Delhi District Court
Fir No. 109/12, Ps : Gulabi Bagh State vs . Rohit @ Golu & Anr. on 2 May, 2019
FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Rohit @ Golu & Anr
FIR No. 109/2012
PS : Gulabi Bagh
U/s 380/457/411/34 IPC
Date of Institution : 22.01.2013
Date of reserving of order : 23.04.2019
Date of Judgment : 02.05.2019
CNR No. DLCT020003212013
JUDGMENT
1. Serial No. of the case : 287778/2016
2. Name of the Complainant : Prem Chand
3. Date of incident : 26.10.2012
4. Name of accused persons :
1. Rohit @ Golu S/o Late Mahesh
R/o H. No.10682, Gali No.8, Andha
Mughal, Pratap Nagar, Delhi
2. Suraj S/o Late Mahabir
R/o H. No. 10627, Gali No.6, Andha
Mughal, Pratap Nagar, Delhi
5. Offence for which chargesheet
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FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
was filed : S. 380/457/411/34
IPC
6. Offence for which charge
has been framed : S. 380/457/411/34
IPC
6. Plea of accused : Not guilty
7. Final Order :
Rohit @ Golu Convicted for offence punishable under Section 380/34 IPC and 457/34 IPC.
Suraj Acquitted.
8. Date of Judgment : 02.05.2019
BRIEF REASONS FOR ORDER:
1. Mr. Rohit @ Golu and Mr. Suraj, the accused herein, have been chargesheeted for committing offences punishable under Section 457/380/411/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that during the intervening night of 2526/10/2012, complainant Prem Singh was sleeping at his house bearing No. 18/14, Azad Nagar, Ishan Ganj, Delhi after locking the doors. At about 3 :30 a.m., he heard some noises. He saw that two boys Page 2 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
were coming out from his room. They started running away after seeing the complainant. The complainant was able to apprehend one of them. The said boy was having the possession of mobile phone of the complainant. The second boy was able to run away with a small iron box belonging to the complainant. In the meantime, some police officials also reached at the spot during patrolling. Accused Rohit @ Golu was handed over the custody of those police officials. On the basis of the statement of the complaint, the present FIR was registered. The accused had disclosed that the boy who had run away from the spot was accused Suraj. During investigation accused Suraj was apprehended. The iron box was recovered at his instance. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused were chargesheeted for the offences punishable under Section 457/380/411/34, Indian Penal Code.
3. After perusing the record, cognizance was taken by the Ld. Predecessor. The accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable Page 3 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
under Section 457/380/411/34 IPC was framed against both the accused persons. It was read over to them to which they pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 06 witnesses to prove its case against the accused.
5. PW1 Sh. Prem Chand is the complainant. He has deposed that on 26.10.2012, he was alone at his home in night. At about 3:30 a.m., he heard some noises like "khatpat". He woke up and saw that two persons were running out from his room with his belongings. He apprehended one of them. The person apprehended by him was in possession of mobile phone and an iron rod and a bunch of keys. However, the second boy had managed to elope from the spot with his small iron box containing his old bill book, cheque book and some other documents. Accused Rohit @ Golu was apprehended at the spot. Two police officials had come to his home and he handed over the custody of the accused alongwith the recovered case property to them. Thereafter, they went to police station where his statement was recorded which is Ex. PW1/A. He had also handed over the iron rod, two locks and mobile phone to the police which were seized vide memo Ex. PW1/B and Ex. PW1/C. He identified the Page 4 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
iron rod in the Court which was recovered from accused Golu. The witness identified recovered case property in the Court. The case property is Ex. P1. The witness also identified accused Rohit @ Golu in the Court. However, he failed to identify accused Suraj.
