Delhi District Court
State vs . Suraj @ Sonu on 22 May, 2023
IN THE COURT OF SH. AJAY NARWAL, MM-02, NORTH DISTRICT, ROHINI
COURTS, DELHI
State Vs. Suraj @ Sonu
FIR No. 112/2011
PS: SP Badli
U/S : 392/411/34 IPC
JUDGMENT
ID number of the case : 5284814/2016
Date of commission of offence : 17.03.2011
Date of institution of the case : 20.01.2012
Name of the complainant : Smt. Kela Devi
Name of accused and address : Suraj @ Sonu S/o Sh. Uggarsen @ Jeevan
Ram R/o T-270, MCD Colony, Samaypur,
Delhi.
Offence complained of or proved : U/s 392/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 22.05.2023
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. The case of the prosecution in brief is that on 17.03.2011 at around 6.30 AM at Gali No. 7, Samaipur, Delhi, accused Suraj @ Sonu alongwtih other co-accused Gaurav (since not traceable)in furtherance of their common intention, within the jurisdiction of PS SP Badli, committed theft of a Mangal Sutra belonging to the complainant Smt. Kela Devi and in committing the said theft, he alongwith co-accused Gaurav put the complainant in the fear of instant hurt/ wrongful restraining and that accused in presence FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 1 of 17 of the complainant Smt. Kela Devi committed the extortion and induced the said complainant to hand over the said Mangal Sutra and thereby committed an offence under section 392 IPC. Secondly, on the abovesaid date and time, accused has dishonestly received or retained the stolen property i.e. Mangal Sutra belonging to Smt. Kela Devi knowing or having reason to believe that such property is a stolen property and thereby committed an offence under section 411 IPC. On the basis of this statement present FIR was registered against the accused.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused person and challan was presented in the Court.
3. Copy of challan and relevant documents were supplied to the accused person free of costs as envisaged under Section 207 of Cr.P.C.
4. A prima facie case under Section 392/411 IPC was found to be made out against the accused. Charge was framed upon the accused person accordingly on 02.04.2013. The accused person pleaded not guilty and claimed trial.
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5. In order to prove its case, prosecution examined five witnesses.
6. PW1 W/HC Raj Rani deposed that on 17.03.2011, she was posted at PS SP Badli as Duty Officer. On that day, her duty hours were from 08.00AM to 04.00 PM. Ct. Deepak handed over to her one rukka. She called the computer operator and on the basis of which, he registered FIR No. 112/2011 PS SP Badli Ex. PW1/A (OSR). FIR was registered through computer installed at PS SP Badli which did not allow any manipulation after feeding the data. First printout of the same was kept in a register which was maintained for the said purpose. She put her endorsement on the rukka Ex. PW-1/B. She was not cross-examined by accused.
7. PW2 Smt. Kela Devi deposed that in the month of March, 2011, however, she did not remember the exact date. On the date of incident, when she was returning back after taking milk to her house. She reached near Gali No. 7, suddenly two boys on a black colour motorcycle bearing No. 7824, (however, she does not remember the complete registration number of bike) came and one of them put his hand on her shoulder, on which she turned back and the said person tried to snatch her mangalsutra (gold) which was wearing on her neck. Thereafter, she caught hold of her mangalsutra on which, one of them got down from motorcycle and pushed her and showed her one knife. The said person threatened her either she should hand over the mangalsutra or else she would be killed. Thereafter, she raised alarm by shouting. The person sitting on motorcycle tried to start the motorcycle but in the meantime, the police officials arrived at the spot and FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 3 of 17 apprehended the person sitting on the bike. The other person who threatened her with the knife managed to escape/fled from the spot. She narrated the incident to the police officials and they recorded her statement Ex. PW2/A. Police officials seized the motorcycle vide seizure memo Ex. PW2/B. Police officials also seized her mangalsutra vide memo Ex. PW2/C. The name of the accused was disclosed as Suraj @ Sonu. He was arrested and personally searched vide memos Ex. PW2/D and Ex. PW2/E. She got released the said mangalsutra vide superdarinama Ex. PW2/F. Witness correctly identified the accused present in the court. Witness correctly identified the mangalsutra in the photographs mark A-1 and A-2. The witness also identified the mangalsutra as Ex. P-1. Having seen the photographs mark A-3 to A-5 of the motorcycle, witness identified the motorcycle as Ex. P-2. Ld. APP for the State had put a leading question on the point of date of incident and registration number of motorcycle. She stated it to be correct that the date of incident was 17.03.2011. He further deposed that she cannot tell whether the registration number of motorcycle was DL-8SU-7824, however, it was 7824 in the end and the said motorcycle was black in colour. The said witness was cross examined by Ld. Defence counsel.
