Delhi District Court
In Re: State vs Vijay on 19 January, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH:
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS VIJAY
F.I.R. No: 49/11
U/s 379/411 IPC & 25 of Arms Act
P.S. Defence Colony
Date of Institution of Case : 14.06.2011
Judgment Reserved for : 19.01.2012
Date of Judgment : 19.01.2012
JUDGEMENT:
(a) The serial no. of the case : 86/1/11
(b) The date of commission of offence : 18.04.2011
(c) The name of complainant : Roz Mohammad S/o Sh. Rais
Ansari, r/o H. No. 311 C/o Naresh
Kumar, Shahpur Jat, New Delhi.
(d) The name, parentage, of accused : Vijay S/o Sh. Rohtash, R/o 511,
J.J. Camp, Tigri, New Delhi.
(e) The offence complained of : U/s 379/411 IPC & 25 of Arms
Act
(f) The plea of accused : Pleaded not guilty
FIR No. 49/11 State Vs. Vijay 1/23
(g) The final order : Convicted u/s 379 IPC & 103
D.P. Act as well as 25 of Arms
Act.
(h) The date of such order : 19.01.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 18.04.2011at about 10.00 am at red light, Andrews Ganj Flyover, Ring Road, Defence Colony, New Delhi within the jurisdiction of PS Defence Colony accused Vijay committed theft of one mobile phone make Glide E72, bearing no. 9711710062 which was recovered from his possession on the same date. Further, he was found in possession of one buttondar knife having total length of 32 cm without any permit or license and in contravention of notification issued by Delhi Administration for the same. He was also found in possession of three stolen mobile phones which were recovered during his personal search at the time of his arrest. Thus as per the allegations the accused committed an offence punishable under Section 379/411 IPC & 25 of Arms Act.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 08.07.2011, charge u/s 379/411 IPC & 25 of Arms Act was framed against accused to which FIR No. 49/11 State Vs. Vijay 2/23 he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined seven witnesses. After the PE was closed, statement of the accused was recorded u/s 313 Cr.P.C. wherein he went on to admit the incriminating material appearing against him.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 Mr. Sanjay deposed that on 18.04.2011 he boarded the bus of route no.717 from Khanpur, Bus Stand and at that time he was having his brother's mobile phone make Nokia 1100 in his possession and when he got down from the bus he checked his phone in the pocket of his pant. It was missing from there, he tried to search it but he could not find it. He deposed that no FIR was registered by him regarding his missing mobile phone. He deposed that after an hour, he received a call from PS Defence colony regarding the recovery of his missing mobile phone and accordingly he reached at PS Defence Colony and identified his mobile phone. He deposed that police had also shown him the accused (correctly identified) who had stolen his mobile phone.
This witness correctly identified the case property i.e. Ex. P1.
5. During his cross examination he admitted that when he reached the PS accused was already arrested by the police. He admitted that he was told by the FIR No. 49/11 State Vs. Vijay 3/23 police that it was accused Vijay from whom his brother's phone had been recovered. He admitted that that he had not seen the person who had taken out his phone from his pocket. He denied the suggestion that he was deposing falsely.
6. PW 2 Sh. Roz Mohammad deposed that on 18.04.2011 he was working as CCE in Hindustan Liver Pureit and on that day at about 10.00 am he had withdrawn Rs. 5,000/ from Kalkaji Post office and was going to his office by bus route no. 568. He deposed that he got down from the said bus at Andrewz Ganj bus stop, Ring road and alighted another bus route no. 522. He deposed that when the bus reached at red light, Andrewz Ganj flyover he fell some sensation in the pocket of his shirt and found his mobile phone bearing no. 9711710062 missing. He deposed that accused Vijay along with another accused was already in the bus. He deposed that when he raised alarm and started searching his mobile, both of them tried to flee away from the bus. He deposed that he also ran after them and apprehended accused Vijay (correctly identified) but his mobile phone was in possession of other accused who managed to run away from the spot. He deposed that Traffic police was already present at the red light and they called the local police. He deposed that the police came to the spot after 1015 minutes and recorded his statement vide Ex.PW2/A, on the basis of which, the present FIR was registered. He deposed that police arrested the accused in his presence and conducted his personal search. He deposed that during his FIR No. 49/11 State Vs. Vijay 4/23 personal search four mobile phones along with a knife (silver colour) were recovered. Some rings including colourful dots of red and green colour were engraved on the said knife. The said knife was switch/button operated.
