Delhi District Court
State vs . Yogesh Sharma @ Yogi on 11 October, 2022
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURT, NEW DELHI
CR CASE/ 2038958/2016
STATE Vs. YOGESH SHARMA @ YOGI
State vs. Yogesh Sharma @ Yogi
FIR No. 1007/2015
Police Station : Saket
Under Section : 379/506 Part-II IPC
Date of institution : 09.09.2016
Date of reserving : 24.09.2022
Date of pronouncement : 11.10.2022
JUDGMENT
a) Serial number of the case : 2038958/2016
b) Date of commission of : 17.08.2015
offence
c) Name of the complainant : Sh. Krishanpal Basoya
d) Name, parentage and : Yogesh Sharma @ Yogi
S/o Sh. Mukesh Sharma R/o H. No. 24/8,
address of the accused Rajpur Khurd Extension, New Delhi
e) Offence complained of : 379/506 Part-II IPC
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Convicted for offence under Section 379
of IPC.
Acquitted for offence under Section
506(II) of IPC.
State Vs. Yogesh Sharma @ Yogi
FIR No. 1007/2015, PS: Saket Page 1 of 16
h) Date of final order : 11.10.2022
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. It is the case of the prosecution that on 17.08.2015 at around 02:50 PM, Sh. Krishanpal Basoya (the complainant) was sitting in the Bar Room, Saket Courts, New Delhi and had kept his black colour mobile phone (make Samsung) with two SIM Cards therein bearing Mobile No. 9654507129 and No. 9711559077 on a file, which was placed on a table. At that time, the accused wearing an orange colour t-shirt, came to the Bar / advocates' room and fled away with the mobile phone of the complainant. Thereafter, the complainant raised alarm and apprehended that boy with the help of other people. On search, the mobile phone was recovered from the underwear of that boy. Thereafter, someone called at 100 number. The police arrived at the spot and arrested the accused. At the time of the arrest, the accused threatened to kill the complainant, after his release from the jail.
CHARGE
2. Vide order dated 30.09.2016, charge for the offence punishable under Section 379/506 Part-II of the Indian Penal Code 1860 (hereinafter referred to as "the IPC") was framed against the accused, who pleaded not guilty and claimed trial.
State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 2 of 16 EVIDENCE OF THE PROSECUTION
3. Prosecution has examined four witnesses i.e. PW1 Sh. Krishan Pal Baisoya (the complainant), PW2 Ct. Manish, PW3 SI Dharambir and PW4 SI Amar Singh (the investigating officer).
4. PW1 Sh. Krishan Pal Baisoya, who is the complainant, deposed that he is a practicing advocate by profession. He deposed that on 17.08.2015 at about 02:50 PM, he was sitting in the Bar Room of Saket Court, New Delhi. At that time, he had kept his mobile phone, (make Samsung), on his table. The said mobile phone was equipped with two SIM Cards bearing Mobile No. 9654507129 and No. 9711559077. Thereafter, accused Yogesh @ Yogi, who was in orange colour t-shirt, came in the advocates' / Bar room and removed the mobile phone of the complainant from the table and fled away from the Bar room with the mobile phone. Thereafter, the complainant shouted and apprehended the accused with the help of some public persons. The accused was searched and from his underwear, the said mobile phone was recovered. An advocate called at 100 number, which resulted in arrival of the police at the spot. The complainant submitted a written complaint, Ex PW1/A, to the police. The accused was arrested, who further threatened the complainant that he would kill the complainant, after his release from the jail. The witness correctly identified the accused, and the case property i.e. the mobile phone in the photographs, Ex P3 (colly), in the court.
5. PW 2 Ct. Manish deposed that on 17.08.2015, he was on State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 3 of 16 emergency duty from 08:00 AM to 8:00 PM. On receipt of DD No. 36A by IO SI Amar Singh as to one thief being apprehended at Saket Court Bar Room, PW2 along with the IO went to the spot, where he met with the complainant i.e. Sh. Krishan Pal, Advocate. The complainant produced the accused before them alleging that the accused had taken away his mobile phone. Thereafter, PW2 deposed as to the registration of the FIR and arrest, personal search and medical examination of the accused.
6. PW3 SI Dharambir is the Duty Officer, who proved the registration of the present FIR vide Ex PW3/A on the alleged date of incident i.e. 17.08.2015.
