Delhi District Court
Fir No. 98/2010 : Ps: Pandav Nagar : State vs Ram Gopal And Anr. on 21 October, 2020
FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010)
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (EAST DISTRICT)
KARKARDOOMA COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Ram Gopal and Anr.
FIR No. 98/2010
PS : Pandav Nagar
U/s 382/34 IPC
Date of Institution : 12.10.2010
Date of reserving of order : 06.10.2020
Date of Judgment : 21.10.2020
JUDGMENT
CNR Number: DLET02-000354-2010
1. Serial No. of the case : 4465/2016
2. Name of the Complainant : Sh. Purushottam Vajra
3. Date of incident : 13.03.20100
4. Names of accused persons :
1. Ram Gopal s/o Kalu Ram r/o A-215, Gali no. 7, Meet Nagar, Ashok Nagar, Delhi.
2. Sonu Malik @ Rahul Choudhary S/o Allah Diya r/o D-105 Street no.4, Pachman Park, Mustafabad, Delhi.Page 1 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020
FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010)
5. Offence for which chargesheet was filed : S. 382/34, IPC.
6. Offence for which charge has been framed : as above
7. Plea of accused : Not guilty
8. Final Order : Convicted
9. Date of Judgment : 21.10.2020 BRIEF REASONS FOR ORDER:
1. Mr. Ram Gopal and Mr. Sonu Malik @ Rahul Chaudhary, the accused herein, have been charge-sheeted for committing offences punishable under Section 382/34, the Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 13.03.2010 complainant Purushottam Vajra was going to the office of his C.A. in his car bearing registration no. DL-9CR-9643. At about 1:30 p.m., when he reached near Acharya Niketan, he heard two boys on a scooter calling him to stop his car. He stopped his car near the office of MCD. Those two boys also stopped the scooter. One of them came there and entered inside his car after opening the left side door of the car. He told the complainant that he had started a business of transport and his Page 2 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) business was good with the blessings of the complainant. He said that he had brought a gift to the complainant. Thereafter he kept a bag on the seat of the car. The complainant told him that he did not know him. However, the boy said that he knew him very well. Thereafter, the boy asked him to bring a ring from temple. Said boy then removed two gold rings from fingers of the complainant under the pretext of taking size and measurement. Then he said that he wanted to give one more gift to the complainant which was in his scooter, and he started walking towards his scooter. The complainant tried to catch him. However, the said boy took out a country made pistol and pointed it towards him. The complainant was frightened. In the meantime, both of them ran away from the spot on their scooter. Thereafter the complainant came to his house and narrated the incident to his wife and son. His son Himanshu Vats informed the police about the incident. On the basis of the statement of the complainant, present FIR was registered. Investigation was started. However, the culprits could not be traced. An untrace report was prepared. On 09.08.2010, intimation was received in the PS that accused Ram Gopal, who was arrested in another case, had made confession regarding his involvement in the present case also. The IO had thereafter formally arrested accused Ram Gopal in the present case. The Page 3 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) IO moved an application for conducting TIP of the accused. However, the accused refused to participate in TIP proceedings. Accused Ram Gopal also made disclosure statement regarding involvement of Sonu Malik @ Rahul Chaudhary. Efforts were made to trace him. However, he could not be traced. 'Final Report' was filed by the Investigation Officer (IO) in the Court and accused Ram Gopal was charge-sheeted for the offence punishable under Section 382/34, Indian Penal Code. Later on, accused Sonu Malik @ Rahul Chaudhary was also formally arrested in the present case. He also refused to participate in TIP Proceedings after an application for this purpose was moved by the IO. After completion of investigation Supplementary 'final report' was filed by the Investigation Officer (IO) in the Court and accused Sonu Malik @ Rahul Chaudhary was charge-sheeted for the offence punishable under Section 382/34, Indian Penal Code. The case property could not be recovered during investigation.
3. After perusing the record, cognizance was taken by the Court. Accused persons appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done.
4. After hearing the parties, charge for the offence punishable under Section 382/34 IPC was framed on Page 4 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) 20.10.2020 against accused Ram Gopal, and on 23.04.2011 against accused Sonu Malik. They pleaded not guilty and claimed trial.
