Delhi District Court
State vs . Vinay @ Sanjay on 28 September, 2018
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
New Case No. 295447/2016
FIR No.: 102/2016
PS: Desh Bandhu Gupta Road
U/s 379/75/34 IPC
State Vs. Vinay @ Sanjay
(a) S. No. of the case : 188/2
(b) Name of complainant : Sh. Mahesh Kumar
S/o Sh. Bhola Prasad
R/o H. No. 28/73, Second
Floor, West Patel Nagar,
Delhi.
(c) Date of commission of offence : 27.02.2016
(d) Name of the accused : Vinay @ Sanjay
S/o Sh. Bhagwan Dass
R/o H. No. 16/874, H-
Block, Pyare Lal Road,
Bapa Nagar, Karol Bagh,
Delhi.
(e) Offence complained of : U/s. 379/75/34 IPC
Charges framed : U/s. 379/75/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 26.09.2018
(h) Final Order : Convicted.
(i) Date of such order : 28.09.2018
FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 1 of 15
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Accused Vinay @ Sanjay had been charge-sheeted with the allegations that on 27.02.2016 at about 4.50 PM near Khalsa College Bus Stand, DBG Road, Karol Bagh, Delhi, he along with his associates (not identified or arrested) in furtherance of their common intention, had committed theft of mobile phone (make Samsung J-2), from the possession of the complainant Sh. Mahesh Kumar, while traveling in a bus. Further, the accused rendered himself liable for enhanced punishment under section 75 IPC being a previous convict in FIR No. 106/2012, under section 379/356 IPC, PS Prasad Nagar.
2. As per the case of the prosecution, on 27.02.2016 at about 4.50 PM, the complainant Mahesh Kumar was returning from Tank Road to Jhandewalan after getting over from his duty, when he boarded one orange coloured bus. While he was purchasing the bus ticket, one person (accused herein) who was standing near him in the bus, took out the mobile phone (make Samsung J-2) from the pocket of the jeans pant worn by the complainant and passed it on to his accomplices. The complainant immediately caught the accused and asked the driver not to stop the bus anywhere else except the police station. The bus was accordingly stopped in front of PS DBG Road. The accused was handed over to the police officials and the complainant narrated the incident. His statement was recorded, on the basis of which the present FIR was registered under section 379/34 IPC. Investigation was started and site plan was prepared. The IO FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 2 of 15 arrested the accused Vinay @ Sanjay and recorded his disclosure statement whereby the accused took names of his accomplices but stated that he did not know their addresses. Attempt was made to search the accomplices or to recover the case property but the police officials could not succeed. The phone number was also put on surveillance but there was no response. It was also found during investigation that the accused was a previous convict in similar offencem and therefore, on the basis of proceedings, chargesheet was filed against the accused for commission of offence punishable under section 379/75/34 IPC on 25.04.2016.
3. Cognizance of the offence was taken by the Court on 25.04.2016 itself and charge was framed against him for commission of offence punishable under section 379/75/34 IPC vide order dated 19.05.2016, to which he pleaded not guilty and claimed trial.
4. At the trial, prosecution examined eight witnesses in its support.
5. PW-1 Sh. Mahesh Kumar is the complainant and the sole eye witness of the present case. He narrated the incident and deposed about his boarding a bus on 27.02.2016 at about 4.50 PM and the accused promptly drawing his mobile phone from the left pocket of his pants. He immediately caught the accused but the accused suddenly passed the phone to someone else and it could not be traced. He proved the complaint Ex. PW-1/A, on the basis of which the FIR FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 3 of 15 was registered. Site plan was prepared at his instance. He gave the cash memo of mobile phone Mark A-1 to the police. Accused was arrested and personally searched vide memos Ex. PW-1/B and Ex. PW-1/C respectively. During cross-examination, he denied that the phone did not belong to him, or that some other person had stolen his phone, or that he had named the accused only on suspicion.