7. PW4 SI Amar Singh is the investigating officer of this case. He deposed that on 17.08.2015, on receipt of DD No. 36A as to the apprehension of a thief, he along with Ct. Manish went to the spot i.e. Bar Room, Saket District Court. There, PW4 met with the complainant, who had produced the accused with one mobile phone, make Samsung, alleging that the theft of the said mobile phone was committed by the accused. The complainant handed over his written complaint to the investigating officer. Thereafter, the witness deposed as to the registration of the present FIR, seizure of the said mobile phone, arrest and personal search of the accused, preparation of the site plan and recording of the statement of the witnesses u/s 161 CrPC. The witness correctly identified the accused, and the case property i.e. the mobile phone in the photographs, Ex P3 (Colly), in the court.
State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 4 of 16
8. The accused was granted an opportunity to examine the prosecution witnesses. However, he did not avail said opportunity.
STATEMENT / DEFENCE OF THE ACCUSED
9. In his statement recorded under Section 313 of the Code of Criminal Procedure 1973, the accused denied the entire evidence against him. He stated that he is innocent and has been falsely implicated in this case. Accused did not lead any evidence in his defence.
10. It is pertinent to note that at the fag end of the proceedings, the accused had moved an application for recall of witnesses under Section 311 of the Code. However, the application was dismissed vide order dated 16.09.2022 for being vague and for not establishing any cogent reason for recalling the witnesses. Consequently, the matter was listed for final arguments.
ANALYSIS AND FINDINGS
11. The record has been thoroughly and carefully perused. The respective submissions of Sh. Rajat Bansal, learned Assistant Public Prosecutor for the State and Sh. Vishal Rawat, Ld. Counsel for the accused have been considered.
State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 5 of 16 Re: Allegation of commission of offence of theft under section 379
12. In order to bring home the guilt of the accused for committing offence punishable under Section 379 IPC, prosecution is required to prove that the accused dishonestly removed the stolen articles from the possession of Complainant/ PW-1 without his consent. In a case under Section 379 of IPC, the prosecution is required to prove the following ingredients -
1. that the accused had dishonestly taken the property;
2. that the property was movable;
3. that the property was taken out of the possession of another person / complainant;
4. that the property was taken without the consent of that person/ complainant;
5. that there must be some moving of the property in order to accomplish the taking of it.
13. The star witness of the prosecution is the complainant himself. While addressing final arguments, the Ld. Counsel for accused has argued that apart from the complainant, no other witnesses were examined to support the case of the prosecution. It was also averred that the prosecution has also not placed on record the CCTV footage of the bar room which would have shown the entire incident.
14. It is indeed correct to state that the entire case of the prosecution hinges on the testimony of PW1/Complainant who is the informant as well as the victim. His testimony is not in deviation from the facts divulged in his original complaint Ex. PW1/A, on the basis of which State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 6 of 16 the subject FIR was registered. Even the Ld. Counsel for accused has not been able to establish any material contradiction(s) in the testimony of the complainant/PW1 while addressing final arguments. In my opinion, the evidence of PW1 is reliable and trustworthy, especially in light of the fact that all the police witnesses especially the IO/PW4 has corroborated the testimony of PW1 on all material aspects.
15. It is established principle of law that conviction can be based on the sole testimony of the complainant if it is reliable and free from blemishes. In Namdeo vs. State of Maharashtra (Crl. Appeal No. 914/2006 decided on 13.03.2007), the Hon'ble Supreme Court relied upon its earlier decision in Vadivelu Thevar vs. State of Maharashtra (1975 SER 981) wherein it was observed that:
"1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for example in case of a child witness or an accomplice or a witness of analogue character.
3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
16. Thus, the Hon'ble Supreme Court has time and again held that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 7 of 16 truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
17. As regards the argument advanced by Ld. Counsel for the accused that in the instant case not a single public person has been examined or arrayed as a witness by the prosecution to corroborate the prosecution's case, it is pertinent to mention that non-examination of public person is not fatal to the case of the prosecution as observed by the Hon'ble Supreme Court in Sarwan Singh vs. State of Punjab [(2003) 1 SCC 240] wherein it was held that:-
"As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad and another vs. State (Delhi Admn.) (2002) 2 SCC 646, wherein this Court in paragraph 12 observed:
"12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW5 and PW7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournment in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence ....""
18. In State of U.P. vs. Anil Singh [AIR 1988 SC 1998], the Hon'ble Supreme Court while dealing with similar contention State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 8 of 16 observed as under:
"In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available - if they are so, the prosecution should be able to prove the case with their assistance."
