Delhi District Court
State vs . Mohd. Pinku & Anr. on 25 September, 2018
IN THE COURT OF MS. CHETNA SINGH:ACMM-02
(CENTRAL) TIS HAZARI COURTS, DELHI
STATE Vs. Mohd. Pinku & Anr.
FIR No. 354/15
New Case No. 294576/16
U/s : 379/411/34 IPC and Section 147/179 Indian Railways Act r/w
Section 75 IPC.
P.S. : Old Delhi Railway Station
Date of Institution : 16.07.2015
Date on which case reserved for Judgment : 25.09.2018
Date of Judgment : 25.09.2018
JUDGMENT
1.FIR No. of the case : 354/2015
2.Date of the Commission : 25.05.2015
of the offence
3.Name of the accused : Mohd. Pinku
S/o Sh. Mohd. Alauddin,
(Since convicted vide order dated
13.01.2016)
2. Mohd. Sunny
S/o Sh. Mohd. Gulam Rasul
R/o H. No. C-Block, 726, JJ
Colony, Bawana, Delhi
FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 1/26
4.Offence complained of : 379/411/34 IPC and Section
147/179 Indian Railways Act r/w
Section 75 IPC.
5.Plea of accused : Pleaded not guilty.
6.Final order : Convicted.
BRIEF FACTS
1. The story of the prosecution is that on 25.05.2015 at about 08.00 PM at platform No. 9, East Side, Old Delhi Railway Station within the jurisdiction of PS Old Delhi Railway Station (ODRS) accused Mohd. Sunny alongwith co-accused Mohd. Pinku (already convicted vide order dated 13.01.2016) in furtherance of their common intention committed theft of Rs. 20,000/- and ID Card from the pocket of complainant Sh. Anang Pal and on the intervening night of 01/02.06.2015, accused Mohd. Sunny was found in possession of the ID Card of complainant as per seizure memo Mark A which he retained dishonestly knowing or having reason to believe the same to be stolen and their previous conviction in FIR NO. 50/03 PS New Delhi. He was also found in the railway premises without having any authority ticket and thereby he committed offence punishable under Section 75/379/411/34 IPC and Section 147/179 of FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 2/26 Indian Railways Act.
2. On the basis of a complaint, present FIR was registered. After carrying out the investigation, charge sheet was filed. Both accused persons were summoned. After compliance of section 207 Cr. P.C, charge u/s 379/411/34 IPC & Section 147 r/w 179 of IR Act and enhanced punishment u/s 75 IPC was framed against accused Mohd. Sunny and charge u/s 379/34 IPC & Section 147 r/w 179 of IR Act was framed against accused Mohd. Pinku the charge was duly explained to him in vernacular on 20.08.2015 to which he pleaded not guilty and claimed trial. Thus, the matter was put to trial.
APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused, the prosecution has examined 9 witnesses in total.
4. PW-1 Sh. Anang Pal deposed that on 25.05.2017, he alongwith his cousin brother namely Santosh and one friend was trying to board Porbandar express from platform No. 9 to go to his home at the above mentioned address. He was carrying his ID and Rs. 20,000/- cash FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 3/26 in the dub of his wearing pant. When he was boarding the train, he felt some sensation and immediately checked his pocket and found that someone has taken out his money and ID Card by creating a slit with blade in his pocket. He turn around and saw one boy going in his opposite direction carrying his money and ID card. He raised alarm and his cousin Santosh and his friend apprehended that boy. However, before apprehension that boy handed over the money to some other boy who fled away. He narrated the whole incident to the police and police recorded his statement Ex. PW1/A bearing his signature at point A. Police also prepared site plan at his instance and took cursory search accused vide memo Ex. PW1/B. He also handed over his railway ticket to the police which is Ex. PW1/C. This witness was not cross-examined by accused despite opportunity being given.