This witness further identified the case property Ex .P1 to P5.
7. During his cross examination he stated that he had shown the relevant entry in the passbook showing the debit of Rs. 5,000/ from his account on the relevant date. He stated that he has seen the judicial file and the photocopy of the same is on record. He stated that the police reached at the spot within 510 minutes i.e at about 10.30 am. He stated that they remained at the spot for about 30 minutes and thereafter he went to the PS along with the police. He stated that he had signed the documents at the spot. He stated that he does not remember now as to how many documents were signed by him. He voluntarily stated that he had signed two documents. He stated that inquiries were made from him at the PS as well. He stated that he had read the documents before affixing his signatures on the same. He stated that search of the accused was conducted by police official whose name he does not remember now. He stated that the knife was recovered from the right pocket of the trouser and the phones were recovered from the left side of the trouser. He stated that when he raised the alarm, the traffic police who was already present at the spot/red light reached there and he with their aid/help apprehended the accused. He stated that public persons were present at the spot but they were scattered. He stated that he was FIR No. 49/11 State Vs. Vijay 5/23 carrying a sum of Rs. 5,000/ in his pocket but the accused could not manage to steal the same. He stated that the knife was sealed in the cabin of traffic police nearby the spot. He stated that he does not remember from where the cloth was arranged but it was in the cabin. He stated that he had not noticed who sealed the knife/prepared the pullanda. He admitted that the accomplice/coaccused fled away from the spot. He voluntarily stated that the accused had taken out his mobile phone and handed over it to his accomplice/friend who ran away with the same. He denied the suggestion that the accused had not handed over the phone to any of his accomplice. He denied the suggestion that he was deposing falsely or that no recovery was effected from the accused. He denied the suggestion that the accused never committed any theft of his mobile phone. He denied the suggestion that he had not caught hold of the accused along with the traffic police at the time when he was fleeing away with his phone.
8. PW 3 SI Abhay Singh deposed that on 18.04.2011 he was posted at Defence Colony circle traffic as SI and on that day at about 11.00 am he heard some noise and saw that the accused was running and the complainant was chasing him. He deposed that he with the help of Ct. Arun apprehended the accused whose name was later on revealed as Vijay. He deposed that on his instruction, Ct. Arun conduced the casual search of the accused and found 4 mobile phones from the left side pocket of his trouser and one buttondar knife was recovered from the right side pocket of his trouser. He deposed that on the FIR No. 49/11 State Vs. Vijay 6/23 handle of the knife red and green circles were engraved. He deposed that he measured the knife which was 32 cm long, blade was 15 cm long and handle was 17 cm and the width of the knife was 3 cm. He deposed that he sealed the knife with the seal of AK. He deposed that he gave the wireless message to control room and SI Arivnd Kumar came to the spot and he handed over the accused along with the recovered 4 mobile phones and knife to him. He deposed that he prepared the sketch of the knife vide PW3/A and seized the same vide Ex.PW3/B and mobile phones vide Ex.PW3/C. He deposed that he prepared the site plan vide Ex.PW3/D. He deposed that he arrested the accused (correctly identified) vide Ex.PW3/E and conducted his personal search vide Ex.PW3/F. He deposed that IO recorded the disclosure statement of the accused vide Ex.PW3/G. He deposed that thereafter, IO took the accused to the PS.