19. From the afore-noted judicial decisions, the legal position that can be culled out is that the factum of non-examination of public/independent witnesses is not fatal to the case of the prosecution in every case. It depends upon the additional factor whether the evidence led by the prosecution inspires confidence or not. If the evidence led by the prosecution is otherwise credible and trustworthy, the non-examination of independent/public witness is of no consequence. Moreover it is settled principle of law that it is the quality and not the quantity of evidence that is necessary for the prosecution to prove its case and there is no mandatory rule or law that non-examination of public witness in all circumstances would vitiate the trial.
20. Further, I do not find force in the argument of Ld. Counsel for State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 9 of 16 accused that the case property was not recovered from the accused. It is settled position of law that recovery of stolen property is not sine qua non to prove the commission of theft by the accused. Mere non- recovery of the stolen property from the accused will not vitiate the case of the prosecution if, the testimonies of the witnesses steadfastly points towards the guilt of the accused.
21. The Ld. Counsel for accused has also averred that CCTV footage of the bar room should have been obtained and filed by the prosecution to substantiate the allegations of theft. However, this does not hamper the case of the prosecution. The Hon'ble Supreme Court in Shivaji Sahabrao Bobade and another vs. State of Maharashtra [AIR 1973 SC 2622] has held that:
"When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered."
22. Further, non- seizure of the CCTV footage if, available amounts to an error on the part of investigating agency. It is the responsibility of the Investigating officer to collect all the relevant evidence necessary to prove the prosecution's case. Be that as it may, it is well settled that if certain dodges have been left by the investigating agency that alone shall be no reason for rejecting the prosecution's case as a whole, if the account given by the principle eye witness is State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 10 of 16 natural in the circumstances and there is little reason to doubt its intrinsic credibility, and no reason is suggested as to why the witness would falsely implicate the accused leaving out the real culprits. There is absolutely no reason to discard the testimony of PW-1.
23. The Ld. Counsel for accused, at the stage of final arguments, has averred that there was an altercation between the accused and the complainant and the complainant has filed a false case against the accused in a vindictive manner. However, the accused has miserably failed to even raise a doubt with respect to said averment as he has not cross-examined the complainant in detail on such aspects.
24. From a bare reading of PW1's testimony, it is revealed beyond any reasonable doubt that the accused dishonestly removed the case property from the complainant's possession without his consent. The complainant has correctly identified the accused as the one who took his mobile phone. Nothing material could be elicited from the cross- examination of the complainant by the accused. Moreover, testimony of the police officials is in conformity with the complainant's version. In the case at hand, through the testimony of the eye witness/PW1/complainant, prosecution has been able to proffer a trustworthy and reliable account of the incident in question and the defense has not been able to raise doubts on the prosecution version. At the same time, the testimony of the IO has gone unrebutted. The same has to be accepted at its face value. Therefore, in light of the State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 11 of 16 testimony of PW1 and the IO, the court is of the view that no further corroboration is required to prove the facts which form the basis of the charge framed against the accused under Section 379 of IPC.
Re: Allegation of commission of offence of criminal intimidation under Section 506 Part II of the IPC
25. Section 506 of the IPC provides punishment for criminal intimidation and states that:
"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
26. Section 506 IPC deals with punishment for criminal intimidation. Section 503 defines the said offence. It has following essentials.
1. Threatening a person with any injury -
(a) to his person, reputation or property or;
(b) to the person or reputation of any one in whom that person is interested.
2. The threat must be with intent;
(a) to cause alarm to that person, or State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 12 of 16
(b) to cause that person to do any act which he is not legally bound to do as means of avoiding execution of such threat; or
(c) to cause that person to omit to do any act which that person is legally entitled to do as means of avoiding execution of such threat.
27. The Hon'ble High Court of Delhi in Kanshi Ram vs. State (2000 SCC OnLine Del 385) has held that mere threat which do not cause any alarm to the complainant is no offence under the IPC and such threats do not fall within the mischief of Section 506 of IPC. Similarly, in Amitabh Adhar vs. Govt. of NCT of Delhi (2000 CrLJ 4772) it has been held that mere extension of threats without any alarm having been caused to the complainant is no offence in the eyes of law. There is not even a whisper in the complaint that the threat alleged to have been given by the accused caused any alarm to the complainant.
