Delhi District Court
State vs Kapil Manva Chor on 22 November, 2023
IN THE COURT OF MS.NEHA PALIWAL SHARMA,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI
COURTS, DELHI.
CNR No. DLWT01-009412-2022
Case No.656/2022
FIR No. 402/2022
PS Nangloi
State
v.
(1) Kapil @ Manva Chor
S/o Sh.Om Prakash
R/o F-7W-49, Jhuggi no. 143,
Sultan Puri, Delhi.
(2) Deepak @ Karan
S/o Sh. Balbir,
R/o F-7/63, Sultan Puri,
Delhi.
Date of Institution : 18.08.2022
Date of committal : 26.09.2022
Date of reserving Judgment : 17.11.2023
Date of Decision : 22.11.2023
Final Judgment :Accused persons namely
Kapil @ Manva and
Deepak @ Karan are
convicted for the offence
punishable under section
411 IPC. Accused Kapil
@ Manva is also convict-
ed for the offence punish-
SC No. 656/2022
State v.Kapil @ Manva Chor & Anr. Page No. 1/25
able under section 25
Arms Act.
Accused Kapil @ Manva
is acquitted from the
offences punishable under
section 394/34 IPC, 397
IPC, 458/34 IPC and 27
Arms Act. Accused
Deepak @ Karan is
acquitted from the
offences punishable
under section 394/34 IPC
and 458/34 IPC.
JUDGMENT
Accused persons namely Kapil @ Manva and Deepak @ Karan were arraigned for trial on the allegations that on 28.05.2022, at about 03:20 am, they both, in furtherance of their common intention, clandestinely entered inside house number C-158, Gali no.19, Rajdhani Park, Nangloi, Delhi, armed with deadly weapon, that is, knife and committed robbery of two mobile phones make Samsung from complainant Vikram Singh and Realme from Badal/friend of complainant and while committing robbery, also caused knife injury to complainant Vikram Singh. Thereafter, on 03.06.2022, accused Kapil @ Manva was apprehended and was found in possession of mobile phone make Realme of victim Badal alongwith one knife in contravention of Arms Act and accused Deepak @ Karan was apprehended and was found in possession of mobile phone make Samsung of complainant/victim Vikram Singh.
SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 2/25Prosecution case in brief, registration of FIR and investigation conducted :
1. On 28.05.2022, on receipt of DD no.39A, IO/HC Birbal Singh reached the spot, that is, C-158, Gali no.19, Rajdhani Park, Nangloi, Delhi, where caller Vikram Singh and his friend Badal met him. As caller Vikram Singh was injured, IO called constable Shekhar from the Police Station and sent both the victims to the hospital alongwith constable Shekhar for their medical examination. The victims namely Vikram and Badal were examined vide MLC no. 13224/22 and MLC no. 13225/22, respectively. Thereafter, statement of complainant/injured/victim Vikram Singh was recorded.
2. It was stated by injured/complainant Vikram Singh that he is a migrant labour and for the past five years works with a contractor in Delhi. He resides at the construction site itself. For the past 8-10 days, he alongwith other labours was working and residing at construction site bearing no. C-158, Gali no.19, Rajdhani Park, Nangloi, Delhi. On 27.05.2022, he alongwith his friend Badal had gone to sleep at about 11:00 pm. At around 03:20 am, he heard some noise, upon which both he and his friend Badal woke up. They saw that two young boys aged about 20-25 years had trespassed in their room. When one of those boys tried to lift his mobile phone make Samsung A-13 blue colour, he held the hand of that boy however, that boy forcibly snatched phone from his hand. The second boy snatched the mobile phone make Realme, SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 3/25 Vodafone Sim of his friend Badal from the hand of his friend.
Thereafter, both those boys started running towards the street. He and his friend chased them in the street and he was able to apprehend one of them. However, in the meanwhile, the second one took out one knife type object and hit on his hip as a result, he and his friend Badal were scared and stepped back and both those boys ran away after snatching their mobile phones. They can identify those two boys if shown to them. Due to fear and night time, they did not inform anything to anybody and went to sleep and in the morning, they called the police.