5. Summons were issued to the witnesses. The prosecution has examined 8 witnesses in support of its case.
6. PW-1 Purshottam Vajra is the complainant in the present case. He would depose that at the time of incident, he was residing at 45A, Pocket-IV, Mayur Vihar, Phase-I, Delhi- 110091 and was working as editor of Janmaniya News Daily Evening. On 13.03.10 at about 1:30 p.m., he was going to his Chartered Accountant at Mayur Vihar, Phase-II by his Car No. DL-9CR-9643. When he reached in front of the office of corporation, two youths on scooter came from behind and called him tauji and stopped him. The driver of the scooter came down and came to him. He was on his driver seat and on the other side, the said boy opened the left side of door his car and came inside. He told him that he had started a transport company in a flat situated in front of the corporation office. He also told that it all had happened with his blessings (aashirwad). Said person further told him that he had brought a gift for him. He gave him a camera in a bag made of jeans. He asked him that whether he was not aware about him. The boy again asked him to bring a ring from mandir, if visited. Said boy took out Page 5 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) his two gold rings from his fingers, which he was wearing, under the pretext of taking size and measurement of the said rings. Said boy told him that he had one more gift in his scooter and started walking to that side. He tried to catch him immediately. Said boy immediately took out a katta like instrument from his right side and pointed it at him. He became helpless. Both the boys then left the spot on their scooter. Thereafter he came to his home and informed his wife about the incident. His son Himanshu Vats informed the police about the incident. Police called him at the spot. He made his statement Ex. PW-1/A to the police. He had handed over the camera, which was given to him by the said robbers and said camera was taken by police in its possession vide memo Ex.PW-1/B. He had shown the spot to the police. IO prepared the site plan of the spot at his instance. After about 1-1/2 month of the incident, he came to know that some boy known as Sonu Malik @ Rahul Chaudhary was arrested in connection with the incident of the present case. He was asked to go to Tihar Jail to identify the accused in TIP proceedings. However, the accused had refused to participate in the same.
7. PW-1 identified the accused persons in the Court as the persons who had committed the offence with him. Ld. APP also put various leading questions to the witness with the Page 6 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) permission of the Court. He also cross examined the witness on some aspects. PW1 admitted that on the date of incident, he was able to see the robbers properly and the persons involved in the robbery were present in the Court. He admitted that due to his ill health, he might have forgotten as to how many times the IO had made inquiries from him and recorded his statements. He denied the suggestion that on 27.09.2010, he visited the Karkardooma Courts and identified accused Ram Gopal as one of the robbers. He identified the camera given to him by accused as gift, which is Ex.P1, the bag in which the camera was kept is Ex. P2, and a slip lying in the bag is Ex. P3.
8. PW-2 HC Vinay Kumar is the Duty Officer, PS Pandav Nagar. He has proved the registration of the present FIR. The copy of FIR is Ex. PW-2/A and endorsement made by him on rukka is Ex. PW-2/B.
9. PW-3 Ct. Amit is the police official who had participated in the investigation. He would depose that on 13.03.2010, he was posted at PS Pandav Nagar. On that day, he along with HC Dharam Vir Singh had left the PS at around 3.30 pm for patrolling. At about 3.30 pm, when they reached at MCD Godown, Mayur Vihar, Phase-I, they met with the complainant Purushottam. He had given his statement, which was recorded by HC Dharam Vir Singh. Thereafter, HC Page 7 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) Dharam Vir Singh prepared rukka and sent him to the PS at about 4.25 pm for registration of FIR. He came back at the spot along with the copy of FIR and original rukka and handed over the same to the IO. Complainant had handed over one camera, which was seized vide memo Ex. PW-1/B. Thereafter, they inquired about the incident from the nearby spot, but in vain. Thereafter, they returned to the PS and case property was deposited in the Mal Khana. He identified the case property i.e. Still camera as Ex. P-1, bag as Ex. P-2 and a slip lying in the bag as Ex. P-3.