9. During his cross examination he stated that they apprehended the accused at around 11.00 am. He stated that the spot was located at the main road where traffic was more and very few persons were walking on the road. He stated that no notice was served upon the accused before conducting his search. He stated that he had not offered his search to the accused. He stated that mobile phones which were recovered from the accused were Nokia 1100, Nokia 2310, Range and Micromax. He stated that investigation regarding IMEI and connection number was conducted by the IO. He stated that he remained at the spot during his duty hours. He stated that IO came to spot at about 11.30 am. He FIR No. 49/11 State Vs. Vijay 7/23 stated that he does not remember how much time IO took in conducting the preliminary investigation. He stated that he does not know at what time IO left the spot. He stated that he does not remember how many memos were prepared by the IO but they were sketch of the knife, site plan, seizure memos, arrest and personal search memo. He stated that all the proceedings were conducted at the spot. He stated that he does not remember how much time was taken by the IO in recording the disclosure statement of the accused. He denied the suggestion that no recovery had been effected from the accused or that he was deposing falsely.
10. PW 4 Ct. Arun Kumar deposed that on 18.04.2011 he was posted as Ct. at PS Defence Colony and on that day at about 11.00 am he heard some noise and saw that the accused was running and the complainant was chasing him. He deposed that he along with SI Abhay Singh apprehended the accused whose name was later on revealed as Vijay. He deposed that he conducted the casual search of the accused and four mobile phones were recovered from the left side pocket of his trouser along with one buttondar knife from right side of his pocket. He deposed that SI Abhay Singh measured the knife which was 32 cm long, blade was 15 cm long and handle was 17 cm and the width of the knife was 3 cm. He deposed that on the handle of the knife red and green circles were engraved. He deposed that he sealed the knife with the seal of AK. He deposed that SI Abhay Singh gave the wireless message to control room and SI Arivnd FIR No. 49/11 State Vs. Vijay 8/23 Kumar came to the spot and he handed over the accused along with the recovered 4 mobile phones and knife to him. He deposed that SI Arvind Kumar recorded the statement of Roz Mohd. vide Ex.PW2/A and prepared the rukka on the same vide Ex.PW4/A and handed over the same to Ct. Pradeep who came to the spot with SI Arivnd Kumar. Ct. Pradeep took the rukka to PS for registration of FIR and came back with the copy of FIR and original rukka and handed over the same to SI Arvind Kumar. He deposed that SI Arivnd Kumar prepared the sketch of the knife vide Ex. PW3/A and seized the knife vide memo Ex.PW3/B and mobile phones vide Ex.PW3/C. He deposed that SI Abhay Singh prepared the site plan vide Ex.PW3/D. He deposed that he arrested the accused (correctly identified) vide memo Ex.PW3/E and conducted his personal search vide Ex.PW3/F. He deposed that IO recorded the disclosure statement of the accused vide Ex.PW3/G. He deposed that IO recorded his statement u/s 161 Cr.P.C. at the spot. He deposed that thereafter, IO took the accused to the PS.
11. During his cross examination he stated that the accused was apprehended at around 11.00 am. He stated that the spot was a crowded place and public persons were coming and going. He stated that he had not offered his search to the accused before conducting his casual search. He stated that his departure entry was recorded at the PS but he does not remember the same. He stated that his duty hours are from 9.00 am to 9.00 pm. He stated that he remained at the spot till 3.00/3.30 pm. He stated that IO had sent the rukka at FIR No. 49/11 State Vs. Vijay 9/23 about 2.30 pm. He stated that he does not remember the exact time when the IO left the spot. He stated that he does not remember whether the documents were prepared prior to the sending of the rukka or after the registration of the FIR. He stated that no one apart from the complainant was joined in the investigation by the IO. He admitted that IO has not recorded the statement of any bus conductor or driver and they were not joined in the investigation. He denied the suggestion that the recovery was planted upon the accused. He denied the suggestion that the complainant gave a false complaint/deposed falsely in the court at the instance of the IO. He denied the suggestion that he was deposing falsely.
