Delhi District Court
State vs . on 5 February, 2010
1
IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI.
In re:
State
Vs.
Ajgar @ Asgar & Anr.
FIR NO. 409/08
P.S. Krishna Nagar
1. Sr. No. of the case : 171/2/08
2. Date of institution : 21.11.2008
3. Name of the complainant : Mohd. Sohail
4. Date of commission of offence: 24.09.2008
5. Name of accused : Ajgar @ Asgar
S/o.Rehmat Ali @ Khansama,
R/o. N.A. (Vagabond, Delhi).
(Accused is in judicial
custody)
6. Offence complained of : 457/380/411/34 IPC
7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the Judgment: 27.01.2010
9. Final order : Convicted
10. Date of such Judgment : 05.02.2010
State vs. Ajgar @ Asgar; FIR No. 409/08
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J U D G M E N T
1. The FIR No. 409/08 u/s. 457/380/411/34 Indian Penal Code, 1860 (IPC) was registered at PS Krishna Nagar on the complaint of Mohd. Sohail whereby it was alleged that on 24.09.2008 at about 11.00 p.m., when he was sleeping at the first floor of the factory at house no. 4925/C7, East Old Seelampur, Delhi, he heard some noise and came down. He observed that two boys were running away with the ladies suit salwar. He and his brother apprehended them with the help of public persons who gave them beating also. Police reached at the spot and after culmination of investigation proceedings, the accused was charge sheeted and sent up for the trial. The case of second accused Puneet was referred to Juvenile Justice Board u/s 7A of JJ Act, 2000, vide order dt. 13.01.10.
2. In light of the above stated facts and proceedings, vide order dt. 16.03.2009, this court framed charges u/s. 457 and 380 IPC against accused, to which he pleaded not guilty and claimed trial.
State vs. Ajgar @ Asgar; FIR No. 409/08 3
3. For proving its case, the prosecution produced six witnesses. 3A. PW1, complainant Mohd. Sohail, deposed on the lines of his first statement given to police. He also mentioned that sixteen ladies suits were recovered from the possession of accused Asgar. Further he stated that accused persons entered into his factory after breaking open the lock. Police recorded his statement Ex.PW1/A and took possession of the ladies suits vide seizure memo Ex.PW1/B and of broken lock vide seizure memo Ex.PW1/C. Accused was arrested vide memo Ex.PW1/E and his personal search was conducted vide memo Ex.PW1/G. Further witness correctly identified the accused, broken lock Ex.P1 and 16 stitched ladies suits recovered from the possession of accused Asgar Ex.P2 in the court.
3B. PW2, constable Ashwani Kumar stated that on 24.09.2008, he was on patrolling duty with constable Baleshwar and ASI Jaipal and at about 11.0011.30 p.m. they saw that public persons had apprehended two thieves at Gali no. 1, Old Seelampur. Complainant Mohd. Sohail produced the accused persons, broken lock and clothes tied in two different chunnies before them and he stated that both the accused State vs. Ajgar @ Asgar; FIR No. 409/08 4 persons have committed theft of suits after breaking open the lock of the factory. Knot of the gathries was opened and 16 and 15 suits were taken out and same were sealed in a pulanda with impression JPS and seal was handed over to him. Further witness correctly identified the broken lock Ex.P1, recovered suits Ex.P2 and accused persons in the court. 3C. PW3, constable Baleshwar testified on the lines of PW2. Apart from that, it was mentioned that ASI Jaipal Singh prepared the rukka and handed over the same to him for registration of the case. He also correctly identified the accused in the court.
3D. PW4, HC Surender, proved the FIR Ex. PW4/A. 3E. Shoabe (PW5) narrated the facts mentioned by PW1 and correctly identified the accused persons in the court. 3E. PW6, IO ASI Jaipal Singh deposed on the lines of PW2.
Moreover, he mentioned that he deposited the case property in malkhana and prepared the crime report of the accused persons Ex.PW6/C. Further he deposed that challan was filed after completion of the investigation. IO correctly identified the broken lock Ex.P1, recovered clothes Ex.P2 and accused in the court.
State vs. Ajgar @ Asgar; FIR No. 409/08 5
4. After conclusion of prosecution evidence, the accused was examined in accordance with section 313 Cr.P.C. All the allegations of prosecution side were stated to be incorrect. It is further stated by accused Ajgar that he does not know complainant (PW1) and his brother PW5. Further he stated that on the date of incident, he was sitting in a park at about 7.00 p.m. and complainant and his brother came alongwith police officials and falsely implicated him in this case. However, accused did not lead any evidence in his defence.
5. I have heard the State through Sh. Jitender Kumar, Learned Assistant Public Prosecutor and Learned defence counsel, Ms. Sangeeta Jain for the accused.