10. PW-4 Ct. Jale Singh is also police official who had witnessed the recording the disclosure statement of accused Ram Gopal. He would depose that on 23.07.2010, he was posted at PS Krishna Nagar and was deputed in the office of ACP Gandhi Nagar. On that day, accused Ram Gopal was arrested by HC Rohtash from the area of Yamuna Vihar. Accused had disclosed that he had committed cheating with 250-300 old persons after hypnotizing them. IO recorded the disclosure statement marked as Mark 4/A. On that day, PC remand of the accused was taken from the Court and the accused made disclosure statement that about 4-1/2 month before, he along his associate Sonu Malik had committed cheating of two gold rings with the old man in the area of Page 8 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) Mayur Vihar after giving him one Camera. IO recorded the said disclosure statement marked PW-4/B. The IO recorded his statement. He identified the accused in the court.
11. PW-5 HC Rajesh Kumar is a police official who had participated in the investigation. He would depose that on 16.08.2010, he was posted as Naib Court, Prosecution Branch and was working in the Court of Sh. S.K. Arora, Ld. M.M, Karkardooma Courts, Delhi. On that day, IO/HC Dharambir Singh interrogated accused Ram Gopal after due permission of the Court. IO recorded the disclosure statement Ex. PW-5/A. Thereafter, accused Ram Gopal was formally arrested vide memo Ex. PW-5/B, and his personal search was conducted vide memo Ex.PW-5/C. Thereafter, the accused was produced before Court and he was sent to JC. IO recorded his statement. He also identified accused Ram Gopal in the court.
12. PW-6 HC Rohtash Kumar is the IO of FIR no.197/2010 PS Geeta Colony. He would depose that on 23.07.2010, he was posted at PS Geeta Colony. He had arrested accused Ram Gopal in FIR no. 197/2010, PS Geeta Colony, wherein he made a disclosure statement about the commission of crime. On 24.07.2010, he also recorded the supplementary statement, wherein accused made disclosure statement Ex. PW-6/B, wherein he made disclosure statement about the commission of Page 9 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) offence in the present FIR along with co-associate Sonu Malik @ Rahul s/o Alah Dia. He informed PS Pandav Nagar vide DD no. 54-B dated 09.08.2010, which is Ex. PW-6/A. On 10.08.2010, IO/HC Dharamvir Singh of FIR no. 98/10, PS Pandav Nagar came to PS Geeta Colony and met him there. He handed over connected documents of this case. IO recorded his statement. He identified the accused in the Court.
13. PW-7 HC Sushil was the Duty Officer PS Geeta Colony on 16.07.2010. He would depose that on that day, at about 3.45 pm, complainant Om Prakash Khurana came to the PS and got registered his complaint to him in the Rojnamcha Register. On the basis of said complaint, he recorded FIR no. 197/10, PS Geeta Colony. He proved the computerized copy of the FIR as Ex. PW-7/A (OS&R). After registration of the FIR, he handed over the same to HC Rohtash for further action after approval from ACP, Gandhi Nagar.
14. PW-8 HC Dharam Vir Singh is the Investigating Officer of the case. He would depose that on 13.03.2010, he was posted at PS Pandav Nagar as HC. On that day he alongwith Ct. Amit reached at MCD godown, Mayur Vihar, Phase-I during patrolling duty. There complainant Purushottam Vajra met them and he recorded his statement Ex. PW-1/A, which was attested by him. He prepared rukka Ex. PW-8/A and Page 10 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) handed it over to Ct. Amit for registration of FIR. He prepared site plan Ex. PW-8/B at the instance of the complainant. In the meanwhile, Ct. Amit came back at the spot with copy of FIR and original rukka and handed over to him. He seized the gifted camera with bag, given to the complainant by the accused persons, vide memo Ex. PW1/B. He had tried to trace the accused and stolen property. In between, he became ill. He handed over case file to MHC(R). on 11.08.2010, one information regarding arrest of accused Ram Gopal at PS Geeta Colony was received at PS Pandav Nagar. He had formally arrested accused Ram Gopal, after obtaining due permission from the Court, vide memo Ex. PW-5/B. Accused Ram Gopal was personally searched vide memo Ex. PW5/C. Disclosure statement of accused Ram GopaI was recorded which is Ex.PW-5/A. The accused was sent to JC through Court order. He obtained date of the judicial TIP. On 01.09.2010, accused Ram Gopal had refused to participate in the TIP proceedings. Statement of PWs were recorded. Thereafter on the completion of investigation challan was submitted in the court against accused Ram Gopal.