6. PW2 Constable Rajesh Kumar is the police official who had participated in the investigation. He has deposed that on 25/26 October, 2012, he was on patrolling duty alongwith HC Kamarjeet vide DD No. 34 PP. During the patrolling duty they reached at H. No.18/14, Azad Nagar, Kishan Ganj at about 3:40 a.m., where Prem Chand met them and handed over accused Rohit @ Golu alongwith recovered black colour Nokia mobile phone make 5030 and informed that accused alongwith his associate had entered into his house, after breaking the lock of the door and had stolen two iron boxes and one mobile phone. The associate of the accused had run away alongwith the box. One iron rod and broken lock were also found on the spot. IO/HC Kamarjeet recorded the statement of complainant and prepared the rukka and handed over the same for registration of FIR. He went to PS Gulabi Bagh and after registration of FIR, he came back at the spot and handed over the copy of FIR Page 5 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
and original rukka to the IO. IO prepared the pullanda of the iron rod and broken lock and sealed with the seal of KJS. The said pullanda was taken into possession vide memo Ex. PW1/B. The mobile was also taken into possession through separate seizure memo Ex.PW1/C. Seal after use was handed over to him. Accused Rohit @ Golu was arrested and his personal search was conducted vide memo Ex. PW2/A and Ex. PW2/B respectively. Thereafter, IO recorded the supplementary statement of complainant and he was discharged. Thereafter, they alongwith accused Rohit @ Golu went in search of coaccused Suraj but Suraj was not found.
7. PW 3 Ct. Pramod Kumar is the police official who had recorded DD No. 34PP Andha Mugal. He has deposed that on 25.10.2012, he had made departure entry of HC Kunwarjeet Singh and Ct. Rajesh vide DD No. 34 PP (OSR) which is Ex. PW3/A.
8. PW4 WCT Prabha is the police official. She has deposed that on 12.11.2012, she was posted at PS Gulabi Bagh, Chowki Andha Mughal. On the said date, she was working as DD writer. She made departure entry of HC Kunwarjeet Singh and Ct. Sahid Khan vide DD No. 19 PP. Copy of the same is Ex. PW4/A (OSR).
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9. PW5 Inderjeet Singh is the Duty Officer who had recorded the FIR. He has deposed that on 26.10.2012, he was posted as Head Constable at PS Gulabi Bagh. On the said date, he had received a rukka from Ct. Rajesh at about 5 a.m., On the basis of the rukka, he registered the FIR and handed over the Tehrir and copy of FIR which is Ex. PW5/A (OSR) and handed over the same to Ct. Rajesh. He has also made endorsement on the rukka from A1 to A2, which is Ex. PW5/B. He has also produced the certificate under Section 65 B of Indian Evidence Act, which is Ex. PW5/C.
10. PW6 ASI Kunwarjeet Singh is the IO of the case. He has deposed that on 26.10.2012, he was posted at PP Andha Mugal PS Gulabi Bagh as a HC. On that day, he alongwith Ct. Rajesh were on patrolling duty vide DD No. 34PP. While patrolling, at about 03:40 a.m., they reached in front of 18/14, Azad Nagar Kishan Ganj, Delhi. On reaching there, complainant Prem Chand handed over him accused Rohit @ Golu alongwith mobile phone recovered from him. He recorded the statement of the complainant which is Ex. PW1/A. He prepared the rukka Ex. PW6/A and same was handed over to Ct. Rajesh for registration of FIR from PS. Accordingly, Ct. Rajesh went Page 7 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
to PS and got the FIR Register and returned at the spot alongwith copy of FIR and original rukka and same was handed over to him. He prepared site plan which is Ex PW 6/B. He seized the aforesaid mobile phone vide seizure memo Ex. PW1/C. He seized the iron rod, kunda and lock vide seizure memo Ex. PW1/B. He arrested and personally searched accused Rohit vide memos Ex. PW 2/A & Ex. PW2/B. He recorded disclosure statement of the accused vide memo Ex. PW6/C. On 12.11.2012, he arrested and personally searched coaccused Suraj vide memo Ex. PW6/D & Ex. PW6/E. He recorded the disclosure statement of accused Suraj vide memo Ex. PW 6/F. He seized the iron box vide seizure memo Ex. PW 6/G. Accused Suraj pointed out place of offence vide memo Ex. PW6/H.
11. The witnesses were cross examined. The prosecution evidence was closed. The accused were examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. They would state that they were falsely implicated in the present case. Accused Rohit @ Golu would state that he was not apprehended at the spot. He himself had gone to the PS from his home. He was falsely implicated thereafter as Page 8 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
there were some other cases pending against him. Accused Suraj would state that nothing was recovered from his possession. He was BC of the area. Therefore, he was falsely implicated.
12. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
13. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that accused Rohit @ Golu was apprehended at the spot alongwith the stolen property. Accused Suraj was also apprehended soon after the incident alognwith the part of the case property. There is no reason to doubt the testimonies of the complainant and other witnesses. The prosecution has proved all the ingredients of the offences punishable under Section 380/457/411/34 IPC and the guilt of the accused persons has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
14. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the Page 9 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
witnesses of the prosecution. It has been argued that there is a contradiction whether the statement of the complainant was recorded at his home or at the police post. Further, as per the complainant himself case property was not recovered from the possession of the accused. The complainant had handed over the same to the IO. There is no public witness of the recovery from any of the accused. It has been argued that in the seizure memo Ex. PW1/B, it is mentioned that the iron rod, two locks and other items was seized at the pointing out of the accused. However, the complainant has stated that those items were handed over by him to the IO. Further, in the Court the lock which were produced were in broken condition while as per the seizure memo only one lock was in broken condition. Further, the IMEI number of the mobile phone was later on mentioned in the seizure memo Ex. PW2/C, which is an alteration in the document which creates reasonable doubts on the case of the prosecution. Further, in the seizure memo it is mentioned that the colour of the phone was red and black while on the box of the mobile phone, it is mentioned that the phone was of red colour. It has also been argued that in the CDR filed by the prosecution the IMEI Number of the mobile is different from the IMEI Page 10 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
number shown to be recovered from the accused. The complainant had not identified accused Suraj in the Court. There is no evidence against accused Suraj that he had committed the offences. The alleged recovery have been planted upon the accused persons to send them behind the bars. The prosecution has failed to prove any of the offence against any of the accued as per law. Hence, it is prayed, the benefit of doubts may be given to the accused and they may be acquitted.
15. I have heard the rival submissions and carefully perused the material available on record.
16. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
17. In the present case, the accused persons have been charged for committing offences punishable U/s 457/380/34 & 411 IPC.
18. Section 380, IPC, provides punishment for committing offence of theft in any building, tent or vessel, which building, tent or vessel is used as human dwelling, or used for custody of property. Section 454, IPC provides punishment for lurking house trespass or house breaking Page 11 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
in order to commit offence punishable with imprisonment. Section 441 IPC defines criminal trespass, Section 442, IPC, provides the definition of house trespass and Section 443, IPC, provides definition of lurking house trespass. Section 445 IPC defines house breaking and Section 446 IPC defines house breaking by night. The Sections read as under : "441 Crime Trespass Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person or in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is aid to commit "criminal trespass". "442. House Trespass Whoever commits criminal trespass by entering into or remaining in any building, ten or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "housetrespass"
"443. Lurking House TrespassWhoever commits housetrespass by entering having taken precautions to conceal such housetrespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is right to exclude or eject the trespasser from the building, tent or vessel, which is the Page 12 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
subject of the trespass, is said to commit "lurking housetrespass"
"445 House breaking - A person is said to commit "housebreaking" who commits house trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house of any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say - Firstif he enters or quits through a passage by himself, or by any abettor of the housetrespass, in order to committing of the housetrespass. "xxx "Fourthly if he enters or quits by opening any lock in order to the committing of the house trespass, or in order to quitting of the house after a housetrespass.
"xxx"
"Section 446 House Breaking by nightwhoever commits house breaking after sunset and before sun rise, is said to commit house breaking by night."
19. Section 411, IPC, provides the punishment for dishonestly receiving or retaining any stolen property, knowing or having reason to believe the same to be stolen property. Section 34, IPC, provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for Page 13 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
that act in the same manner as if it were done by him alone.
20. In the present case, the prosecution has alleged that the accused persons, in furtherance of their common intention, had entered in the house of the complainant by house breaking and thereby committed lurking house trespass or house breaking in order to commit offence of theft. Further they had committed theft. Accused Rohit @ Golu was apprehend at the spot alongwith stolen mobile phone. Accused Suraj was apprehended later on on the basis of disclosure statement of accused Rohit @ Golu. A stolen box was recovered from the possession of accused Suraj.
21. The prosecution has examined the complainant Prem Chand as PW1 to prove the ingredients of the offences. The complainant in his testimony has categorically stated that after putting locks on the door, he had gone to sleep. At about 03:30 a.m., he heard some noises. He had seen two persons running out of his room. He had apprehended one of them i.e., accused Rohit. The witness has also stated that accused Rohit was having Page 14 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
possession of his mobile phone. He had also found one iron rod and two locks on the spot.