6. PW-3 Ct. Ajay Kumar and the investigating officer (IO) PW-6 SI Shiv Prakash deposed that on 27.02.2016, they were present at PS DBG Road when the complainant PW-1 Mahesh Kumar and handed over to them the custody of the accused. Statement of the complainant Ex. PW-1/A was recorded and rukka was prepared. PW-2 HC Brij Mohan was the duty officer who registered the FIR Ex. PW-2/A and made endorsement on the tehrir Ex. PW-2/B. Custody of the accused Vinay @ Sanjay was handed over to PW-3 and the IO PW-6 along with the complainant PW-1 went to the spot where he made efforts to search any independent witness but no one came forward. PW-6 prepared the site plan Ex. PW-6/A. In the meantime, PW-8 Ct. Sanjay Singh reached at the spot and handed over copy of FIR and original rukka to the IO. They tried to trace the mobile phone and other associates of accused but they could not be found. They returned back to PS after interrogation, the accused was arrested and personally searched vide memos Ex. PW-1/B and Ex. PW- respectively, and his disclosure statement Ex. PW-3/A was recorded. The IO made attempts to trace the other co-accused persons but no clue was found. The IMEI number of the mobile phone was put on surveillance but no FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 4 of 15 clue was found even from there. IO checked the previous involvement report of the accused and it was found that he had already been convicted in case FIR No. 106/2012, under section 379/356/411/34 IPC from PS Prasad Nagar. After completion of the investigation, chargesheet was filed before the Court. The witnesses in their cross- examination denied deposing falsely against the accused.
7. PW-4 Sh. Charanjeet Singh produced and proved the cash memo dated 01.01.2016 of invoice No. 964, Book No. 10, pertaining to sale of the Samsung mobile phone Ex. PW-4/A (copy of which is Mark A-1). During cross-examination, he accepted that bill did not bear his signatures or that of his son. He also accepted that name of customer was not mentioned on the bill.
8. PW-5 Ct. Yeshveer Singh had handed over the previous involvement report of accused Vinay, Ex. PW-5/A, on 04.04.2016 at the request of IO.
9. PW-7 Sh. Chander Mani Prasad proved the summoned record of case FIR No. 106/2012, PS PD Nagar, titled as State v. Vinay @ Sanjay etc., according to which accused Vinay was convicted and sentenced to imprisonment vide order dated 12.02.2015 by the Ld. MM. He proved the conviction order Ex. PW-7/A and sentencing order Ex. PW-7/B.
10. Statement of the accused under section 313 CrPC was recorded on 18.07.2018 wherein he denied the allegations and pleaded FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 5 of 15 innocence. He stated that he has been falsely implicated in the present case and that he never committed any theft. He took stand that the complainant had named him only on suspicion, that he was traveling in the bus and going to Karol Bagh to meet his friend, when some unknown person committed theft from the complainant but the bus was taken to PS and SI Shiv Prakash, who already knew him, implicated him in this case. He however accepted that he is a previous convict. He did not lead any evidence in defence.
11. It is in these circumstances that the Ld. APP has argued that the prosecution has been able to prove its case against the accused, primarily on the ground that the accused was apprehended at the spot itself by the complainant himself.
12. On the other hand, Ld. Legal Aid Counsel has argued that the present is a false case. He has argued that there are several missing links in the prosecution case and contradictions between the statements of the witnesses. It is also contended that the case is based only on the evidence of the complainant and the police officials who are interested witnesses and despite availability, no public witness was joined in the investigation despite their presence at the spot. It is reiterated that there is no recovery of any property from the possession of the accused or at his instance, and that the accused had been apprehended merely on suspicion and because of his previous involvements.
FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 6 of 15
13. I have considered the rival submissions made by the Ld. APP for the State as well as the Ld. Defence counsel for the accused, and have perused the record.
14. To begin with, I do not find myself in agreement to the contention of the Ld. Defence Counsel that the complainant and the police officials are not reliable being interested witnesses. The law is well settled in this regard. There is no rule of law that requires the court to view the testimony of the complainant and the police officials with any suspicion. The police officials and the complainant are competent witness and their testimony stands on the same footing as any other witness. Their evidence cannot be thrown away merely on the ground that they happen to be an aggrieved party or a part of investigative agency. It is the quality of the witnesses that decides the fate of the case and not their quantity. Conviction can be based even on the sole testimony of a witness if he is reliable, trustworthy and truthful.
15. As far as the complainant in the present case is concerned, the court should have no reason to disbelieve his version merely because he is the victim of an offence. Complainant can not be termed as an interested witness in the absence of any proved ulterior motive or previous enmity with the accused.
16. Similarly, the evidence of the police officials cannot be brushed side merely because they happen to be in the service of the police and FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 7 of 15 were a part of the investigating agency. Unless a reason to doubt their version is there, the court is bound to accept the same. No doubt, the joining of public persons would have helped the prosecution case, but mere absence of the same would not demolish the prosecution case altogether.