15. PW8 would further depose that one fine day in the year 2010, information was received regarding arrest of accused Rahul Malik @ Sonu at PS Geeta Colony. After permission of Page 11 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) the Court, accused Rahui Malik @ Sonu was formally arrested on 24.11.2010 vide memo Ex. PW8/C. Disclosure statement of accused Sonu @ Rahul Malik was recorded which is Ex.PW8/ D. After obtaining the date for TIP, accused Rahul Malik @ Sonu was sent to JC by order of the Court. Accused Rahul Malik @ Sonu also refused to participate in TIP proceedings before the concerned MM. One day PC remand of accused Rahul Malik @ Sonu was obtained for recovery of stolen two rings and katta. However, no recovery could be effected. Statements of witnesses were recorded. After completion of investigation supplementary charge sheet was prepared and submitted before the Court.
16. The witnesses were cross-examined. The accused persons admitted, under Section 294, the Cr.P.C., the TIP Proceedings conducted by Ld. MMs which are Mark-A and Mark-B.
17. The prosecution evidence was closed. The accused persons were examined u/s 313 Cr.PC. The incriminating evidence was put to them. they denied all the incriminating evidence. They would state that they were innocent. They had refused to participate in TIP proceedings as the police officials had taken their photographs and they were shown to the witness. The complainant had falsely identified them at the Page 12 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) instance of the police officials.
18. The accused persons did not lead any defence evidence. Therefore, the matter was fixed for final arguments.
19. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The testimonies of the witnesses have proved beyond reasonable doubts that the accused persons, in furtherance of their common intention, after making preparation for causing death, hurt or restraint, had committed theft. The complainant has correctly identified the accused persons in the Court. The accused have not led any evidence. They have taken a false defence. Hence, the prosecution has proved all the ingredients of the offence punishable under Section 382/34, IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
20. Ld. Defence counsel has filed written submissions. It has been stated that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. Nothing was recovered from the possession of any of the accused. The IO had filed an untrace report in the present case. Thereafter the matter was reopened without any application of the complainant. None of the Page 13 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) accused had made any disclosure statement. Signatures of the accused persons were forcibly obtained on the papers. No other public witness has been joined by the IO. The complainant is an interested witness. He did not call the police control room after the alleged incident which creates doubts on his testimony. There is delay of two hours in approaching the police. The son of the complainant is a crime reporter and the present FIR was lodged by the complainant after consultation with his son. A false statement of the weapon was made to bring the matter under Section 382, IPC. He has falsely identified the accused persons at the instance of the police officials. The witness was declared hostile by the prosecution as he was cross examined by the State. Further, the accused persons had refused to participate in the TIP as the police officials had taken their photographs and they were also shown to the witness. They were also shown on TV Channels in a press conference. There is nothing on record to show that the camera produced in the Court was related to the present case. It is a planted article. Above-mentioned facts and circumstances create reasonable doubts on the case of the prosecution. Hence, it is prayed, the benefit of doubts may be given to the accused and they may be acquitted.
21. I have heard the rival submissions and carefully Page 14 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) perused the material available on record.
22. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
23. In the present case, the accused have been charged for committing offence punishable under section 382/34, IPC. Section 382, IPC provides punishment for committing theft, having made preparation for causing death, or of hurt, or of restraint etc. The Section reads as under:
"382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.--Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished Page 15 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
24. Offence under Section 382, IPC is an aggravated form of the offence of theft punishable under section 379, IPC. Theft is defined under Section 378, IPC. The term 'dishonestly' has been defined under Section 24, IPC as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. From a casual approach, the offence punishable under Section 382, IPC appears similar to the offence of robbery. However there is one difference between the two offences. In the offence punishable under Section 382, IPC, the thief prepares himself and is ready to cause death etc. In the case of robbery the preparation takes effect if resisted and some injury or restraint is actually caused. To prove an offence under Section 382, IPC, apart from the ingredients of theft, as defined under Section 378, IPC, it must be proved that the accused had, when committing theft, made preparation for causing death or hurt or restraint, or fear of death or of hurt or of restraint to any person. It must be proved that he made the said preparation either to commit the theft, or to make good his escape or to retain his spoil.
25. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common Page 16 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) intention of all, each of such person is liable for that act in the same manner as it were done by him alone.
