Delhi District Court
In Re: State vs Gayatri Batra on 7 January, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS GAYATRI BATRA
F.I.R. No: 644/02
U/s 379/411 IPC
P.S. Defence Colony
Date of Institution of Case : 11.07.2003
Judgment Reserved for : 07.01.2012
Date of Judgment : 07.012012
JUDGMENT:
(a) The serial no. of the case : 376/2/03
(b) The date of commission of offence : 21.12.2002
(c) The name of complainant : Smt. Sarita Kapoor W/o Sh.
Deepak Kapoor, r/o K42, NDSE
II, New Delhi.
(d) The name, parentage, of accused : Gayatri Batra D/o Ms. Bindu
Batra, r/o A2/71 Enclave, New
Delhi.
Present Address : As above
(e) The offence complained of : U/s 379/411 IPC
FIR No. 644/02 1/19
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted u/s 411 IPC
(h) The date of such order : 07.01.2012
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 21.12.2002 at about 1.00 pm at K41, NDSEII, New Delhi within the jurisdiction of police station Defence Colony, accused Gayatri Batra dishonestly took the movable property as mentioned in seizure memo Mark X & Y out of the possession of complainant/owner of the aforementioned house without her consent and which she retained knowingly or having reason to believe that the same were stolen property and thus thereby the accused committed offence punishable u/s 379/411 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. documents were supplied to the accused. Thereafter vide orders dated 17.04.2004, charge u/s 379 and in the alternative u/s 411 IPC was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined FIR No. 644/02 2/19 six witnesses.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW 1 ASI S. Linda deposed that on 21.12.2002 he was posted as DO and he recorded the case FIR No. 644/02 i.e. Ex.PW1/A.
5. During his cross examination he stated that he received the rukka at 7.20 pm. He denied the suggestion that the rukka was (in fact not) received at about 7.20 pm or that the FIR was ante timed.
6. PW 2 Sarita Kapoor deposed that on 21.12.2002 she was present at her house and at about 11.30 pm she saw the accused outside the House No. K41 belonging to her neighbor Dr. Lobo who was out of station on that day. She deposed that she stopped the accused while the accused was trying to run away in her car. She further deposed that the accused was apprehended along with the two bags by some resident from neighborhood who had collected there. She deposed that police came there and the accused was handed over to the police. She deposed that she along with other person and police official went to H. No. K41 and found that locks of the house were tempered and some acid was found on the locks. She deposed that she made a complaint to the police i.e. Ex.PW2/A. FIR No. 644/02 3/19
7. During her cross examination she stated that when she came out of her premises, she noticed the accused outside H. No. K41. She stated that she was detained outside H. No. K41 by her and other neighbors namely Mehdirata Bajaj etc. She stated that PCR Van reached at the spot within 3035 minutes and local police came to the spot at about 1.00 pm and the accused was handed over to the local police. She stated that police prepared certain documents at the spot and obtained her signatures on those documents. She stated that she had seen the court file but there was no such document except Ex.PW2/A. She voluntarily stated that she was not sure whether she had signed any other documents except Ex.PW2/A. She stated that after handing over the accused to the police, the police left with the accused after 40/45 minutes and she went to her house. She stated that the complaint Ex.PW2/A was given to the police in the evening. She admitted that the complaint was given after the arrival of Mrs. Lobo, who had come late in the night. She denied the suggestion that the police had not prepared any document at the spot. She stated that she did not sign any document written by herself or prepared by IO till Mrs. Lobo came.
She stated that she was aware that Mrs. Megan Lobo was a private tutor but she was not aware whether accused was coming for tuition to Mrs. Lobo or not. She stated that the police had not taken the finger print from the locks and the doors. She stated that police had not prepared the seizure memo of lock or FIR No. 644/02 4/19 acid bottle nor had obtained her signatures. She admitted that breaking of door and lock will involve lot of force and noise also. She voluntarily stated that the accused had entered from bathroom and they went there on hearing some noise. She admitted that she had not seen anybody entering into the house i.e. K41. She stated that she had written in her complaint i.e. Ex.PW2/A that the accused was carrying two bags. She denied the suggestion that she was deposing falsely.