5. PW-2 Sh. Anup Pal deposed that on 25.05.2017 at 08:00 PM, he alongwith Anang Pal, Santosh Pal came at ODRS to visit his village Rasula Pur. While boarding inside general compartment of Porbandar Express at platform No. 9. Suddenly, Anang Pal raised alarm "Chor Chor". The apprehended accused Pinku who committed theft by FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 4/26 creating slit with blade at pocket of his pant. They left to police station and informed the incident. Police officer prepared site plan Ex. PW2/A. Police also seized pant of complainant vide memo Ex. PW2/B. He correctly the identified the railway tickets which are Ex. PW2/C and case property Ex. P1 (colly).
This witness was cross-examined at length by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
6. PW-3 ASI Surender Singh deposed that on 25.05.2015, he was posted as Duty officer and received a rukka from Ct. Sunil about 10:20 PM. On the basis of rukka, he registered the FIR and handed over Tehrir and copy of FIR Ex. PW3/A to Ct. Sunil for further course of action. He also made endorsement on the rukka from point A1 to A2 which is Ex. PW3/B and issued certificate under Section 65B of Indian Evidence Act is Ex. PW3/C. This witness was cross-examined at length by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 5/26
7. PW-4 ASI Pawan Kumar deposed that on 25.05.2015, HC Ram Kumar handed over him one pullanda sealed with the seal of RK and he made entry in this regard in register No. 19 at S. No. 1541 which is Ex. PW4/A. On 02.06.2015, one voter ID Card in the name of Anang Pal was deposited in the malkhana by HC Ram Kumar in connection with the case and entry was made by him in the register No. 19 at S. No. 1546 which is Ex. PW4/B. This witness was cross-examined at length by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
8. PW-5 Ct. Sunil deposed that on 25.05.2015 at about 07:45 PM, he alongwith HC Ram Kumar was on patrolling duty on Platform No. 9 & 10 of ODRS. When complainant namely Anang Pal saw the money in the hand of accused Mohd. Pinku who already handed over the money to accused Mohd. Sunny. During the investigation accused Mohd. Pinku had disclosed that the money picked pocket by him from the complainant was given to accused Mohd. Sunny. Disclosure statement of accused Mohd. Pinku is Ex. PW5/A and at the instance of accused Mohd Pinku they reached at house of accused Mohd. Sunny and pointing out memo was FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 6/26 prepared by the IO which is Ex. PW5/B bearing his signatures at point A. On receiving secret information on 02.06.2015, he alongwith IO went to house of accused Mohd. Sunny and apprehended vide memo Ex. PW5/C, personal search was conducted vide memo Ex. PW5/D and disclosure statement is Ex. PW5/E, bearing his signatures at point A. At instance of accused Mohd. Sunny, voter ID card of complainant was recovered from roof of the house of accused Mohd. Sunny. The recovery memo in this regard was prepared vide memo Ex. PW5/F. He correctly identified accused Mohd. Sunny in the court.
This witness was cross-examined at length by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
9. PW-6 HC Balinder Singh deposed that on 01.06.2015, he was posted as DD Writer. He registered DD entry No. 36 regarding departure entry of HC Ram Kumar. HC Shri Krishan, Ct. Sunil and Ct. Randhir. Photocopy of same is Ex. PW6/A. This witness was cross-examined at length by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
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10. PW-7 Sh. Santosh deposed that he alongwith Anang Pal, Anup Pal came at Old Delhi Railway Station to visit his village Rasula Pur. At about 08:00 PM, when they were boarding inside the Porbandar Express at Platform No. 9 complainant Anang Pal raised alarm Chor- Chor. Thereafter, he alongwith Anup Pal and Anang Pal chased the accused Mohd. Pinku.