22. The witness was cross examined at length. However, no material contradiction is noted in his cross examination so as to doubt his testimony. The testimony of the complainant is able to prove beyond reasonable doubts that accused Rohit @ Golu alongwith his associates, had an intention to commit a theft inside the house of the complainant. It has also been proved beyond reasonable doubts that in furtherance of such common intention, accused Rohit @ Golu alongwith his associate had entered into the home of the complainant which was used by him for his residence purpose. It has also been proved that they had committed the house breaking by night by effecting their entrance into the house by opening a lock in order to the committing of the house trespass and after having taken precautions to conceal such house trespass from the complainant. Thus all the ingredients of the offence punishable under Section 457/34 IPC are proved beyond reasonable doubts against accused Rohit @ Golu. Further it has also been proved that accused Rohit @ Golu and his associate, in furtherance of their common intention had Page 15 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
committed theft of the properties belonging to the complainant. The mobile phone of the complainant was also recovered from the possession of accused Rohit @ Golu.
23. Ld counsel for the accused would argue that a doubt has been raised regarding recording the statement of the complainant. The complainant in his examination has stated that his statement was recorded by the IO at police post. However, the IO PW6 ASI Kunwarjeet Singh and police official PW2 Ct. Rajesh Kumar have stated that statement of the complainant was recorded at the spot. It has been argued that this material contradiction is able to create reasonable doubts on the case of the prosecution.
24. I have considered the submission. However, I am of the opinion that this contradiction is not such a material contradiction so as to make the testimony of PW 1 unbelievable. It does not create any doubts on the case of the prosecution. It is normal behavior of a person that he forgets certain things after expiry of time. The incident was of the year 2012 while the complainant was examined in the Court in the year 2013.
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25. It has been further argued by Ld. Defence counsel that there is no public witness examined by the prosecution alongwith the complainant which create reasonable doubt on his testimony. Ld. Defence counsel would further argued that the case property was not recovered from the possession of the accused. The complainant had handed over the same to the IO.
26. I have considered the submission. However, I do not find any merits in the same. The complainant himself is a competent and trustworthy witness. No reason is shown by the defence as to why the complainant would falsely implicate the accused. No previous enmity is shown between the complainant and accused Rohit @ Golu. Section 134, Indian Evidence Act, provides that no particular number of witnesses shall in any case be required for the proof of any fact. The Hon'ble High Court of Delhi in Raja Vs. State (1997) 2 Crimes 175 (Delhi) has observed that reliance can be based on a solitary statement of the witness if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. It has been held that the Courts are concerned with the merits of the statement Page 17 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
of a particulars witness and not with the number of witnesses examined by the prosecution. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
27. In the present case, the testimony of the complainant is wholly reliable. There is no reason on record to doubt his testimony.
28. It is further argued that in the seizure memo Ex.PW1/B, it is mentioned that the iron rod, two locks and other items were seized at the pointing out of the accused. However, the complainant has stated in his statement that those items were handed over by him to the IO. All these circumstances, also creates doubts on the case of the prosecution.
29. I have considered the submission. However, I do not find any merits in the same. This is not a contradiction. Perusal of seizure memo Ex.PW1/B would show that it is mentioned therein that the items had been seized on identification (nisandehi) of the accused in the presence of the complainant. The seizure memo does not say that the items were recovered at the instance or Page 18 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
pointing out of the accused. It is nowhere mentioned in the seizure memo that the accused had led the IO to the place where those items were lying. Therefore, I do not find any contradictions as argued by Ld. Defence counsel.
30. It is further argued by Ld. Defence counsel that the IMEI number of the mobile phone was later on added in the seizure memo Ex. PW2/C which is an alteration in the documents. Further, in the seizure memo it is mentioned that the colour of the phone was red and black while on the box of the mobile phone, it is mentioned that the phone was of red colour. It has also been argued that in the CDR filed by the prosecution the IMEI Number of the mobile is different from the IMEI number shown to be recovered from the accused.
31. I have considered the submissions. Perusal of seizure memo Ex. PW2/C would show that there is no alteration in the said documents. The IMEI number is mentioned after mentioning all the details. There is nothing on record to doubt the authenticity of the documents. Further, no doubt in the seizure memo the colour of the mobile phone is mentioned as black and red, and in the photocopy of the box of the mobile phone the Page 19 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
colour is mentioned as Red. However, it also does not create any doubts on the case of the prosecution. The complainant had produced his mobile phone in the Court and deposed that it was the same mobile phone which was stolen. No question regarding the colour of the mobile phone was put to the witness at the time of his cross examination. Even from the IO no question was put during his crossexamination regarding mentioning of two colors. Ld. APP has rightly stated that the main color of the mobile phone might be red and the border might be black. In any case, the testimony of the complainant can not be ignored in these circumstances.