8. PW 3 Dr. J. Lobo deposed that on 19.12.2002 she had gone to Pune for the marriage of her niece. She deposed that on 21.12.2002 she received a phone call from her neighbor Mrs. Sarita Kapoor regarding the theft in her house and the fact that they had apprehended the person and called the police. She deposed that she took the evening flight along with her nephew and reached Delhi at night. She deposed that she found that the person who had been apprehended was Gayatri Batra. She deposed that accused Gayatri Batra was known to her niece and was invited for wedding which was to be held on 23.12.2002. She further deposed that on 22.12.2002 she went to PS Defence Colony and submitted the complaint as well as list of stolen items i.e. Ex.PW3/A. She deposed that later on her stolen items were recovered by the police and she got released the same on superdari vide superdarinama Ex.PW3/B. She deposed that the accused was known to her and she doubted her for committing FIR No. 644/02 5/19 the theft in her house. She deposed that her stolen items were recovered from the accused as was told to her by the police.
This witness further identified the case property as Ex. P1 to P6.
9. During her cross examination she stated that first of all she went to PS on 22.12.2002 at about 11.00 am. She stated that prior to that police had come to her residence in midnight of 21/22.12.2005. She stated that there was no public person along with the police at that time. She stated that police did not record her statement. She stated that she gave her complaint to the police in PS Defence Colony on 22.12.2002. She stated that police had not reduced in writing any of her statement.
She admitted that Ms. M. Lobo used to give tuition to Gayatri Batra prior to the incident. She denied the suggestion that the accused had gone to consult M. Lobo regarding her studies. She denied the suggestion that when the accused noticed, the lock was broken and she informed Mr. Bajaj and Ms. Kapoor the neighborer who in turn called the police. She denied the suggestion that police falsely implicated the accused in the present case. She stated that she did not mention any identification mark, colour, description or specification regarding the articles produced by her in the court. She voluntarily stated that she had written in her complaint regarding the coins and currency notes. She admitted that shawls and purse are easily available in the market. She admitted that foreign FIR No. 644/02 6/19 currency notes and coins are easily available in the market but not travelers cheques as they were signed by her. She stated that she had seen the accused on 22.12.2002 in PS Defence Colony. She admitted that when police visited her residence in the midnight they took written complaint from S. Kapoor in her presence. She denied the suggestion that she was deposing falsely. She denied the suggestion that the accused had not committed any theft from her house. She denied the suggestion that no recovery was effected from the accused. She denied the suggestion that the accused had been falsely implicated.
10. PW 4 HC Gayatri deposed that on 21.12.2002 she was posted at PS Defence Colony and on that day, on receipt of message from SI Paramvir Dhaiya, she went to the spot and took accused Gayatri Batra (correctly identified) to PS Defence Colony. She deposed that the accused was arrested vide Ex.PW4/A and her personal search was conducted vide Ex.PW4/B. She deposed that the car was seized vide Ex.PW4/C, acid and kundi were seized vide Ex.PW4/D, implements of theft were seized vide Ex.PW4/E and stolen articles were seized vide Ex.PW4/F. This witness further identified the case property i.e. one small hammer, one large hammer, one screw driver, one chaini & one plass as Ex.P6.
11. During her cross examination she stated that she received the information FIR No. 644/02 7/19 about this case at about 1.30 pm in the PS. She stated that after receipt of information, she left for the spot and came back to the PS along with the accused. She admitted that she returned back to PS before 3.00 pm. She stated that all the memos as mentioned in her examinationinchief were prepared by the IO in her presence at the spot. She stated that statement of one public witness was recorded by the IO in her presence at the spot when she had gone to take the accused from the spot. She stated that she visited the spot only once. She stated that the statement of the public witness was recorded by the IO in his own handwriting. She stated that the Hindi writing on Ex.PW2/A was in the handwriting of the IO. She stated that she cannot say as to who had written the statement in English in Ex.PW2/A. She stated that statement on Ex.PW2/A was in the handwriting of the IO and was recorded by him in her presence at the spot at around 2.00 pm. She denied the suggestion that memo Ex.PW4/A, 4/C, 4/E & 4/F were not prepared in her presence and her signatures were obtained on the above referred memo by the IO in the PS. She denied the suggestion that she was deposing falsely at the instance of the IO to support the police case.
12. The prosecution also examined Ct. Jagdish and IO/SI Paramvir Dahiya as PW5 & 6 respectively. However, the cross examination of these witnesses remained deferred and accordingly in view of the provision of Section 33 of the Indian Evidence Act, 1872 remained inadmissible and hence, the same has not been discussed here in. (Reliance is being placed upon the law laid down in FIR No. 644/02 8/19 Mulkh Raj v. Delhi Administration, AIR 1974 SC 173 and Rex v. Daya Shankar Jaitly, AIR 1950, All.177).