12. PW 5 Ct. Pradeep deposed that on 18.04.2011 he was posted as Ct. at PS Defence Colony and on that day, on receipt of DD No. 6 A at about 11.15 am, he along with SI Arivnd Kumar reached the spot i.e. red light Andrewz Ganj flyover ring road, Defence Colony where they met SI Abhay Singh and Ct. Arun Kumar who had already apprehended the accused with four mobile phones and one buttondar knife. He deposed that SI Abhay Singh handed over the accused along with the recovered 4 mobile phones and knife to SI Arvind Kumar and he recorded the statement of Roz Mohd. vide Ex.PW2/A and prepared the rukka on the same vide Ex.PW4/A and handed over the same to him which he took to PS for registration of FIR and came back with the copy of FIR and original rukka and handed over the same to SI Arvind Kumar. He deposed that SI Arivnd Kumar prepared the sketch of the knife vide Ex. PW3/A in his presence and seized the FIR No. 49/11 State Vs. Vijay 10/23 knife vide memo Ex.PW3/B and mobile phones vide Ex.PW3/C. He deposed that SI Abhay Singh prepared the site plan vide Ex.PW3/D. He deposed that he arrested the accused (correctly identified) vide Ex.PW3/E and conducted his personal search vide Ex.PW3/F. He deposed that IO recorded his statement u/s 161 Cr.P.C. at the spot. He deposed that he got conducted the medical examination of the accused from AIIMS hospital on the direction of the IO. He deposed that thereafter, he along with the accused went back to PS.
13. During his cross examination he stated that the spot was a crowded place and public persons were coming and going. He stated that he had not offered his search to the accused before conducting his casual search. He stated that he remained at the spot till 2.30 pm. He stated that IO had sent the rukka at about 2.10 pm. He stated that no one apart from the complainant was joined in the investigation by the IO. He stated that all the memos were prepared in his presence by the IO but he had not signed the same. He stated that all the memos were prepared at around 2.00 pm. He admitted that IO has not recorded the statement of any bus conductor or driver and they were not joined in the investigation. He denied the suggestion that the recovery was planted upon the accused. He denied the suggestion that the complainant gave a false complaint/deposed falsely in the court at the instance of the IO. He denied the suggestion that he was deposing falsely.
FIR No. 49/11 State Vs. Vijay 11/23
14. PW 6 SI Arvind Kumar deposed that on 18.04.2011 he was posted as SI at PS Defence Colony and on that day, on receipt of DD No. 6 A at about 11.15 am, he along with Ct. Pradeep reached the spot i.e. red light Andrewz Ganj flyover ring road, Defence Colony where they met SI Abhay Singh and Ct. Arun Kumar who had already apprehended the accused with four mobile phones and one buttondar knife. He deposed that SI Abhay Singh handed over the accused along with the recovered 4 mobile phones and knife to him and he recorded the statement of Roz Mohd. vide Ex.PW2/A and prepared the rukka on the same vide Ex.PW4/A and handed over the same to Ct. Pradeep which he took to PS for registration of FIR and came back with the copy of FIR and original rukka and handed over the same to him. He deposed that he prepared the sketch of the knife vide PW3/A and seized the knife vide memo Ex.PW3/B and mobile phones vide Ex.PW3/C. He deposed that he prepared the site plan Ex.PW3/D. He deposed that he arrested the accused (correctly identified) vide Ex.PW3/E and conducted his personal search vide Ex.PW3/F. He deposed that he recorded the disclosure statement of accused Vijay vide Ex.PW3/G. He deposed that thereafter, he recorded the statement of SI Abhay Singh, Ct. Pradeep, Ct. Arun and supplementary statement of the complainant at the spot. Ct. Pradeep got conducted the medical examination of the accused from AIIMS hospital on his direction. He deposed that thereafter, he deposited the case property with MHC(M) PS Defence Colony. He deposed that on 07.06.2011, he collected the bill receipt of mobile phone from the complainant. He deposed that on the same FIR No. 49/11 State Vs. Vijay 12/23 day, he also recorded the statement of witness Sanjay Kumar. He deposed that thereafter, he prepared the challan and filed the same in the court.