3. On the basis of statement of complainant Vikram Singh and his MLC, rukka was prepared by the IO for the offences under sections 394/397/34 IPC and the FIR was got registered. Investigation was handed over to ASI Sanjay. Site plan was prepared at the instance of complainant Vikram Singh. Statements of witnesses were recorded u/s 161 Cr.P.C.
4. On 03.06.2022, on the basis of information given by secret informer that two boys, who had robbed the mobile phones in the present case, will come at Kirari Fatak, Camp no.2, Nangloi, Delhi to sell the said robbed mobile phones and if raided, they can be apprehended, raiding party was prepared by ASI Sanjay alongwith HC Nityadev and Ct.Mukesh. Thereafter, they alongwith the secret informer reached at Kirari Fatak. At abut 06:00 pm, two boys were seen coming on foot from the side of Kirari and on the pointing out of secret informer, they SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 4/25 were apprehended. They disclosed their names as Kapil @ Manva s/o Sh. Om Prakash and Deepak @ Karan s/o Sh. Balbir. Thereafter, cursory search of both the said persons was conducted and from the search of accused Kapil @ Manva, one mobile phone, sky blue colour, make Realme model RMX 2189 and one button actuated knife were recovered, from the left side pocket of his worn pant. The IMEI number of the said mobile phone was checked. From the search of accused Deepak @ Karan, one another mobile phone, sky blue colour, make Samsung A-13 was recovered from the left side pocket of his worn pant. The IMEI number of the said mobile phone was also checked. Thereafter, both the abovesaid mobile phones were seized and sealed. The sketch of the knife was prepared and the knife was found having total length 23.2 cm and the length of the blade was 10.5 cm and its breadth was 2.5 cm and the length of the handle was 12.7 cm. The said knife was also seized and sealed and seal after use was handed over to Ct. Mukesh.
5. Both the accused persons were arrested in the present case and were medically examined. The case properties were deposited in the malkhana. Both accused persons were produced before the ld. MM for conducting their Test identification Parade however, they refused to participate in the TIP proceedings.
6. On the MLC of injured Vikram Singh bearing no. 13224/22, the doctor opined the nature of injury as simple and on MLC no. 13225/22 of SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 5/25 victim Badal, the doctor mentioned "no fresh external injury'. Copy of the bill of robbed mobile phone was obtained from complainant Vikram Singh. After investigation, charge-sheet was filed against both the accused persons for the offences punishable under sections 394/397/411/34 IPC and Section 25/27 Arms Act.
Trial Proceedings :
Charge :
7. Charge for the offences punishable under sections 394 IPC, 458 IPC, both read with section 34 IPC and section 411 IPC was framed against accused Deepak @ Karan and for the offences punishable under sections 394/34 IPC read with section 397 IPC, 458 IPC read with section 34 IPC, section 27 Arms Act and Section 25 Arms Act was framed against accused Kapil @ Manva vide order dated 04.01.2023, to which they both pleaded not guilty and claimed trial.
Admission/denial of documents :
8. Both the accused persons had admitted the following documents under section 294 Cr.P.C. :
(a) MLC no. 13224 of injured Vikram, Ex.A.1 and MLC no. 13225 of victim Badal, Ex.A.2, both prepared by Dr.Gurdeep, CMO SGM hospital, Nangloi, Delhi. They also admitted the nature of opinion given by Dr. Gurdeep as simple on the MLC of injured Vikram.
(b) Registration of FIR No. 402/2022, PS Nangloi, Ex.A.3 and certificate under section 65B of Indian Evidence Act Ex.A.4 of duty SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 6/25 officer.
Prosecution evidence :
9. The prosecution in support of its case had examined eight witnesses, viz. PW-1 Sh.Vikram Singh, PW-2 Sh.Satvinder, PW-3 Sh.Badal, PW-4 HC Nityadev, PW-5 HC Birbal Singh, PW-6 HC Shekhar Kumar, PW-7 ASI Sanjay Kumar and PW-8 SI Dinesh.