13. This so far is the prosecution evidence in the matter.
14. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP, have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
15. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
16. It stands proved from the deposition of eye witness Ms. Sarita Kapoor (PW2) duly corroborated by deposition of Dr. J. Lobo (PW3) and HC Gayatri (PW4) that accused Gayatri was in deed found in possession of stolen articles belonging to Ms. J. Lobo.
17. The crime as committed by accused Gayatri was witnessed by complainant Ms. Sarita Kapoor. She was examined as PW2 by the prosecution FIR No. 644/02 9/19 and as is evident from her deposition she along with the neighborers apprehended the accused while she was trying to flee away with the stolen articles belonging to Ms. J. Lobo from her house i.e H. No. K41, NDSEII. She proved the apprehension of the accused with the bag containing the stolen articles, her handing over to the police as well as her complaint Ex. PW2/A which had formed the basis of the present case FIR.
18. Her testimony was duly corroborated by PW4 HC Gayatri who proved that on receipt of information regarding the theft she went to the spot where the accused was arrested vide Ex. PW4/A and the stolen articles, the implements used in the commission of theft were seized vide documents Ex. PW4/D to F.
19. The owner of the articles i.e. Ms. J. Lobo lend further credence of the prosecution story when she proved her complaint regarding the stolen articles as Ex. PW3/A and identified the stolen/recovered articles in the court.
20. During the course of arguments, Ld. Defence Counsel had vehemently argued that the prosecution had miserably failed to bring home the guilt against the accused. Ld. Defence Counsel attacked the prosecution story on many counts.
FIR No. 644/02 10/19
21. It was argued that the prosecution witnesses contradicted each other on material particulars and the prosecution story was full of inconsistencies and did not inspire confidence. It was argued that PW2 complainant Ms. Sarita Kapoor claimed that she had given her complaint to the police in the evening however, in the later part of her cross examination she admitted that she had given the complaint to the police late in the night only after Ms. Lobo had come back. This was also corroborated by Ms. Lobo who stated that Sarita Kapoor's complaint was recorded in her presence at midnight. On the other hand, as per the statement of PW4 HC Gayatri, Ms. Sarita Kapoor gave her complaint at around 2.00 pm itself. Moreover, the rukka prepared on the basis of the complaint of Ms. Sarita Kapoor was allegedly sent to PS at about 7.05 pm. Similarly, though in her cross examination Ms. Sarita Kapoor claimed that on hearing the noise she went out to check however, in her examination in chief she claimed that she saw the accused outside the house of Ms. Lobo. It was also argued that the case property was planted upon the accused. As per the seizure memo the bag as shown to have been recovered from the accused was of red and blue colour where as the bag as produced in the court was only of red colour. Similarly, in the complaint the colour of the car of the accused is shown as blue where as it is evident from the RC of the vehicle that the colour of the car is white.
It was also one of the contentions that as the deposition of the IO could not be read in evidence the prosecution case has suffered immensely and FIR No. 644/02 11/19 accordingly the benefit goes to the accused.
22. However, I do not agree with either contentions of the Ld. Defence Counsel.
23. To begin with the contentions regarding the inadmissibility of the testimony of the IO and its effect upon the prosecution case, I am of the opinion that even in the absence of the testimony of the IO the prosecution has been able to squarely make out its case against the accused. IO was not an eye witness of theft and came into picture only later on. His role was confined to the recording of the statement of the complainant, arrest of the accused and the seizure of the stolen articles along with the implements used for committing theft. Material prosecution witness was Ms. Sarita Kapoor and she duly proved her complaint as Ex. PW2/A. She was the one who had apprehended the accused at the spot with the bag containing the stolen articles. The arrest of the accused and the seizure of the stolen articles were duly proved by PW4 HC Gayatri. The testimony of the IO would have been on the same lines as that of PW4 HC Gayatri as both of them were part of the investigation and entire proceedings/investigation was conducted in their presence. IO was a formal witness as was PW4 HC Gayatri and HC Gayatri has successfully deposed for the prosecution and against the accused. There was no need for repetition of FIR No. 644/02 12/19 what was stated by her from the mouth of any particular number of witnesses i.e. to say other police official or the IO. As per the Indian Evidence Act no specific number of witnesses are required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC), (Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81 and Bachan Singh v. State of Punjab, (P&H) 1995(2) R.C.R.(Criminal)
475.