15. During his cross examination he stated that he reached at the spot around 10.30 am but he does not remember the exact time but he remained there for two hours. He stated that the spot was located at main road and vehicles were moving on the road but as such no public person was present there. He stated that accused was produced before the court same day and he was not taken in the custody prior to the order of the court for JC. He stated that he was not having any information regarding the registration number of the said bus or the driver or helper of the bus. He stated that despite inquiry complainant could not give the number of the bus or any bus ticket or the name of the driver as he stated that he was in a shock on account of the incident. He stated that disclosure statement of the accused was recorded at the spot but he does not remember the exact time. He stated that the accomplice of the accused could not be arrested as his exact/true whereabouts were not disclosed by the accused. He stated that he could not join any public witness in the investigation as no pedestrian was present there and only vehicles were moving around which had not stopped. He denied the suggestion that he had not made any sincere efforts to trace his accomplice. He denied the suggestion that no disclosure statement was made by the accused. He denied the suggestion that the recovery was planted upon the accused. He denied the suggestion that all the proceedings FIR No. 49/11 State Vs. Vijay 13/23 were done at the PS. He denied the suggestion that the complainant gave a false complaint/deposed falsely in the court at his instance. He denied the suggestion that he was deposing falsely.
16. PW7 HC Chander Pal deposed that he was posted as MHC(R) at PS Defence Colony and as per the records present FIR had been registered by ASI Jai Prakash.
17. This so far are the prosecution witnesses in the matter is concerned.
18. I have heard the arguments advanced at bar by the learned Defence counsel as also the learned APP for the State. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
19. 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.
20. It stands unambiguously established from the deposition of the prosecution witnesses specially the complainant/recovery witness Roz Mohd. as well as the answers given by the accused during his examination u/s 313 Cr.P.C.
FIR No. 49/11 State Vs. Vijay 14/23 that accused Vijay had indeed committed theft of mobile phones of complainant Roz Mohd and witness Sanjay and he was found in possession of four mobile phones out of which one belonged to witness Sanjay and for the remaining three he failed to account for the possession. It also stands established that in deed he was carrying a buttondar knife on the day of incident at the time of his arrest.
21. The star/material witnesses of the prosecution story i.e. complainant Roz Mohd. was examined by the prosecution as PW2. PW2 Roz Mohd. categorically proved that on 18.04.2011 while he was traveling in a bus near Andrews Ganj Flyover his pocket was picked and his mobile phone no. 9711710062 was stolen. He proved that he raised alarm and on suspicion apprehended accused Vijay who had by that time handed over the mobile phone of the complainant to his accomplice who managed to flee away from the spot along with the stolen mobile phone. He further proved that he along with two traffic police officials who were present at the spot managed to get hold of the accused who was trying to flee and when his search was conducted four mobile phones i.e. Ex. P1 to P4 and one knife i.e. Ex. P5 were recovered from his possession. He also proved his complaint in this regard as Ex. PW2/A and it was this complaint which formed the basis of the present prosecution.
22. Hence, the complainant proved the incident, established the identity of the accused as the perpetrator of crime and correctly identified the case property.
FIR No. 49/11 State Vs. Vijay 15/23
23. The deposition of complainant was duly corroborated by PW1 Sanjay who was also a victim of the criminal act/misdeeds of the accused. Sanjay during his deposition proved that on the day of incident i.e. 18.04.2011 while he was traveling in a bus near Khanpur Bus Stand he noticed that his brother's mobile phone make Nokia 1100 which he was carrying was missing. He further proved that despite search, it could not be found anywhere at the spot but after an hour received a phone call from PS Defence Colony informing him that his phone has been recovered. He accordingly went there and identified his phone which as informed by the police was recovered from the accused.
24. Hence, before the complainant became the victim of the criminal misdeed/act of accused Vijay, Sanjay had already suffered at his hands, but Sanjay was lucky unlike complainant Roz Mohd. as his phone was recovered from the accused at the time when he was apprehended by the complainant and police.
25. Further credence to the prosecution story was lend to the prosecution story by PW3 SI Abhay Singh and PW4 Ct. Arun Kumar. Both these witnesses were posted at Defence Colony, Traffic Circle and they proved that on the day of incident they saw the complainant chasing the accused and immediately they went to his aid and managed to apprehend accused Vijay. Both these witnesses FIR No. 49/11 State Vs. Vijay 16/23 went on to testify on the same lines as was deposed by complainant Roz Mohd. They proved the recovery of the mobile phones as well as the knife. They further proved his arrest and seizure of the recovered articles i.e. the phones and the knife vide Ex. PW3/A to G.