This witness was cross-examined at length by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
11. PW-8 SI Madan Gautam has proved conviction report of accused Mohd. Sunny in case FIR No. 520/03 PS NDLS which is Ex. PW8/A. Certificate under Section 65B of Indian Evidence Act regarding above said report is Ex. PW8/B. This witness was cross-examined at length by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
12. PW-9 ASI Ram Kumar deposed that on 25.05.2015, he FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 8/26 alongwith Ct. Sunil were on patrolling duty at platform no. 9 and 10, ODRS. At about 8.35 PM, complainant Anang Pal and two other persons met him and handed over accused Mohd. Pinku (already convicted) and told him that when they were boarding Porbander Express Train in general compartment (engine side), accused Mohd. Pinku pick pocketed complainant and handed over Rs.20,000/- and voter ID to accused Mohd. Sunny. He correctly identified accused Mohd. Sunny in the court. He recorded statement of complainant which is already Ex.PW1/A. He endorsed the same at point B. He prepared rukka which is Ex.PW9/A and handed over the same to Ct. Sunil for registration of FIR. After sometime Ct. Sunil returned to the spot with original rukka and copy of FIR and handed over the same to him. He prepared site plan which is already Ex.PW2/A, bearing his signature at point A. Thereafter he seized grey colour pant of complainant vide seizure memo already Ex.PW2/B, bearing his signature at point B. He also seized railway ticket from complainants vide seizure memo already Ex.PW1/C, bearing his signature at point D. The railway tickets are already Ex.PW2/C, bearing his signatures at point A. He arrested accused Mohd. Pinku vide arrest memo already Ex.PW1/D, bearing his signature at point D. Personal search of accused Mohd. Pinku was conducted vide search memo FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 9/26 already Ex.PW1/E, bearing his signature at point D. He also recorded disclosure statement of Mohd. Pinku which is already Ex.PW5/A, bearing his signature at point B in which accused Mohd. Pinku disclosed that he had handed over Rs.20,000/- and voter ID to accused Mohd. Sunny. He deposited the case property in the malkhana. On next day i.e. on 27.05.2015, accused Mohd. Pinku took them to house of accused Mohd. Sunny and he prepared pointing out memo which is already Ex.PW5/B, bearing his signature at point B. However, on 27.05.2015, accused Mohd. Sunny could not be found. In the intervening night of 01/02.06.2015, they went to JJ Colony, Bhawana i.e. house where found and he arrested accused Mohd. Sunny vide arrest memo already Ex.PW5/C, bearing his signature at point A. Personal search of accused Mohd. Sunny was conducted vide memo already Ex.PW5/D, bearing his signature at point A. Accused Mohd. Sunny took them to the roof of his house from where voter ID of complainant was recovered. He seized the same vide seizure memo already Ex.PW5/F, bearing his signature at point B. Disclosure statement of accused Mohd. Sunny was recorded vide memo already Ex.PW5/E, bearing his signature at point B. They returned to Police station. He correctly identified the case property already Ex.P1 (colly).
This witness was cross-examined at length by Ld. Legal Aid FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 10/26 Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
13. Upon completion of Prosecution Evidence, statement of accused Mohd. Sunny u/s 313 Cr.P.C was recorded on 19.09.2018 wherein he has pleaded innocence and he had opted not to lead any defence evidence. Final arguments were heard on 25.09.2018.
14. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
15. In order to prove its case, the prosecution has examined the complainant namely Anang Pal as PW-1 alongwith his cousin brother namely Santosh and his friend namely Sh. Anup Pal, PW-2 who were accompanying the complainant for going to their native place. The prosecution has also examined police officials and thus nine witnesses in total have been examined for proving that the accused committed theft of the articles belonging to the complainant and was also found in railway premises without any valid ticket.
FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 11/26
16. Before appreciating the testimony of the above mentioned witnesses, it is necessary to list out the essential ingredient of Sections 379/411/34 IPC and Section 147/179 of Indian Railways Act, 1989, which are as follows:
The essential ingredient for proving offence u/s 379 IPC are as follows:
(i) that the property in question is movable property;
(ii) that such property was in the possession of a person;
(iii) that the accused moved such property whilst in the possession of that person;
(iv) that he did so without the consent of that person;
(v) that he did so in order to take the same out of the possession of that person;
(vi) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
Essential ingredients of Section 411 IPC are as follows:-
1. That the stolen property in question is a stolen property;
2. That the accused received or retained such property.
Essential ingredients of Section 34 IPC are as follows:
(1) That there must be a criminal act;
(2) The act must have been done by several
FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 12/26
persons in furtherance of their common intention. Section 147/179 of Indian Railways Act, 1989 read as under:
Section: 147 of IR Act:
(1) if any person enters upon or into any part of a railway without lawful authority or having lawfully entered upon or into such part misuses such property or refuses to leave; and (2) Any person referred to in sub-section (1) may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid.
Section: 179 of IR Act:
(1) if any person commits any offence mentioned in sections 150 to 152, he may be arrested without warrant or other written authority by any railway servant or police officer not below the rank of a head constable.
(2) if any person commits any offence mentioned in section 137 to 139, 141 to 147, 153 to 157, 159 to 167 and 172 to 176, he may be arrested, without warrant or other written authority, by the officer authorized by a notified order of the Central Government. (3) The railway servant or the police officer or the officer authorized, as the case may be, may call to his aid any FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 13/26 other person to effect the arrest under sub-section (1) or sub-section (2), as the case may be. (4) Any person so arrested under this section shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate.
17. The main witness for the prosecution is PW-1 Sh. Anang Pal who deposed that he alongwith his cousin brother namely Santosh and one friend were trying to board Porbandar Express from platform No. 9 to go their native place and when he was boarding the train he felt some sensation in his pocket and on checking the same he found that some one had taken away Rs. 20,000/- and I Card by sliting the pocket with blade. He further deposed that he immediately turned around and saw that one boy was going in opposite direction carrying his money and I Card and he raised an alarm and his cousine and his friend apprehended the boy (accused Mohd. Pinku convicted on 13.01.2016). However, before apprehension that boy (accused Mohd. Pinku) handed over the money to some some other boy who fled away. Thereafter, they went to the police station and narrated the whole incident and his statement Ex. PW1/A was recorded. He identified accused Mohd. Pinku. FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 14/26
18. The complainant has consistently deposed as regards sequence of events and his presence on the railway station has been further proved by his ticket Ex.PW2/C, seized vide memo Ex. PW1/C bearing signatures at point A. The ticket mention the date of journey to be on 25.05.2015 from Delhi Junction to Hardoi at about 19:08 PM. His testimony has further been corroborated by his original statement Ex. PW1/A wherein he has consistently stated as regards the sequence of event.
19. His testimony further corroborated by the testimony of his cousin brother namely Santosh who was examined as PW-7 and who stated that at about 08:00 PM he alongwith complainant and Anup Pal came to Old Delhi Railway Station to go to their native place and when they were trying to general compartment from platform No. 9, suddenly complainant raised an alarm "Chor- Chor" and he alongwith Anup Pal and the complainant chased the accused Mohd. Pinku who handed over Rs. 20,000/- and ID card to another co-accused whom he could not identify. He further deposed that accused Mohd. Pinku was apprehended at the spot and he handed over his railway ticket bearing his signature at point FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 15/26 C vide memo Ex. PW1/C. He identify the railway ticket and on cross examination by Ld. APP for State he identified the co-accused Mohd. Sunny who escaped from the spot. He further identified the trouser produced in the court by the MHC (M) as Ex. P1 and also identified his signature at point C on the seizure memo of trouser Ex. PW2/A.
20. Even during his cross examination by Ld. LAC, he denied the suggestion that he has not seen the accused Mohd. Sunny at the time of his running away.