24. Coming to the second limb of the argument of the Ld. Defence Counsel regarding the inconsistencies/contradiction as appearing in the testimony of witnesses i.e. PW2 & 3 on one hand and PW4 on the other hand about the time of recording of the complaint, I would like to put the said contention to rest as the said inconsistencies can easily be ignored being too trivial/insignificant. Human memories are apt to blur with passage of time. The incident occurred in the year 2002 and the deposition of witnesses was recorded in the year 2004 & 2008 i.e. after a gap of two to six years. After such a long time period a person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weightage/ due allowance.
FIR No. 644/02 13/19
25. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 , it was observed that a witness though wholly truthful, is liable to be over awed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness. The Court while appreciating the evidence must not attach undue importance to minor discrepan cies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of per ception or observation should not be given importance. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testi mony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 at p. 2024 and State of U.P. v. Anil Singh, AIR 1988 SC 1998.
26. Merely because there are few inconsistencies in the deposition of PW2 & 3 that by itself is not sufficient to discard their testimony in toto. The fact remains that the complainant had in deed apprehended the accused with the stolen arti cles and handed over the accused to the police. She categorically proved her FIR No. 644/02 14/19 statement as Ex. PW2/A and with stood the grilling cross examination by the De fence Counsel. Furthermore, a bare glance at the complaint i.e. Ex. PW2/A would reveal that there was a time gap of 67 hours between the incident and the registration of FIR but there was no delay at all in bringing the matter to the knowledge of the police which was in fact brought to their knowledge in the after noon itself. Same is also evident from the first line of the complaint (Ex. PW2/A) which begins with "as told to you in the day earlier......" Furthermore, the rukka itself suggests that though the incident occurred at around 1.00 pm the statement was recorded at 7.00 in the evening. It cannot be ignored that as Ms. Lobo was not at her house, Gayatri was known to Ms. Lobo, as she used to come there for tuition the complainant might have waited for 56 hours before giving her formal complaint as their might have been a possibility that Ms. Lobo would have forgiv en the accused/not proceeded with the case. These considerations cannot be ruled out. In fact, a glance at complaint Ex. PW 3/A of Ms. Lobo and the arrest memo of the accused proves that these were the considerations which really weighed with the police and Ms. Sarita Kapoor and accordingly, the FIR was reg istered only at late in the evening. The arrest memo (Ex. PW4/A) proves that the accused was arrested at around 9.00 pm and from Ex. PW3/A it is crystal clear that by 9.30 pm even Ms. Lobo had reached Delhi. Moreover, Ex. PW3/A, the de position of PW3 (Ms. Lobo) and statement of accused u/s 313 Cr.P.C. makes it crystal clear that Gayatri Batra was very well known to the Lobo family. FIR No. 644/02 15/19
27. Moreover, I find no reasons why complainant Ms. Sarita Kapoor or for that matter Ms. J. Lobo would depose falsely or falsely implicate the accused there being no previous enmity between them and the accused, nothing on record whatsoever to suggest that they were inimical to the accused or had any reasons to falsely implicate the accused.
28. Similarly, whether the car of the accused was of blue colour or white colour or whether the bag was completely of red colour or of blue and red colour have hardly any significance.
29. At this stage, I would like to draw attention to the answer given by accused Gayatri to question no.3 during her examination u/s 313 Cr.P.C. She stated as under:
"I was standing outside the house of Dr. Lobo on the day of incident as I went there to see Mrs. Meagan Lobo who lived in that colony and who used to give my private tuition. While I was standing outside her house I saw that the lock of the garriage was opened, drive way was unswept and the bell was hanging by wire. Suddenly, Mrs. Sarita Kapoor came there. I told Mrs. Sarita Kapoor what all I had noticed and she asked me to wait and told that she was calling the police. One more neighbor Mr. Bajaj also came there and they informed that Mrs. Lobo's family had gone to Pune for wed FIR No. 644/02 16/19 ding. Police came there and instead of listening to me they accused me of the house breaking and the above mentioned neighborer also sided with the police and accused me and treated me like criminal. I was threatened that I would be arrested and I was not allowed to make a call at my place. At around 5.30, I was allowed to make a call and my uncle Mr. Tiwari who is no more came to PS. We were asked to hand over a large sum of money which we declined. Later on my signatures were obtained on lots of paper whose contents I could not read and thereafter, I was taken to court and then to Ti har Jail."