10.PW-1 Sh. Vikram Singh is the complainant/injured in the present case. 10.1. He had deposed that at the time of incident, he used to work as labour under a contractor. Their work was going on at C-158, Gali no. 19, Rajdhani Park, Nangloi, Delhi and he used to sleep at night at the site. On 27.05.2022, he alongwith his colleague namely Badal, who also used to work as labour on that site, went to sleep at about 11:00 pm. At about 03:30 am, he woke up after listening to some noise. Badal had also woken up. They saw that two persons, aged about 20-25 years had entered into their room and one another person was standing outside the room. Out of the said persons, one person lifted his mobile phone make Samsung A13 of blue colour. He held the hand of that person in order to save his mobile phone but that person snatched his mobile phone. The second person, who was having knife, attacked him with the said knife and caused stab injury on his hip. The person who snatched his mobile phone also took the mobile phone make Realme, of his friend Badal, from his friend Badal. After robbing the mobile phones, both the said persons started to escape. He and his friend Badal SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 7/25 chased them and when they reached in the street, the third person who was already standing outside, started pelting stones on them. They were able to apprehend one of them however, the second person again inflicted stab injury to him with the knife, due to which, the apprehended person got freed from their grip and they all escaped. 10.2. He further deposed that as it was late night hour, they did not call the police at that time and called the police in the morning at about 11:00 am. They were taken to Sanjay Gandhi hospital by the police for medical examination. His statement (Ex.PW-1/A) was recorded by the IO. Site plan (Ex.PW-1/B) was prepared at his instance. He had given photocopy of bill of his mobile phone, Mark PW-1/X, to the police. 10.3. He further deposed that his robbed mobile phone was purchased by him through his nephew Satvinder on installment basis and his nephew had taken the bill of said mobile phone in his name. After recovery of his mobile phone, he had obtained the possession of said mobile phone, make Samsung A13, on superdari.
10.4. He identified his mobile phone Ex.P.1 and mobile phone of his friend Badal Ex.P.2 before the Court. He further deposed that he cannot identify the accused persons as it was dark at the time of incident. He further deposed that he cannot identify whether knife Mark X.2 was used in the commission of offence. He was cross-examined by the ld. Addl. P.P. for the State with the permission of the Court however stated that he cannot identify the accused persons as there was darkness at the spot at the time of incident.
10.5. He, in his cross-examination by the defence, deposed that site SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 8/25 plan was prepared at police station, that accused persons were not arrested in his presence and that he had not given any physical description of the said robbers to the police officials.
11.PW-2 Sh.Satvinder had deposed that PW-1/complainant Vikram Singh is his uncle. He had purchased mobile phone make Samsung A-30 in his name and had given the same to his uncle/complainant Vikram Singh. The mobile phone was used by his uncle Vikram Singh. The mobile phone was purchased on installment basis and installments were paid by his uncle Vikram Singh. He identified the copy of bill Mark PW-1/X of the said mobile phone make Samsung.
12.PW-3 Sh.Badal is another victim.
12.1. He had also deposed that he used to work as labour and used to stay at the construction site. PW-1 Vikram Singh was his friend and was from his native village. They both used to work as labour. On the day of incident, probably in May, 2022, in the night time, his mobile phone and mobile phone of Vikram were robbed. When he and Vikram were sleeping, one person snatched his mobile phone make Realme blue colour and another person snatched the mobile phone of Vikram. Thereafter, they both started to escape. He and Vikram chased them and one person was even apprehended by Vikram. They however started beating them. He could not see the weapon by which injuries were caused to Vikram Singh and thereafter, both those persons escaped from there. He had not sustained any physical injury however, was SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 9/25 medically examined. Vikram had sustained injury on his hip. They had shown the place of incident to the police. He identified his mobile phone make Realme blue colour Ex. P.2 before the Court. He further deposed that he can identify the mobile phone make Samsung A-13 Ex.P.1 of Vikram. The identity of the said mobile phone was not disputed at the time of deposition.