32. Further, there is no difference in the IMEI number mentioned in the seizure memo and in the CDR of the said mobile phone. The International Mobile Equipment Identity (IMEI) is a number which is unique to identify the mobile phone. A standard IMEI number is 14 digit string with an additional fifteenth check digit for verifying the entire screen. The check digit is not part of the documented IMEI. First fourteen digits of an IMEI number are always used to match the IMEI number. In the present case, the first fourteen digits of IMEI number Page 20 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
mentioned on the seizure memo, the box and the CDR are the same and there is no difference in the same.
33. Ld. Defence counsel would further argue that in the seizure memo Ex.PW1/B, it is mentioned that there was a closed lock and a broken lock. However, the locks which were brought in the Court were broken locks. It also creates doubts on the case of the prosecution.
34. I have considered the submissions. However, again I do not find the contradiction material enough to create the doubts on the testimony of the complainant.
35. In any case, any small discrepancies in the investigation can not be a ground to disbelieve the case of the prosecution against accused Rohit @ Golu. I get strength from the Judgment of Hon'ble High Court of Delhi in Angrej Singh & Ors. vs State, Criminal Appeal No. 46/2005, decided on 21 October, 2013. Hon'ble High Court has held as under : " In the case of Allarakha K. Mansuri Vs. State of Gujarat reported at (2002) 3 SCC 57 it has been held as under:
"8. In the instant case the trial court relied upon certain aspects of the case as noticed earlier for passing an order of acquittal. Examined Page 21 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
critically, none of the aforesaid circumstances or aspects can be held to be based upon legal evidence. Whether Exhibit 36 or Entry No.20/89 is the First Information Report would not change the nature of the allegation made against the accused as no discrepancy is pointed out in the aforesaid entries. Entry No.20 is recorded on the basis of report received from the Hospital and Exhibit 36 is on the basis of statement of the complainant Ali Mohmed. In the absence of any discrepancy in the aforesaid two documents, the accusedappellant could not be acquitted. The two entries did not make the socalled two versions possible. The only inference of the two entries is that occurrence had taken place in which Abdul Karim Ali Mohmed had died and the appellant had inflicted injuries. Similarly the time of death in no way proves the appellant to be innocent. In presence of the ocular testimony of eye witnesses that occurrence had taken place on 27th March, 1989 at about 7.30 p.m. in which the injuries found on the person of the deceased were caused by the appellant, the time of death of the deceased ascertained on the basis of opinion of the Doctor was in no way helpful to the appellant. We also find that the trial court had no reason to hold that the identity of the weapon of offence was doubtful or Mamudu @ Abdulla (PW9) was not the prosecution witness whose statement had been recorded under Section 161 of the Code of Criminal Procedure. The defects in the investigation Page 22 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also defective investigation by itself cannot be made a ground for acquitting the accused................ " In the case Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278, it has been held as under:
"17. We are also unable to accept the submission of Mr.Mehrotra that the investigation by the police is shoddy and hasty and there are defects in the investigation and therefore benefit of doubt should be given to the appellant and he should be acquitted of the charge of rape. The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt. In the present case, as we have seen, the evidence of PW5 as corroborated by the evidence of PW2 and the FIR establish beyond reasonable doubt that the appellant has committed rape on PW5 and thus the appellant is not entitled to acquittal."Page 23 of 31 MM08/C/THC/Delhi/02.05.2019
FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
36. In the present case also, mere because there are some defects in the investigation are not sufficient to create reasonable doubts on the case of the prosecution.
37. During his examination under Section 313 Cr.P.C., accused Rohit @ Golu would state that he was falsely implicated after calling from his home as he had some other cases pending against him. However, no evidence has been led by him in his defence. It is settled position of law that statements made during examination under Section 313 Cr. PC are not evidence. They have not been made on oath. They have not been tested on the touchstone of crossexamination. Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it Page 24 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
38. In the present case also, there is no reason brought by the accused on the record as to why the complainant would falsely implicate him. The testimony of the complainant has proved the presence of the accused Rohit @ Golu at the spot at the relevant date and time. The law is settled that testimony of an eyewitness and an injured should be believed unless there is specific reason on record to disbelieve him. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are Page 25 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
39. In the present case also, as discussed herein above, I do not find any reason to disbelieve the testimony of the complainant. The material on record is sufficient to prove beyond reasonable doubts that accused Rohit @ Golu alongwith his associate had entered in the house of the complainant during the night by house breaking in order to commit offence of theft. It has also been proved beyond reasonable doubts that he had committed theft of the mobile phone belonging to the complainant from his house.