30. This above statement is admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. ( (Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315) and it goes onto prove the presence of the accused at the date, time and spot of the incident. It also proves that she was apprehended by complainant Ms. Sarita Kapoor and other neighborhood people and later on handed over to the police.
FIR No. 644/02 17/19
31. In fact, the above statement/answer given by the accused is of grave importance. Accused Gayatri Batra was well known to Dr. Ms. J. Lobo and her family. Same is evident from her above statement as well as from the testimony of Dr. Ms. J. Lobo and other prosecution material. During her examination in chief Ms. J. Lobo made the following statements as under:
"I found out that the person who had been apprehended was Gayatri Batra. She was known to my nieces and had been given invitation for wedding which was to be held on 23.12.2002." The defence did not at all challenge the above statement of Ms. Lobo. In fact, in her complaint Ex. PW3/A Ms Lobo stated as "In fact, she and her mother Ms. Bindu Batra had been invited for very same wedding in Pune and the suspect had full knowledge of our travel Plans, our date of departure and date of wedding slated for 23.12.2002."
32. Hence, accused Gayatri Batra being invited to the marriage and being aware that the Lobo family would not be at home during the above period in fact choose the above period to achieve her illegal desire/design. Or else when she knew that the Lobo family would not be there what was the need for her to visit the house of Ms. J. Lobo or what reasons or occasions she had to be at that place at that time.
FIR No. 644/02 18/19
33. Accordingly, in view of my above discussion, accused is held guilty under section 411 IPC.
34. I order accordingly.
35. Copy of the judgment be given to the accused free of cost.
36. Let she be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao) Court on 07.01.2012 MM (South)/Delhi. FIR No. 644/02 19/19 IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH: DELHI In Re: STATE VERSUS GAYATRI BATRA F.I.R. No: 644/02 U/s 411 IPC P.S. Defence Colony ORDER ON SENTENCE 17.01.2012 Present: Ld. APP for the State.
Convict Gayatri Batra is present along with counsel.
Vide judgment announced on 07.01.2012 accused Gayatri Batra was convicted u/s 411 IPC.
The learned defence counsel has submitted for the convict that convict has been facing trial for the last more than 9 years and the same itself has been enough punishment for her. It was submitted that the convict has clean antecedents i.e. is not involved in any criminal activity, she has two minor children aged about 4 & 5 years to look after. It was further prayed that accused/convict be given benefit of section 360 Cr.P.C. and either released on probation or after due admonition. Reliance was placed by the Ld. Defence FIR No. 644/02 20/19 Counsel upon the law laid down in 1972 (2) SCC 633, 2011 VII AD (Delhi) and 1988 (4) SCC 551 etc. Per contra, learned APP has very vehemently argued that the act of the accused is unpardonable. It was submitted that the accused deserves no leniency.
After giving my thoughtful consideration to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case it shall meet the end of justice if convict Gayatri Batra is sentenced to undergo six months and 19 days simple imprisonment along with fine of Rs.5000/ for offence u/s 411 IPC. In default of payment of fine she shall undergo further SI of 50 days. As the accused has already undergone 19 days in custody, benefit of section 428 Cr.P.C. is given to the accused and the said period be deducted from the sentence so awarded today.
I am not inclined to give her benefit of Section 360 Cr.P.C.. Accused Gayatri Batra committed theft at the very place where she went for learning/seeking tuitions. She in fact committed breach of trust of the Lobo family. She was very well known to them for several years. Furthermore, the fact that at the time of incident the Lobo family was not there and she found the said occasion to fulfill her illegal designs shows her criminal bent of mind.
I order accordingly.
At this stage, an application u/s 389 Cr.P.C. has been moved by FIR No. 644/02 21/19 accused Gayatri Batra for suspension of sentence. Considered. As the accused was on bail during trial she is admitted to bail on furnishing bail bond in the sum of Rs. 10,000/ with one surety of the like amount for 30 days.
A copy of this order be given to the convict free of cost.
File be consigned to Record Room.
Announced in the open court (Gaurav Rao)
on 17.01.2012 MM(South): Delhi
FIR No. 644/02 22/19