28. The Hon'ble High Court of Orissa in Amulya Kumar Behera vs. Nabaghana Behera alias Nabina and others (1995 SCC OnLine Ori 317) has observed:
"Therefore, intention must be to cause alarm to the victim and whether he is alarmed or not is really of no consequence. But material has to be brought on record to show that intention was to cause alarm to that person. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in application of Section 506 IPC. The gist of the State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 13 of 16 offence is the effect which the threat is intended to have upon mind of person threatened. It is dear that before it can have effect upon his mind it must be cither made to him by the person threatening or communicated to him in some way. The Section has undergone a complete transformation since its first draft which, after enumerating certain offences such as murder, hurt, mischief, house breaking, unnatural offence and rape, made the offence inter alia, depend upon the causing of distress or terror to the person intimidated. (Clause 432). The word "distress" was naturally objected to, though the Law Commission defended its retention. (2nd Report, Section 417). The original clause was apparently taken from Russel's Work on Crimes and it was both disjointed and incomplete. The present Section is practically new, and the substitute of the word "alarm" for distress and terror is intended to confine the offence only to cases where the effect therreof is to cause more pain than is covered by those words. The anxiety and mental anguish caused by an injury threatened may often be as or even greater than the actual injury. Lord Ellenborough said "To make it indictable, the threat must be of such a nature as is calculated to overcome a firm and prudent man. ... The law distinguishes between threats of actual violence against the person or such other threats as a man of common firmness cannot stand against and other sorts of threats". Intention is a mental condition which has to be gathered from the circumstances of the case. The threat must be intended to cause alarm from which it follows that, ordinarily, it would be sufficient for that purpose. The degree of such alarm may very in different cases, but the essential matter is that it is of a nature and extent to unsettle the mind of the person on whom it operates and take away from his acts that element of free voluntary action which alone constitutes consent. The case where the threat produces an alarm is comparatively a simple one, for all that has then to be proved is that threat was given and that the alarm was due to the threat: but where the threat has not that effect, it involves a question whether it was sufficient to overcome a man of ordinary nerves. The Court may hold it to be an empty boast, too insignificant to call for penal visitation of Section 506. "Intimidate" according to Webstar's Dictionary means" (1) to State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 14 of 16 make timid, make afraid, overawe; (2) force or deter with threats or violence, cow". Threat referred to in the Section must be a threat communicated or uttered with intention of its being communicated to the person threatened for the purpose of influencing his mind. Question whether threat amounts to a criminal intimidation or not does not depend on norms of individual threatened if it is such a threat as may overcome ordinary free will of a man of common firmness. "Threat" is derived from Anglo-sexam word "threotou to life", (harass). It is the declaration of an intention to inflict punishment, loss or pain on another. "Injury" is defined in Section 44. It involves doing of an illegal act. If it is made with intention mentioned in the section, it is an offence. Whether threat was given with intention to cause alarm to the person threatened has to be established by evidence to be brought on record. Material in that regard is totally lacking in the case at hand. Though learned JMFC has erroneously held that the complainant having not got terrified the section has no application, yet he is is right in his conclusion that no evidence was there to show that the accused persons intended to cause alarm to the complainant."
29. From a bare perusal of the record, it is crystal clear that the threat allegedly given by the accused to the complainant at the time of his arrest does not meet the threshold of criminality which is mandated in Section 503 of IPC. Furthermore, as per the complainant, the threat was given by the accused at the time of arrest. However, this fact was not corroborated by the police officials who were present at the time of arrest and have deposed as witnesses. Therefore, it is my considered opinion that there is no sufficient proof with respect to the alleged threat and in arguendo, even if it is agreed that the accused threatened the complainant, the circumstances brought on record by the prosecution do not lead to an inference that the degree of alarm caused by the threat is such that it to unsettle the mind of the person State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 15 of 16 on whom it operates and take away from his acts that element of free voluntary action which alone constitutes consent. Therefore, the prosecution has not been able to establish offence under Section 506 Part II against the accused.
CONCLUSION
30. Keeping in view the above discussed facts, circumstances and evidence adduced in the instant case, this court is of the considered view that the prosecution has successfully proved all the ingredients of the alleged offence under Section 379 of IPC. In view thereof, accused Yogesh @ DK S/o Pradeep Kumar is hereby convicted for offence under Section 379 of IPC.
31. Further, in addition to the above, with respect to the charge framed under Section 506(II) of IPC, it is held that prosecution has failed to establish its case under Section 506(II) of IPC. The accused is acquitted of the offence under Section 506(II) of IPC.
Dictated and announced in open Court on 11.10.2022.
(T. Priyadarshini) Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 11.10.2022 State Vs. Yogesh Sharma @ Yogi FIR No. 1007/2015, PS: Saket Page 16 of 16