12.2. He however deposed that he cannot identify the accused persons as the incident took place during night. He further deposed that he cannot say whether the weapon of offence was knife Mark X.2 as he could not see the weapon of offence due to darkness. 12.3. He, in cross-examination, deposed that he could not get his mobile phone released on superdari as he resides at his native village in District Saharanpur, U.P. and could not visit Delhi. He further deposed that he had given bill of his mobile phone to the IO through whatsapp application.
13.PW-4 HC Nitya Dev is the witness of investigation and recovery. He had deposed on the same lines as that of the final report and had deposed that accused persons were apprehended on 03.06.2022 at 06:00 pm from Kirari Phatak, Camp no.2, Nangloi. On the cursory search of accused Kapil, mobile phone sky blue colour make Realme, model RMX 2189, Ex.P.2 and one button actuated knife, Ex.P.3 were recovered. On the cursory search of accused Deepak, mobile phone sky blue colour make Samsung A-13, Ex.P.1 was recovered. Both the said mobile phones and knife were seized. Sketch of knife Ex.PW-4/A was SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 10/25 prepared and the knife was seized vide seizure memo Ex.PW-4/B. The mobile phones were seized vide seizure memo Ex.PW-4/C. Accused persons were arrested pursuant to their personal searches vide memos Ex.PW-4/D to Ex.PW-4/G. Their disclosure statements were recorded. He deposed in his cross-examination that they reached at Kirari Phatak by government vehicle at about 05:35 - 05:40 pm. He admitted the presence of public persons and traffic at Kirari Phatak at the time of apprehension of accused persons. He deposed that IO had asked the public persons to join investigation however, none agreed. He admitted that no notice was given to the public persons who refused to join investigation.
14.PW-5 HC Birbal Singh is the initial IO, who had received the PCR call vide DD no.39A, Ex.PW-5/A regarding robbery after causing stab injury by knife by four persons. He deposed on the same lines as that of final report and identified his signatures on the statement of complainant Ex.PW-1/A. He further deposed that he prepared rukka and got FIR registered through Ct. Shekhar.
15.PW-6 HC Shekhar Kumar is another witness of investigation. He had also deposed on the same lines as that of PW-5 and IO/ASI Sanjay.
16.PW-7 ASI Sanjay Kumar is the main IO. He had deposed in consonance with the final report and had deposed about the investigation conducted by him and the various aspects of case covered by him. He had deposed SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 11/25 with respect to preparation of site plan Ex.PW-1/B and search of accused persons. He had also deposed with respect to apprehension of accused persons on 03.06.2022 alongwith case properties at the instance of secret informer. He had identified the signatures on the sketch of knife Ex.PW-4/A; seizure memo of knife Ex.PW-4/B; seizure memo of mobile phones Ex.PW-4/C; and arrest memos, personal search memos and disclosure statements of accused persons Ex.PW-4/D to Ex.PW-4/H. He had also correctly identified the accused persons as well as case properties, that is, mobile phone of Badal, Ex.P.2 and knife Ex.P.3 before the Court. He further deposed that he can identify the mobile phone of PW-1 Vikram Singh before the Court. The identity of the mobile phone was not disputed at the time of his examination as the same was already exhibited as Ex.P.1 in deposition of PW-1. He admitted that Kirari fatak is a public place. Bill of mobile phone of sky blue colour, which was recovered from the possession of accused Kapil, was not on judicial record.
17.PW-8 SI Dinesh is the subsequent IO. He had deposed that on 24.06.2022, he had moved an application, Ex.PW-8/A for TIP of both the accused persons however, both the accused persons refused to join the TIP proceedings. He identified the TIP proceedings Ex.PW-8/B (colly.) before the Court. Complainant Vikram had given him the copy of bill of his mobile phone, Mark PW-1/X. Victim Badal had told that he will produce the bill of his mobile phone during trial.
SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 12/2518.Prosecution evidence was closed vide order dated 18.10.2023 on the submissions of ld. Addl. P.P. for the State that all the prosecution witnesses have been examined.