26. PW5 Ct. Pradeep and SI Arvind who had reached the spot upon receiving information regarding the incident vide DD no.6A duly proved and supported the claims of the complainant and the other prosecution witnesses regarding the arrest of the accused and the recovery of the mobile phones and knife in question.
27. Hence, all the prosecution witnesses consistently deposed against the accused and corroborated each other on material particulars.
28. During the course of arguments Ld. LAC Tej Narain vehemently argued that the accused is an innocent person who has been falsely implicated by the police officials in connivance with complainant Roz Mohd. and witness Sanjay. It was argued that these two public witnesses were in fact stock witnesses of the police and hence, they deposed falsely at their instance. It was argued that the recovery was planted upon the accused and no reliance could be placed upon the testimony of the police officials. To give weightage to his contentions he argued that neither the bus driver nor conductor nor any of its passengers were FIR No. 49/11 State Vs. Vijay 17/23 joined in the investigation which itself proves that the story was a concocted one. He also argued that a false disclosure statement of accused Vijay was got recorded which is proved from the fact that the mobile phone of complainant Roz Mohd. could not be recovered during the investigation nor the alleged accomplice who ran away with the phone could be arrested.
29. However, I find no merits in any of the contentions of the Ld. LAC Sh. Tej Narain.
30. Firstly, the testimony of complainant Roz Mohd. is self sufficient to nail the accused. None the less, his deposition was duly corroborated by other prosecution witnesses which included another public witness Sanjay. I have no reasons to disbelieve the complainant and the other prosecution witnesses. I find no reasons why they would depose falsely against the accused. No motive has been proved by the Ld. Defence counsel for false implication of accused. There is nothing on record to suggest that the complainant and the other prosecution witnesses including the investigating officer were inimical to the accused. In fact, there is nothing on record to suggest that the accused was known to anyone of them prior to the incident. Allegations of complainant Roz Mohd. and witness Sanjay being stocked witnesses remained vague and baseless they could not be even remotely/minutely proved by the defence.
FIR No. 49/11 State Vs. Vijay 18/23
31. Secondly, there was no need, no requirement of law that the bus driver or conductor or any of its passengers should have been joined in the investigation and the fact that they were not joined in the investigation has hardly effected the prosecution story in any manner. 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).
32. There is no requirement of law that everyone who has witnessed the oc currence, whatever there number be, must be examined as a witness. (Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Criminal 701). In Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investiga FIR No. 49/11 State Vs. Vijay 19/23 tion and (2) Normally, nobody from public is prepared to suffer any inconve nience for the sake of society.
33. As far as the testimony of police officials is concerned, I find no reasons to disbelieve them. 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. Re liance 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.
34. Thirdly, during his examination u/s 313 Cr.P.C. accused Vijay gave certain statements/explanation/answers to the incriminating material put to him which leaves no doubt that he was in deed found in possession of four mobile phones on 18.04.2011 which he had stolen and out of which one belonged to witness Sanjay (PW1).
35. The answers given by the accused Vijay to question no. 1, 2 & 3 read as under:
FIR No. 49/11 State Vs. Vijay 20/23 " It is correct that I had committed theft of mobile phones on 18.04.2011. I had stolen the mobile phones of both Sanjay and Roz Mohd. Remaining two mobiles as recovered from me were also stolen by me on the same day from passengers traveling in the bus. However, I was not carrying any knife with me and the knife was planted upon me by the police after my arrest."
" He is deposing correctly. I had stolen his mobile phone."
"He is deposing correctly. I had stolen his mobile phone".
36. These statements are admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. Reliance may be placed upon the law laid down in 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 and once the statement came up on record, no doubt remained that the accused had committed theft of mobile phones belonging of witness Sanjay as well as complainant Roz Mohd. Though, he denied that he was found in possession of the buttondar knife but as already discussed above I find no reasons to disbelieve the complainant or the other prosecution witnesses who had categorically proved that apart from the mobile phones one buttondar knife was FIR No. 49/11 State Vs. Vijay 21/23 also recovered from the accused. The way the complainant gave description of the knife prior to its desealing in the court on 08.09.2011 during his testimony leaves no doubt that the accused in deed possessed knife i.e. Ex. P5. Moreover, I fail to understand what purpose would have been served by planting the knife because once the accused was found in possession of the stolen mobile phones the planting of the knife had become immaterial/inconsequential.