17. In Karamjit Singh v. State [AIR 2003 SC 1311], the Hon'ble Supreme Court has held that:
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds".
18. The Apex Court reiterated the above position in a later precedent titled as Girija Prasad v. State of MP [AIR 2007 SC 3106] and held as under:
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 8 of 15 reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
19. Thus, merely because the present case is based only on the testimonies of the complainant and the police officials, no infirmity can be attributed to the case so as to attach falsity to the entire version. The court has to see if the witnesses are reliable and trustworthy.
20. Coming to the merits of the case, it is seen that the accused is not disputing his presence at the spot, that is, the bus in question. The accused never took defence that he was not present in the said bus or that he was present at any place other than the bus. It is pertinent to note that in his statement recorded under section 313 CrPC, the accused admitted his travelling in the bus, though claiming that he was going to meet his friend at Karol Bagh. Thus, no defence of alibi has been taken by the accused. No friend, family member, neighbour or co-worker has been examined by the accused to establish his presence at any place other than the spot. When presence of the accused has been established by PW-1 and also admitted by him, the said presence has remained unexplained. The accused has not given any satisfactory explanation as to from where he was coming and to where he was going and what happened when he did not reach at his destination. It should be noted that no bus ticket or bus pass was recovered from the possession of the accused during his personal search. It is not his defence that he was travelling without ticket or that he had thrown way his bus ticket or was misplaced by him or the police officials took FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 9 of 15 it away. Thus, his unexplained presence in the bus goes against the accused.
21. At this stage, Ld. Defence Counsel has argued that the bus number was never noted down by any of the witnesses and the passengers of the bus were not made witnesses. In this regard, it can be observed that once the accused and the victim got down from the bus near the police station, the bus went on its route. The IO informed that the bus details never came to his knowledge and it could therefore not be identified. But that would not in any manner negate the version of the PW-1. Ordinarily, public persons are reluctant to join such legal proceedings which involve lengthy procedural formalities and strict future commitments. The passengers of the bus are apparently in a hurry to reach their destinations. No one is expected to wait for a long period to give statement in a case in which he has no substantial interest. Merely because no one noted down the registration number of the bus, that would not affect the prosecution case in any manner. The PW-1 informed the IO that the bus was Orange coloured bus, which fact had been reiterated by hum while deposing as PW-1. Such information is more than sufficient as no passenger ordinarily notes down the registration number of the bus in which he is travelling.
22. Moving ahead, it is seen that the prosecution case is primarily based on the evidence of PW-1 who had apprehended the accused as soon as he committed the theft. However, he deposed that the accused had passed on the mobile to his accomplice and his phone could not be FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 10 of 15 recovered. He identified the accused to be the offender and supported the prosecution case on all material counts. PW-3 and PW-6 were the police officials to whom the accused was handed over. PW-6 carried out investigation.
23. Ld. Defence Counsel has tried to shake the credibility of the prosecution witnesses by arguing that according PW-1, he remained at the PS for about two hours, but as per PW-6, he remained there for about one hour. It is further submitted that if the complainant had seen the accused handing over his mobile to some accomplice, there was no reason for him to apprehend the said accomplice as well who was also allegedly travelling in the same bus. It is pointed out that no description of any such accomplice had been given by the complainant, nor any such person was identified, nor any such person was made to deboard the bus at the PS, nor any such person could be located or any stolen phone recovered from anywhere during the investigation. It is then pointed out that even the cash memo / invoice on record has not been proved as per law, because it does not bear the name of customer or PW-1, nor it has come on record as to who had signed the same.
24. In this regard, it can be said that minor contradictions, omissions, exaggerations, variations do appear in the evidence of the witnesses with the passage of time. The court cannot expect the witnesses to remember all the minute details of the incident with mathematical accuracy and precision. But unless the said variations FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 11 of 15 and contradictions go to the root of the matter, the same could not be allowed to demolish the entire prosecution case.
25. The variations and contradictions pointed out by the Ld. Defence Counsel are all very minor in nature that do not go to the root of the matter. Irrespective of these minor variations, the fact remains that the PW-1 had seen the accused taking out mobile phone from his pocket, handing over the mobile by accused to his accomplice, his apprehending the accused and handiung over to PW-3 and PW-6. Merely because there is some difference of time spent at the PS, which nobody takes a strict note of, such variations would not demolish the prosecution case, particularly when the accused has admitted his presence in the bus.