26. In the present case, complainant Purushottam Vajra, PW-1, in his testimony has deposed that on 13.03.10 at about 1:30 p.m., he was asked to stop his car by the accused persons who were on a scooter. One of the accused had entered inside his car and offered him a gift in a bag saying that he had started a transport company with blessings of the complainant. The complainant had told him that he did not know him. The accused, however, while keeping the complainant busy in his talks, removed two gold rings from fingers of the complainant. When the complainant understood the fraud played upon him, he tried to catch him. However, the accused had taken out a katta like instrument from his right side and pointed it at him. Thereafter, both the accused drove away from the spot with the stolen property. PW-1 identified the accused persons in the Court as the persons who had committed the offence with him.
27. The witness was cross-examined. However, nothing contradictory has come in his cross-examination to doubt his testimony. It has been argued by the defence that the complainant had identified the accused persons at the instance of the police officials and that he might have seen the accused persons when they were shown on TV Channels during press Page 17 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) conference. However, no such suggestion was given to the PW1 during his cross examination. The complainant is a senior citizen. There is nothing brought on record to show that the complainant had any motive to make a false complaint to get an FIR registered. The FIR was registered in March 2010 while accused Ram Gopal was arrested in July 2010. There is no reason to say that the complainant had made a false complaint 4 months prior to arrest of one of the accused for implicating the accused falsely.
28. It has also been stated by the defence that there was delay of two hours in registration of the FIR. Further, the complainant did not call the PCR after the alleged incident and he had made the complaint after consultation with his son. At the instance of his son he had mentioned about the weapon. Therefore, there are chances of other improvements also.
29. I have considered the arguments. However, I am of the opinion that there are no merits in them. The manner in which the incident had happened, as narrated by the complainant, it was a natural reaction of an aged person to immediately go to his home. Any prudent person, who is conned and thereafter frightened by showing a weapon, might have acted in the similar manner in which the complainant had acted after the incident in question. Therefore, the facts that the Page 18 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) complainant did not call the PCR immediately after the incident and he reached his home and narrated the incident to his family members and only thereafter he made a complaint, are the natural behavior of a person in the circumstances. Therefore, the delay in FIR has been reasonably explained. Further, the fact that the complainant had made the complaint after informing his family members including his son is not a fact which makes his statement unreliable. This fact is also not able to lead to a conclusion that the complainant had made false statement of use of weapon by the culprits to bring the offence under Section 382, IPC. There is also no material to show that the son of the complainant had influenced the investigation of the present matter in any manner.
30. Ld. Counsel for the accused has taken the defence that no other public witness has been examined by the prosecution to corroborate the testimony of the complainant. Hence, reasonable doubt has been raised on his testimony.
31. I have considered the argument. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is Page 19 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) a victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of a victim, the Court has to bear in mind that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the accused persons. Being the victim of the crime, he would be most keen to ensure that the real culprits do not go scot free. The testimony of PW1 is cogent and convincing. I do not find any contradiction in the testimony of PW1 and other material on record. Further, the said defence has been raised for the first time at the stage of final arguments. No such suggestion was given to the complainant at the time of his cross examination.
32. There might be some minor contradictions in the testimonies of the witnesses as argued by Ld. Defence Counsel. However, they are not material in nature. Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, has observed as under :-
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has Page 20 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized Page 21 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".
33. In the present case also, there is no reason to doubt the testimony of the complainant who is also victim of the crime.
34. It has been further submitted by the Ld. Defence Counsel in the written submissions that the accused were shown to the witness by the police officials and that he had identified the accused persons at the instance of the police officials. Due to said reason they had also refused to participate Page 22 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) in TIP proceedings. Hence, the accused may be given benefit of doubts.
35. I have considered the submission. However, there is no material on record to substantiate these arguments. Even if the accused had been shown on TV channels during press conference, it can not be presumed that the complainant had falsely identified the accused persons in the Court at the instance of the police officials. There is nothing on Court record to show that the complainant and the accused were known to each other prior to the incident in question and that there was any enmity between them. The law is settled that testimony of an eyewitness/victim should be believed unless there is specific reason on record to disbelieve him or her. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"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 Page 23 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
36. In the present case also, the testimony of PW1 is cogent and convincing. There is no reason to doubt his testimony. The accused persons, on the other hand, have failed to prove their defence even on the preponderance of probabilities.