Statements of accused persons u/s 313 Cr.P.C. :
19.Statements of both the accused persons u/s 313 Cr.P.C. were recorded on 30.10.2023, wherein all the incriminating material on record was put to both the accused persons. It was submitted by both the accused persons that they are innocent and have been falsely implicated in the present case. Nothing was recovered at their instance or from their possession and the alleged recovery of mobile phones was planted upon them. It was further stated by both the accused persons that they had refused to participate in the TIP proceedings as their photograph was already taken by the IO in the PS at the time of their arrest. It was further stated by accused Kapil that knife was also planted upon him. It was further stated by both the accused persons that they were arrested from their house and the recovery was falsely planted upon them. Both the accused persons declined to lead evidence in their defence and therefore, defence evidence was closed and the matter was fixed for final arguments.
Final arguments :
20.I have heard the final arguments as advanced by ld. Addl. P.P. for the State as well as ld. counsel for both the accused persons and have gone through the entire material available on record.
SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 13/25Appreciation of law & evidence :
21.It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
22.The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
23.Accused Deepak @ Karan had been charged for commission of offences punishable under sections 394 IPC and 458 IPC, both read with section 34 IPC and in the alternative under section 411 IPC.
SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 14/25Accused Kapil @ Manva had been charged for the commission of offences punishable under sections 394 read with section 34 IPC read with section 397 IPC, 458 IPC read with section 34 IPC, section 27 Arms Act and Section 25 Arms Act.
24.Section 394 IPC reads as under :
Voluntarily causing hurt in committing robbery - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Section 458 IPC reads as under :
Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint - Whoever commits lurking house-trespass by night, or house-breaking by night, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. Section 34 IPC reads as under :
Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 15/25
Section 411 IPC reads as under :
Dishonestly receiving stolen property - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 25 Arms Act makes punishable possession of arms in contravention of the notification of the government under section 4 of the Act.
Section 27 of the Arms Act provides punishment for using arms in contravention of section 5 and section 7 of the Act.
25.In order to bring home the guilt of accused persons qua the offence of lurking house trespass or house breaking by night, the offence of commission of robbery and voluntarily causing hurt while committing robbery, it is imperative upon the prosecution to establish the identity of the assailants. Both PW-1/complainant Vikram Singh and PW- 3/victim Badal, though in their testimonies had deposed qua the commission of offence of lurking house trespass/house breaking by night, qua the commission of robbery of mobile phones from their person and qua the fact that PW-1 was injured by the assailants when the mobile phones were being robbed however, they both had deposed that they could not identify the assailants as there was darkness at the spot at the time of incident. They both failed to identify accused persons as the assailants/robbers before the Court. They further failed SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 16/25 to identify the knife Ex.P.3, allegedly used in the commission of offence.
26.Thus, though PW-1 and PW-3 had deposed that their mobile phones were robbed in night by the robbers after committing lurking house trespass/house breaking and the robbers were also armed with weapons and the robbers while committing robbery also had caused injuries to PW-1 however, they had not identified the accused persons as those robbers. They were further unable to identify the recovered knife Ex.P.3 as the knife which was used by the assailants while committing robbery. They alone could have deposed with respect to the identity of the robbers/assailants and in the absence of their testimonies qua the same, the prosecution cannot be said to have established that accused persons were the persons who had committing lurking house trespass/house breaking by night after making preparation of causing hurt and had thereafter, committed robbery and had voluntarily caused hurt while committing robbery. Therefore, both accused persons are thus acquitted from the offences punishable under section 394 IPC read with section 34 IPC, section 458 IPC read with section 34 IPC and further accused Kapil is also acquitted from the offence punishable under section 397 IPC and section 27 Arms Act.
27.However, both the accused persons have also been alternatively charged for the offence punishable under section 411 IPC and accused Kapil @ Manva is also charged for the offence under section 25 Arms SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 17/25 Act.
28.Hon'ble Supreme Court of India in the case titled as Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39 had laid down the ingredients of offence under section 411 IPC. It was held that in order to bring home the guilt under section 411 IPC, the prosecution must prove :
"(1) that the stolen property was in the possession of the accused, (2) that some person, other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that property was stolen property."
29.As per section 410 IPC, property whose possession has been transferred by way of robbery is designated as stolen property.
