail.
25. This above statement which is admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. ( (Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315), proves the presence of the accused at the date, time and spot of incident. It also proves that he was arrested by the police and the laptop with the charger and the mobile phone recovered from him. However, his plea of having been falsely implicated does not inspire confidence. Reason is as already discussed above, I find no reasons why the police officials would falsely implicate the accused. As far as his claims that the recovered laptop, mobile etc. belonged to his friend Mohit are concerned I find no merits in the same and they are nothing but afterthought to save his skin. Reason is firstly no such suggestion was ever given to any of the prosecution/recovery witnesses. This plea that the laptop, mobile belonged to Mohit came up for the DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 13/14 first time only during the statement u/s 313 Cr.P.C. Secondly, the accused did not lead any defence evidence, did not examine said Mohit in his defence to substantiate his claims that the recovered property belonged to him.
26. Accordingly, in view of my above discussion, accused is held guilty under section 103 D.P. Act.
27. I order accordingly.
28. Copy of the judgment be given to the accused free of cost.
29. Let he be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao)
Court on 06.02.2016 ACMM (SD)/Saket/New Delhi
DD No. 5B dated 24.10.2015 State Vs. Yash Kumar 14/14