37. Ld. Defence Counsel has also submitted in the written arguments that the IO had reopened the investigation without any request from the complainant after filing of untrace. However, this fact, in no manner proves the defence of the accused. As per law, there is no need of any request or permission from a complainant to start investigation in a matter in which untrace report has been prepared. The only requirement in such a case is of recovery of some new fact or evidence. Therefore, the IO was well within his powers to start investigation in the present case after receiving information from PS Geeta Colony.
38. Ld. Counsel for the accused has also submitted in the written arguments that the complainant was declared hostile by the state as he was cross examined by the state and hence his testimony should not be believed.
Page 24 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010)
39. I have considered the submission. However, again, I do not find any merits in it. Perusal of the record would show that the PW1 had narrated all the material facts in his statement before some questions were put to the witness by Ld. APP and he was cross examined on some aspects. The witness was not declared hostile by the state. He was cross examined by the state with the permission of the Court. Be that as it may, it is also settled position of law that testimony of a witness who has been contradicted with the leave of the Court, has to be considered in each case by the Court to decide whether it should be believed or not. It is also well settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. I find strength from the judgment of Hon'ble Supreme Court of India in Sat Paul vs Delhi Administration AIR 1976 SC 294. The Hon'ble Supreme Court has held as under:
"51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, Page 25 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto."
40. Hon'ble Supreme Court in Raja and others Vs. State of Karnataka (2016) 10 SCC 506 has held as under:-
"22. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the Page 26 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record."
41. In the present case, I find the testimony of the PW1 reliable. Even if the portion of his cross examination by the state is left, his testimony recorded in the Court before he was cross examined by the State is sufficient to prove the guilt of the accused persons beyond reasonable doubts.
42. In theses circumstances, I hold that it has been proved, beyond reasonable doubts, that accused Ram Gopal and Sonu Malik @ Rahul Chaudhary, had committed theft of the property of the complainant, after having made preparation for causing death or hurt or restraint, or fear of death or of hurt or of restraint to any person. The property, i.e., the rings were taken out dishonestly without consent of the complainant. It has also been proved beyond reasonable doubts that they made the said preparation either to commit the theft, or to make good their escape or to retain the property. The fact that one of the accused had shown a country made pistol like article to the complainant when he tried to stop them, is sufficient to prove these facts. It is similar to the illustration (i) of Section 382, IPC.
43. The fact that the weapon used by the accused which was shown to the complainant was never recovered is Page 27 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) not a reason to disbelieve the statement of the complainant. It is settled that recovery of the weapon in all cases is not required to prove the case of the prosecution. I get strength from the judgment of the Hon'ble Supreme Court of India in Anwarul Haq vs The State Of Uttar Pradesh Crl. Appeal no.625- 626/2005, decided on 26 April, 2005. Similarly, non recovery of the stolen property also can not be a ground to disbelieve the testimony of the complainant.
44. The common intention of both the accused persons to commit theft after preparation as abovesaid also stands proved by the testimony of PW1.These facts are sufficient to prove the ingredients of the offence punishable under Section 382 /34, IPC.
45. In the light of the discussions herein-above, I hold that the prosecution has proved beyond reasonable doubts that the accused persons, in furtherance of their common intention, had committed theft, having made preparation for causing death, or hurt or restraint, or fear of death, or of hurt, or of restraint to any person. Thus, all the ingredients of the offence punishable under Section 382/34 IPC have been proved by the prosecution beyond reasonable doubts. Accused Ram Gopal and Sonu Malik @ Rahul Chaudhary are found guilty and they are accordingly convicted for the offence punishable under Page 28 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020 FIR No. 98/2010 : PS: Pandav Nagar : State Vs Ram Gopal and Anr.
(CC no. 4465/2016 CNR Number: DLET02-000354-2010) Section 382/34 IPC.
46. Let the parties be heard on the quantum of sentence. Copy of the judgment given free of cost to the convicts.
Pronounced in open Court through Video Conferencing on this 21st day of October 2020.
DINESH Digitally signed by
DINESH KUMAR
KUMAR Date: 2020.10.21
16:17:41 +05'30' (Dinesh Kumar)
Additional Chief Metropolitan Magistrate (East) Karkardooma Courts Complex, Delhi.
Page 29 of 29 ACMM(EAST)/KKD/DELHI/21.10.2020