37. Though, Ld. LAC Sh. Tej Narain had also argued that the alleged accomplice of accused could not be arrested and accordingly the mobile phone of complainant Roz Mohd. could not be recovered which casts serious doubts upon the prosecution case however, in view of the statement given by the accused during his examination u/s 313 Cr.P.C. clubbed with the other material on record renders the contentions of the Ld. LAC Sh. Tej Narain as completely devoid of merits. In fact, they were half hearted, last pitched attempt to save the accused. Moreover, non recovery of the phones or the arrest of the accomplice have hardly effected the prosecution case. There could have been numerous reasons for the non recovery of the phone or the non arrest of the accomplice. May be the accused deliberately did not give his complete address/particulars or the phone was thrown away by his accomplice out of fear of being arrested etc.
38. Accordingly, in view of my above discussion,accused is held guilty u/s 379 IPC r/w Section 103 D.P. Act as well as 25 of the Arms Act.
FIR No. 49/11 State Vs. Vijay 22/23
39. I order accordingly.
40. Copy of the judgment be given to the accused free of cost.
41. Let he be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao)
Court on 19.01.2012 MM (South)/Delhi.
FIR No. 49/11 State Vs. Vijay 23/23
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH:
DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS VIJAY F.I.R. No: 49/11 U/s 379/411 IPC & 25 of Arms Act P.S. Defence Colony ORDER ON SENTENCE 31.01.2012 Present: Ld. APP for the State.
Convict Vijay produced from JC.
LAC Sh. Tej Narain is also present.
Vide judgment announced on 19.01.2012 accused was convicted u/s 379 IPC r/w Section 103 D.P. Act as well as 25 of the Arms Act.
The learned defence counsel has submitted for the convict that he has already spent more than 8 months in custody and accordingly he may be given benefit of Section 428 Cr.P.C. and released on period already undergone in custody. It was further prayed that accused/convict be given benefit of section 360 Cr.P.C. and either released on probation or after due admonition.
Per contra, learned APP has very vehemently argued that the act of FIR No. 49/11 State Vs. Vijay 24/23 the accused is unpardonable. It was submitted that the accused deserve no leniency.
After giving my thoughtful consideration to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case it shall meet the end of justice if convict Vijay is sentenced to undergo 3 years RI along with fine of Rs.5000/ each for offence u/s 379 IPC and Section 25 of the Arms Act. In default of payment of fine he shall further undergo SI of 50 days each. He is further sentenced to undergo 3 months RI along with fine of Rs.200/ for offence u/s 103 D.P. Act. In default of payment of fine they shall undergo further SI of 2 days.
As accused Vijay has been in custody since 18.04.2011 till date, benefit of section 428 Cr.P.C. is given to the accused and the said period be deducted from the sentence so awarded today.
I am not inclined to give benefit of Section 360 Cr.P.C. to him because his act is unpardonable and shows his criminal bent of mind. He seems/appears to be a hard core criminal who has no inclination to leave his criminal/illegal habits. Not only, did he commit theft of four mobile phones thereby causing financial loss and mental stress to the owners of the phones but to give effect to his illegal designs and to escape/avoid his arrest he carried a knife with him. Moreover, there is a huge rise in theft cases and there is a need to curb them. Awarding of deterrent sentences like the present one shall go a long way in achieving that target.
FIR No. 49/11 State Vs. Vijay 25/23
I order accordingly.
Conviction warrants be prepared and accused be sent to custody to undergo the sentence so awarded today.
A copy of this order be given to the convict free of cost.
File be consigned to Record Room.
Announced in the open court (Gaurav Rao)
on 31.01.2012 MM(South): Delhi
FIR No. 49/11 State Vs. Vijay 26/23