40. Now, I come to decide the case against accused Suraj. Admittedly, accused Suraj was not apprehended on the spot. He was allegedly apprehended on the basis of disclosure statement of the accused Rohit @ Golu. A disclosure statement of coaccused is not admissible in the evidence against another accused. Therefore, the disclosure statement of the accused Rohit @ Golu can not be used as an evidence against accused Suraj. The complainant has not identified accused Suraj in the Court as associate of accused Rohit @ Golu. In these Page 26 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
circumstances, I hold that the prosecution has failed to prove beyond reasonable doubts the ingredients of offence punishable under Section 380/457/34 IPC against accused Suraj.
41. The prosecution has also alleged that the stolen box belonging to the complainant was recovered from the possession of accused Suraj. Therefore, the Court has to decide whether the prosecution has proved the ingredients of offence punishable under Section 411 IPC against accused Suraj beyond reasonable doubts.
42. PW6 ASI Kunwarjeet Singh has deposed that after arresting accused Rohit, he had recorded his disclosure statement which is Ex. PW6/C. As per the said statement, accused Rohit has stated that he had committed the offence alongwith the accused Suraj and that he could take the police official to the house of accused Suraj. Even thereafter no PC remand of accused Rohit was obtained by the IO to trace the coaccused. After a gap of fourteen days he had apprehended accused Suraj and alleged recovery was made. However, as the record would reveal, no independent public witness had joined the raiding party at the time of alleged recovery. PW6 in his cross Page 27 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
examination has stated that he had asked neighbors, however, none agreed to join the proceedings. In his crossexamination the witness has also stated that he had not given any notice to those public persons. Thus, the place of recovery and apprehension of the accused is clearly shown to be located in an area where public persons were readily available. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. No steps are shown to be taken to note down the names and addresses of those persons. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under: Page 28 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
43. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution. Further, the present case against accused Suraj rests on the alleged recovery of case property from his possession. However, there is nothing in the testimony of the IO as to how he had apprehended accused Suraj. It is not on record whether he had received any secret information regarding presence of the accused at the spot where he was apprehended. Hence, the fact of the apprehension of accused Suraj alongwith the stolen property has come under the clouds of reasonable doubts.
44. In the light of the discussion hereinabove, I am of the opinion that the prosecution has failed to prove beyond reasonable doubts the recovery of stolen property from the possession of the accused. In view of the aforesaid, the possibility of false implication of the accused Page 29 of 31 MM08/C/THC/Delhi/02.05.2019 FIR No. 109/12, PS : Gulabi Bagh State Vs. Rohit @ Golu & Anr.
in the present case cannot be ruled out. The benefit of doubt ought to be given to the accused Suraj.
45. In the light of the discussions hereinabove, I hold that the material on record is not sufficient to convict accused Suraj for any offence he is charged with. He is given benefit of reasonable doubts and he is accordingly acquitted.
46. However, the material on record is sufficient to prove the ingredients of offence punishable under Section 457/34 IPC and Section 380/34 IPC against accused Rohit @ Golu. Be that as it may, a thief remains a thief and he can not be considered a person who had received or retained the stolen items as defined under Section 411 IPC. Once it is proved that the accused had committed the theft of the mobile phone of the complainant, it is also proved that he was in possession of the mobile phone as a thief and not as a person as defined under Section 411 IPC. Therefore, accused Rohit @ Golu can not be convicted for the offence punishable under Section 411 IPC. He is accordingly found guilty and convicted for offence punishable under Section 457/34 IPC and Section 380/34 IPC.
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47. Accused Suraj has already furnished bonds under Section 437 A Cr. PC with one surety alongwith photographs and ID Proof. The bonds come in force as per law.
48. Let Convict Rohit @ Golu and the State be heard on sentence.
49. Copy of the Judgment be given free of cost to Convict Rohit @ Golu.
Digitally signed by DINESH DINESH KUMAR
KUMAR Date:
2019.05.02
16:34:40 +0530
Pronounced in the open Court on (Dinesh Kumar)
nd
this 02 day of May 2019. MM08 (Central) Tis Hazari Courts, Delhi.
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