26. Then, the factum of non-identification or co-accused and non- recovery of property would also not be sufficient to give a clean chit to the accused in view of clear testimony of the PW-1. He denied that he had apprehended the accused only on suspicion. There is nothing to show that the PW-1 was able to see the face of the accomplice to whom the accused had handed over the phone after theft. Again, there was sufficient time gap between the offence and the bus reaching the PS, during which there was enough time for the accomplice to even throw away the stolen mobile or even to hand over it to some other accomplice. Thus, when no person could be identified or located, that would not negate the apprehension of the accused by the PW-1, who had nothing against the accused otherwise and was not even known to FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 12 of 15 him. Recovery of stolen property would not be absolutely essential when the victim himself was ablet to catch the offender red handed at the spot itself and also saw him passing over the phone to his accomplice. It does not appeal to senses that a person travelling in a bus would falsely implicate an innocent person in a false criminal case, who is not even known to him. Irrespective of the antecedents of the accused, it should be noted that the PW-1 was aware of the same or the previous involvements of the accused, and would not have apprehended him on that count. Further, even if the PW-1 was not having and invoice or cash memo, that would not have made any difference. But here, the cash memo / invoice has been duly proved on record through the vendor PW- 4. The invoice shows that the mobile phone, the details of which had been given by the PW-1 to police, had been sold from that shop, even if the invoice was signed by anyone, and such mobile was in possession of the PW-1. Not only mobile, even the bill was in possession of the PW-1, copy of which had been given to the IO and shown to the court. This would certainly not be anything to go against the PW-1 so as to help the accused.
27. As far as offence of theft is concerned, the version of PW-1 who had seen the accused committing theft, leaves nothing to doubt. PW- 1 had seen the accused committing theft and he was apprehended by him at the spot itself. The accused has no satisfactory explanation as to why an unknown person would implicate him in a false case just on suspicion, and also thereby binding himself for strict and lengthy legal process. There is no merit in the defence taken by the accused that he FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 13 of 15 had been implicated only on the basis of suspicion or on account of his previous involvements. There is nothing on record to show that theft was committed by any person other than the accused, as claimed by him. It is quite improbable that the complainant would join the police officials and hand over an innocent person travelling in a bus in such a criminal case, just for no reason or motive. No previous enemy or ulterior motive has been alleged to exist between the complainant, police officials and the accused. The accused has not explained why these persons would falsely depose against him. In the absence of the previous enemy or ulterior motive or reason, there is nothing for the court to disbelieve their versions, particularly when there is nothing in their cross-examination which could help the accused.
28. The prosecution case is clear on all other counts. All investigative steps have been proved by the PW-3, PW-6 and PW-8. The documents bear signatures of the accused. It is not the case of the accused that he was made to sign blank papers or was forced, threatened, pressurised or tortured to put the same.
29. It is thus clear that the offence of theft punishable under section 379/34 IPC is made out against the accused. The accused has been established to be the one who had taken out the mobile from the possession of the complainant in the bus and passed on to his accomplice, the identity of whom could not be established, with whom he shared common intention. He was apprehended immediately and handed over to the police. The defence taken by the accused in his FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 14 of 15 statement under section 313 CrPC has not been substantiated by leading any evidence in defence. As such, his defence has remained bald averment.
30. Further, the accused has never denied his previous conviction, record of which has also been proved on record. He has not taken stand that such an order was set aside by any superior court. Record rather shows that the accused has very high number of involvements in criminal cases. Thus, he is a previous convict as well.
31. In view of this position, it can be said that the prosecution has been able to prove its case against the accused beyond the shadow of reasonable doubt. Accordingly, accused Vinay @ Sanjey is held guilty and is convicted for the offence under section 379/34 IPC read with section 75 IPC.
32. Matter be now listed for arguments on sentence.
Digitally signedASHU by ASHU GARG Date: 2018.09.28 Announced in the open Court GARG 02:47:09 +0530 this 28th Day of September 2018 (Ashu Garg) Chief Metropolitan Magistrate (Central) Tis Hazari Courts, Delhi FIR No. 102/2016 P.S. Desh Bandhu Gupta Road Page No. 15 of 15