6. Ld. APP for the State summed up that prosecution has proved its case by way of oral as well as documentary evidence as complainant (PW1), PW5 and other official witnesses have supported the prosecution case on all material aspects of the case and therefore, accused may be convicted for the offences he is charged with. Per contra, Ld. Defence State vs. Ajgar @ Asgar; FIR No. 409/08 6 Counsel has argued that accused Ajgar was not present at the spot and has been lifted at the instance of complainant and his brother. It is also emphasized that though the accused and stolen garments were handed over to police officials in the presence of local residents, yet no public witness was joined during investigation. It is stressed that such an omission casts doubt on the prosecution story. Further Ld. defence counsel pointed out certain contradictions in the prosecution evidence.
7. As far as the objection as to nonjoining of public witness is concerned, the same can be overruled on the ground that complainant and PW5 have fully supported the case of prosecution. They are not official witnesses. Moreover, it is not the case of accused that they have deposed against him out of any motive or prior enmity.
8. Other point of argument raised by defence side is that there are several contradictions in the testimonies of prosecution witnesses. It is pointed out that PW1 has mentioned that 8 workers were working in his factory; that work of ironing of clothes was used to get done from outside State vs. Ajgar @ Asgar; FIR No. 409/08 7 and police came at the spot within 45 minutes, whereas, PW5 has deposed that 5/6 workers were working in the factory; that they used to iron the stitched clothes and police came at the spot within 10 minutes. It was also mentioned that though the site plan was stated to have been prepared by IO at the instance of complainant though the site plan does not bear his signature. In my view, above mentioned minor discrepancies do not have bearing on the decision of the case on merit particularly when the eye witnesses PW1, PW5 and other official witnesses have supported the prosecution case on all material aspects. On this point, observations of the Apex Court given in the case titled as Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat reported as AIR 1983 Supreme Court 753, are worth mentioning :
"...Over much importance cannot be attached to minor discrepancies. The reasons are obvious :
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2)......................................................................................... .............................................................................................. (7).........................................................................................
6. Discrepancies which do not go to the root of the matter State vs. Ajgar @ Asgar; FIR No. 409/08 8 and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses."
9. The real tests for either accepting or rejecting evidence are how consistent the story is with itself, how it stands the test of cross examination and how it fits in with rest of the evidence and the circumstances of the case. If we have a close look upon the testimonies of the prosecution witnesses, the same are cogent, consistent and inspire confidence. The eyewitnesses have withstood the test of cross examination and their deposition are well supported by official witnesses. Therefore, I do not find any ground to disbelieve the prosecution version. At the same time it is worth noticing that though accused has mentioned in his statement recorded u/s. 313 Cr.P.C. that he was apprehended from a park on the date of incident by police officials whereas, Ld. defence counsel has given a contrary suggestion to IO (PW6) that accused was picked up from his house.
10. The upshot of aforesaid is that the prosecution has proved its State vs. Ajgar @ Asgar; FIR No. 409/08 9 case beyond reasonable doubts and therefore, the accused deserves conviction u/s. 457 and 380 IPC. Ordered accordingly.
Announced in the open court ( Vivek Kumar Gulia )
On 5 Day of February, 2010 MMI (East)
th
(Total nine pages) Karkardooma Courts, Delhi.
State vs. Ajgar @ Asgar; FIR No. 409/08
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IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI
FIR NO. 409/08
P.S. Krishna Nagar
ORDER ON THE POINT OF SENTENCE
05.02.2010
Present: Ld. APP for the State.
Convict is produced from JC with counsel
Ms. Sangeeta Jain, from Legal Aid Cell.
Heard on the point of sentence.
It is stated by convict that he is a man of young age and only bread winner of his family. On the other hand, Ld. APP submitted that convict be sentenced to maximum imprisonment.
Considering the aforesaid submissions and the fact that accused is in JC since 25.09.2008 i.e. for the last more than 13 months, interest of justice would be served if convict is sentenced to simple imprisonment for the period of one year alongwith fine of Rs. 1000/ for the offence punishable u/s. 457 IPC. In default of payment fine, accused shall further undergo SI for one month. For the offence punishable u/s. 380 IPC, convict shall undergo SI for 6 months alongwith fine of Rs. 1000/. In default of payment of fine, convict shall further undergo SI for one month. Both sentences shall run concurrently.
Accused is in confinement since 25.09.2008. It is stated on State vs. Ajgar @ Asgar; FIR No. 409/08 11 behalf of convict that he is unable to pay the fine amount. Convict has already remained in custody for more than 13 months, therefore, he is given benefit of section 428 Cr.P.C. Convict be set at liberty, if not required in any other case.
Copy of order be given to the accused free of cost.
Vivek Kumar Gulia MMI(East)/KKD Courts/05.02.2010 State vs. Ajgar @ Asgar; FIR No. 409/08 12 State vs. Ajgar @ Asgar; FIR No. 409/08