21. The testimony of the complainant further finds corroboration by the testimony of PW-2 Sh. Anup Pal who deposed similarly and PW-7 and correctly identified accused Mohd. Sunny in the court. He further identified his signatures on the arrest memo of accused Pinku at point B and on the personal search memo at point B. He further identified his signature on the seizure memo of trouser Ex. PW2/B at point A and his signatures on the seizure memo of railway ticket Ex. PW2/C at point B.
22. Thus it is proved by the prosecution that both the complainant and his friend Anup Pal and his cousin Santosh were FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 16/26 traveling together, as per the tickets Ex. PW2/C.
23. Even though it is settled law that a cogent, coherent and trustworthy testimony of one witness is also sufficient to prove the case of the prosecution, however, in the present case the testimony of the complainant is corroborated by his original statement as well as by the testimony of his friend and his cousin who have been examined as PW2 and PW7.
24. Be that as it may, it is also settled law that the testimony of a sole eye witness which is cogent and coherent and trustworthy can be the sole basis of conviction.
25. In the matter of State U.P. Vs Ballabh Das (AIR 1985 SC 1384) (1984 Cri LJ 2009) the Supreme Court in paras 3 and 5 at page 385 observed:-
"There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for conviction an accused. What the law requires is that where the witness are interested, the court should approach their evidence with care and caution in order to exclude the possibility FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 17/26 of false implication."
26. In the matter of State of U.P. Vs M.K. Anthony (Air 1985 SC
48): (1985 Cri LJ 493) the Supreme Court observed in para 10 at page 54:-
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once the impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general benor or the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief.
Even honest and trustful witness may differe in some details unrelated to the main incident because power of observation, retentions and reproduction differ with individuals."
27. Further, in the matter of "Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19" it has been observed that:-
"....Even if the case against the accused hangs on the evidence of a single eye-witness it may FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 18/26 be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs...."
28. In the present matter, apart from the complainant, his testimony is supported by two other witnesses, who may be called as interested witnesses being friends of the complainant, however, it seems unlikely that any person would unnecessarily implicate any accused in a false case without any personal enmity. It is not the defence of the accused that he was known to the complainant or his friend earlier or that he had previous enmity with the complainant or his friend and thus the possibility of falsely implication without any reason is ruled out.
29. Even otherwise, both the witnesses have been cross- examined by Ld. Legal Aid Counsel, however no material contradictions could be noted.
30. It was argued by the Ld. defence counsel that accused FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 19/26 Mohd. Sunny has been falsely implicated in the present case and that he was never present at the spot as he was arrested after about 6 days of the incident.
31. However, prosecution has been able prove that I card of the complainant was recovered from the possession of accused Mohd. Sunny who was arrested on the basis of the disclosure statement of accused Mohd. Pinku which is Ex. PW5/A. In pursuance of the said disclosure, recovery was made from accused Mohd. Sunny on the intervening night of 01/02.06.2015 from his house and he was arrested vide memo Ex. PW5/C. Earlier on 27.05.2015 accused Mohd. Sunny was searched, however could not be found and a pointing out memo Ex. PW5/B was prepared. The voter I Card seized from accused Mohd. Sunny was seized vide memo Ex. PW5/F.
32. Be that as it may, it has been adequately proved by the prosecution that the accused Mohd. Sunny was found in possession of the I Card of the complainant in pursuance of the disclosure statement made by accused Mohd. Pinku. Even otherwise, the identity of the accused Mohd. Sunny has been established by PW-2 Anup Pal who had FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 20/26 correctly identified him.
33. The story of the prosecution is further corroborated by the testimonies of police officials namely PW3/ASI Surender Singh who registered the present case FIR on the basis of rukka Ex.PW3/B. The copy of FIR is Ex. PW3/A. PW4 who made relevant entries in register no.19 as regards the deposition of the case property vide memo Ex.PW4/A and Ex. PW4/B. PW-5 Ct. Sunil was on patrolling duty at platform No. 9 & 10 at Old Delhi railway station alongwith HC Ram Kumar when he met the complainant, his friend and his cousin brother, and he also accompanied the IO for tracing out accused Mohd. Sunny who was arrested vide memo Ex. PW5/C bearing his signatures at point A.