30.Section 114 of Indian Evidence Act states that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (a) to section 114 I.E.Act states that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can count for his possession. Section 106 of I.E. Act states that when any fact is especially within the knowledge SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 18/25 of any person, the burden of proving that fact is upon him.
31.It is deposed by PW-4 HC Nityadev and PW-7 ASI Sanjay Kumar that on 03.06.2022 at about 06:00 pm, at the instance of secret informer, both accused persons were apprehended and from the possession of accused Kapil @ Manva, mobile phone make Realme model RMX- 2189, Ex.P.2 and one button actuated knife, Ex.P.3 were recovered and from the possession of accused Deepak @ Karan, mobile phone make Samsung A-13, Ex. P.1 was recovered.
32.From the deposition of PW-1 Vikram Singh and PW-3 Badal, the prosecution has been able to establish that their mobile phones were robbed in the intervening night of 27.05.2022 by unknown persons. MLC Ex.A1 of PW-1 Vikram Singh also shows that he was examined on 28.05.2022 and was having clean lacerated wound (CLW) over left side buttock, 3 x 0.5 cm and abrasion over left side knee and the injuries were simple in nature. This medical evidence also corroborates the ocular evidence of PW-1 and PW-3 to the effect that injury was caused by robbers on the thigh of PW-1 Vikram Singh while committing robbery. Further more, the mobile phone of PW-1 was released to him on superdari. PW-2 Satvinder, during his deposition, had identified the copy of mobile phone bill, Mark PW-1/X, of mobile phone Ex.P1. Both PW-1 and PW-3 have identified both the mobile phones Ex.P.1 make Samsung and Ex.P.2 make Realme. No suggestion was given to PW-1 by the defence that mobile phone Ex.P.1 does not SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 19/25 belong to him. Furthermore, after it was deposed by PW-3 that he had given electronic copy of the mobile phone bill to IO, no suggestion was given to him by the defence that mobile phone Ex.P.2 does not belong to him.
33.PW-4 and PW-7 had also identified the mobile phones Ex.P.1 make Samsung, as that mobile phone which was recovered from the possession of accused Deepak @ Karan, and Ex.P.2 make Realme, as that mobile phone which was recovered from the possession of Kapil @ Manva, on 03.06.2022 at 06:00 pm at Kirari Phatak, Camp no.2, Nangloi, Delhi.
34.It is argued on behalf of the defence that it is admitted by both PW-4 and PW-7 that the place of recovery and arrest was a public place and public persons/crowd was present at the time when the alleged recoveries were made from the accused persons and they were arrested; however still, no public person was made a witness of arrest and recovery by the investigating agency and therefore, the same casts dent upon the alleged recoveries, making them doubtful.
35.PW-4 and PW-7 are the witnesses of recovery and arrest. They had deposed in consonance with each other qua the factum of recovery of mobile phones from the possession of accused persons and qua the recovery of knife from the possession of accused Kapil @ Manva. Though as per seizure memo of mobile phones Ex.PW-4/C and as per SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 20/25 seizure memo of knife Ex.PW-4/B, the witnesses to recovery are police officials only and not independent public witnesses however, the mere fact that no public witness was joined in recovery does not per se make the recoveries and arrest doubtful.
36.It is common experience that now-a-days, there is reluctance, apathy and indifference on the part of general public to join police proceedings or Court proceedings and the same needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. It was held in the case titled as Manish v. State, 2000 VIII AD (Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai v. State, AIR 1989 SC 696, that one cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Thus, non joining of public witnesses is not fatal to the case of the prosecution and prosecution case cannot be doubted or thrown out merely on this ground.
37.Hon'ble Supreme Court of India in the case titled as Kripal Singh v. State of Rajasthan, Crl.Appeal 2100 of 2008 had held that there is no such legal proposition that the evidence of police officials unless supported by independent witness is unworthy of acceptance or the SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 21/25 evidence of police official can be outrightly disregarded. It was also observed by the Hon'ble Supreme Court of India in the case titled as Aner Raja Khima v. The State of Saurashtra, AIR 1956 SC 217 that presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. Hon'ble Supreme Court of India in another case titled as Baldev Singh v. State of Haryana, 2015 (17) SCC 554 had held as under :
"there is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."