34. The story of prosecution is further corroborated by the testimony of PW-9 IO ASI Ram Kumar who left for investigation vide DD entry No. 36 alongwith Ct. Sunil which is Ex. PW6/A. PW-9 proved the documents being rukka Ex. PW9/A, seizure memo of pant Ex. PW2/B, seizure memo of ticket Ex. PW2/C, site plan Ex. PW2/A, arrest memo of accused Mohd. Pinku Ex. PW1/D, personal search memo of accused Mohd. Pinku is Ex. PW1/E, disclosure statement of accused Mohd. Pinku FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 21/26 is Ex. PW5/A, pointing out memo of the house of accused Mohd. Sunny is Ex. PW5/B, arrest memo of accused Mohd. Sunny is Ex. PW5/C, personal search memo of accused Mohd. Sunny Ex. PW5/D, recovery/seizure memo of voter I Card of complainant is Ex. PW5/F, disclosure statement of accused Mohd. Sunny Ex. PW5/E and also identified the case property Ex. P1 (collectively). Thus, it has been proved that accused Mohd. Sunny in furtherance of his common intention with accused Mohd. Pinku (convicted vide order dated 13.01.2016) committed theft of Rs. 20,000/- and I Card of the complainant and the said I Card was recovered from him and thus it has been proved that he committed offence under Section 379/34 IPC.
35. All the police officials have deposed consistently as regards documents prepared by them and the documents on record support the sequence of events as narrated by the complainant and his friend and his cousin brother.
36. It is settled law that police witnesses are reliable witnesses even without independent corroboration. It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. State" (AIR 2003 SC 1311) that :-
FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 22/26
"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'.
37. The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) has held that:-
"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 FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 23/26 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 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".
38. It has further been proved that the accused Mohd. Sunny was present at the Railway Station by the testimony of PW-2 and PW-7 and by the recovery of the I Card of the complainant from him. However, he could not produce a valid railway ticket and thus clearly he was present in the railway premises without a valid ticket and thus offence punishable u/s 147/179 of Indian Railways Act stands proved against the accused Mohd. Sunny.
39. It is also matter of record that accused Mohd. Sunny has been previously convicted u/s 379/411 IPC and 147/1779 of Indian Railways Act in case FIR No. 520/03, PS NDLS as per the conviction report Ex. PW8/A proved by SI Madan Gautam examined as PW-8 by the FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 24/26 prosecution. Thus it has been proved by the prosecution that the accused Mohd. Sunny was previously convicted for the same offence for which he has been chargesheeted in the present case. Thus offence u/s 75 IPC also stands proved against the accused Mohd. Sunny.
40. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test which are per-requisites before conviction should be recorded, which are as under:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) The circumstances concerned "must or should"
and not "may be" established;
(3) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 25/26 must so that in all human probability the act must have been done by the accused.
41. Thus, it is clear from the above mentioned discussion that the prosecution has been able to prove its case against accused Mohd. Sunny and hence the accused is hereby held guilty for the offences punishable u/s 379/34 IPC and Section 147/179 of Indian Railways Act and Section 75 of IPC. Thus, accused Mohd. Sunny is convicted for the offence punishable u/s 379/34 IPC and Section 147/179 of Indian Railways Act and Section 75 of IPC.
42. Ordered accordingly.
CHETNA Digitally signed by CHETNA
SINGH
Announced in the open
SINGH Date: 2018.09.27 14:52:56 +0530
Court on 25.09.2018
(Chetna Singh)
Addl. Chief Metropolitan Magistrate-02
Central/Tis Hazari Courts, Delhi/25.09.2018 FIR No. 354/15 State Vs. Mohd. Pinku & Anr. PS: ODRS Page No. 26/26