38.Thus, the prosecution from the testimonies of PW-4 and PW-7 is able to establish that accused Kapil @ Manva was found in possession of mobile phone make Realme (Ex.P.2) and button actuated knife (Ex.P.3) and that accused Deepak @ Karan was found in possession of mobile phone make Samsung (Ex.P.1). The said mobile phones were recovered from the possession of accused persons on 03.06.2022. It is established from the deposition of PW-1/complainant and PW-3/victim/Badal that SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 22/25 the said mobile phones, Ex.P.1 and Ex.P.2, were robbed from their possession on 28.05.2022. There is ample evidence on record to substantiate that mobile phones, Ex.P.1 and Ex.P.2, belonged to PW-1 and PW-3, respectively and were robbed from them. Soon after these mobile phones were robbed, on 03.06.2022, that is, within a time span of 5-6 days, the said robbed properties/stolen properties were recovered from the possession of the accused persons. The presumption of Section 114 of Indian Evidence Act applies to the case as the accused persons were found in possession of the robbed goods soon after robbery. They failed to account for the possession of the stolen goods. The burden of proving that how they came into possession of those robbed articles was upon the accused persons as per section 106 of the Indian Evidence Act which they failed to discharge. In view of the same, presumption under section 114 Indian Evidence Act applies and it is presumed that the accused persons had received the goods knowing them to be robbed/stolen properties.
39. Accused Kapil @ Manva apart from aforesaid mobile phone Ex.P.2, was also found in possession of button actuated knife Ex.P.3. As per sketch Ex.PW-4/A of knife, Ex.P.3, the length of blade was 10.5 cm and the maximum breadth of blade was 2.5 cm. As per DAD notification dated 29.10.1980, buttondar knives with sharp edged blade of 7.62 cm or more in length and 1.72 cm or more in breadth shall not be possessed by person in the Union Territory of Delhi unless he holds a licence to that effect. Accused Kapil @ Manva had failed to produce any licence, SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 23/25 to possess the said knife, before the Court. Section 4 of the Arms Act states that licence is required for the possession of Arm as notified in the official Gazette and section 25 of the Arms Act makes punishable the possession of Arm in contravention of Section 4 of the Act. In view of the same, it is held that accused Kapil @ Manva by having in his possession buttondar knife Ex. P.3 had violated the DAD notification dated 29.10.1980 under section 4 of the Arms Act and therefore, had committed the offence punishable under section 25 (1B) (b) Arms Act.
Conclusion/Findings :
40.In view of above discussions & findings, this Court is of the considered opinion that the prosecution has been able to prove beyond shadow of all reasonable doubts that accused Kapil @ Manva and Deepak @ Karan were found in possession of stolen properties/robbed mobile phones on 03.06.2022, which they have received knowing them to be stolen or robbed articles. Accused Kapil @ Manva was also found in possession of knife in contravention of the Arms Act.
41.Accordingly, accused Kapil @ Manva is held guilty and convicted for the offence punishable under section 411 IPC as well as section 25 Arms Act. Accused Deepak @ Karan is held guilty and convicted for the offence punishable under section 411 IPC. Both of them are acquitted from the charges under sections 394 IPC and 458 IPC. Accused Kapil @ Manva is also acquitted from the charges under section 397 IPC and section 27 Arms Act.
SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 24/2542.Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
43.They be heard on the point of Sentence.
44.Copy of the judgment be provided to both the convicts free of cost.
ANNOUNCED IN THE OPEN (NEHA PALIWAL SHARMA) COURT ON: 22.11.2023 ASJ-05 (West), THC, Delhi.
It is certified that this Judgment contains 25 pages and each page bears my signatures.
(NEHA PALIWAL SHARMA) ASJ-05 (West), THC, Delhi 22.11.2023 SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 25/25 SC No. 656/2022 State v.Kapil @ Manva Chor & Anr. Page No. 26/25