8. PW3 Smt. Kamla Devi deposed that she is registered owner of motorcycle bearing No. DL8SU7824. On 01.10.2011, she got released the vehicle on superdari vide superdarinama Ex. PW3/A. She identified the photographs of her motorcycle as Ex. P-1 (colly). The said witness was cross examined by Ld. Defence counsel.
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9. PW4 ASI Lal Singh deposed that on 17.03.2011 he was posted at PS SP Badli as head constable. On that day, he alongwith Ct. Deepak was on patrolling and at about 06.30 AM, when they reached gali no. 7, Samaipur Badli, they heard a noise. They reached at the spot and found that complainant Kela Devi had apprehended one boy alongwith motorcycle who had snatched her mangal sutra with the help of his associate who had ran away from the spot. The person who had been apprehended disclosed his name as Suraj @ Sonu. He formally searched that person and mangal sutra was recovered from his pocket. He recorded statement of Smt. Kela Devi. Thereafter, he seized the mangal sutra vide seizure memo Ex. PW2/C. He also seized the motorcycle vide seizure memo Ex. PW2/B Thereafter, he prepared rukka Ex. PW4/A. He handed over the rukka to Ct. Deepak for registration of FIR. He prepared site plan at the instance of complainant Ex. PW4/B. Thereafter, Ct. Deepak returned to the spot and handed over original rukka and copy of FIR to him. He arrested accused vide arrest memo Ex. PW2/D. He also personally searched accused vide personal search memo Ex. PW2/E. Thereafter, they returned to police station. Accused was sent to lock-up and case property was deposited in malkhana. Accused was produced in the court and he was sent to JC. Further investigation of the present case was marked to another IO. He handed over the case file to MHCR. Witness identified the accused present in the court. He also identified photographs of mangalsutra marked as Mark A1 and A2, mangalsutra as Ex. P1 and photographs of motorcycle marked as Mark A3 to A5 and motorcycle as Ex. P2. Witness was cross-examined by ld. Defence Counsel.
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10. PW5 SI Bijay Kumar deposed that on 10.04.2011 he was posted at PS SP Badli as SI. He is second IO in this case. On that day, the case file was marked to him. He searched co-accused namely Gaurav @ Guddu but he could not found him. He released the case property i.e. Mangalsutra of the complainant and the motorcycle bearing registration no. DL8SU7824 which was used by the accused person also released by him. He recorded the statement of Kela Devi and superdar Kamla Devi. This case was registered u/s 382 IPC but after compliance, it was converted to 392 IPC. After that, he filed the chargesheet in the court. Witness was cross-examined by ld. Defence Counsel.
11. After completion of prosecution evidence, statement of accused person under Section 313 Cr.P.C. was recorded on 05.04.2023. All incriminating material brought on record were put to the accused person, to which he denied the allegations made against him and pleaded that he has been falsely implicated in this case. Accused person did not opt to lead any evidence in his defence and the same was closed.
12. Arguments heard. Record perused.
13. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused. It is submitted by the learned defence counsel that the accused person FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 6 of 17 has been charged for the offences punishable under section 392/411 of IPC but the prosecution has failed to prove the case to prove the guilt of the accused person beyond reasonable doubt.
14. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
15. At this stage, it would be advantageous to refer section 392 of IPC which reads as under:-
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway be-
tween sunset and sunrise, the imprisonment may be ex-
tended to fourteen years.
16. Section 390 of the IPC defines robbery and reads as under:-
In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntar-
ily causes or attempts to cause to any person death or FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 7 of 17 hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extor- tion by putting that person in fear of instant death, of in- stant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations.
18. In the judgment of Venu Vs State (2008) 3 SCC 94, the Hon'ble Supreme Court defined the essential ingredients of the offence u/s 392 IPC as under:-
"8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft."
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19. Now let us discuss the oral evidence of the public witness in this case. In order to prove its case, the prosecution has examined only one pubic witness i.e. Smt Kela devi PW-1 is the complainant in this case. She proved her statement Ex. PW-2/A. She de-
posed that on the date of incident, she was returning back after taking milk to her house. She further deposed that she reached near Gali No. 7, suddenly two boys on a black colour motorcycle bearing No. 7824, came and one of them put his hand on her shoul- der, on which she turned back and the said person tried to snatch her mangalsutra (gold) which she was wearing on her neck. She further deposed that she caught hold of her mangalsutra on which, one of the accused got down from motorcycle and pushed her and showed her one knife. She further deposed that the accused threatened her either she should hand over the mangalsutra or else she would be killed. She further deposed that she raised alarm by shouting and the accused person sitting on motorcycle tried to start the motorcycle but, in the meantime, the police officials arrived at the spot and appre- hended the person sitting on the bike. She further deposed that the other person who threatened her with the knife managed to escape/fled from the spot. She further deposed that she narrated the incident to the police officials and they recorded her statement Ex. PW2/A. She further deposed that police officials seized the motorcycle vide seizure memo Ex. PW2/B and also seized her mangalsutra vide memo Ex. PW2/C. PW-1 cor- rectly identified the accused present in the court and also correctly identified the case property in the photographs mark A-1 and A-2.
FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 9 of 17 Perusal of the testimony of PW-1 would reveal that she has categorically mentioned that one of the accused tried to snatch her mangalsutra which was wearing and one of the ac- cused got down from the motorcycle and pushed her and showed her one knife. She also clearly deposed that one of the accused tried to start the motorcycle but in the meantime the police officials arrived and apprehended the accused sitting on the bike. PW-1 identi- fied the accused Suraj as the one who was sitting on the bike and also identified the case property.
20. Ld. LAC for the accused submitted that there are minor contradictions in the testimony of the PW-1 as she has stated in her cross examination that there was no public witness present at the spot whereas PW-4 who was the first IO of the case deposed in cross examination that 3-4 persons were present at the spot. The minor contradiction in the testimony of PW-1 are not fatal to the case of the prosecution. It is pertinent to mention that apart from minor contradictions, PW-1 has remained consistent in her cross examination and during her deposition she supported the case of the prosecution. At this stage, it further become relevant that in the case of State of Karnataka v. Suvarnamma and Anothers (14.10.2014), it was observed that:-
" Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if, a video tape is replayed on the mental screen.
"(10) While appreciating the evidence of a witness, the FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 10 of 17 approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once, that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks, infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to rander is unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to from the opinion about the general tenor of evidence given by the witness, the appellate court which had not disbenefit will have to attach due weightage to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals".
21. Ld. LAC for the accused during final arguments submitted that apart from the PW- 1, prosecution has not examined any other public witness. It is settled principle of law that conviction can be based upon the sole testimony of a witness if it inspires confidence. There is no rule of law that independent corroboration is required in all cases/circumstances. Reliance may be placed upon the law laid down in Appabhai v. State of Gujarat AIR 1988 SC 696. Further, in the case of State of UP Vs Anil Singh, AIR 1988 SC 1998, the Hon'ble Apex Court deprecated the practice of rejecting the FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 11 of 17 prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. The Court held that if there is a ring of truth in the main, the case should not be rejected. The Hon'ble Supreme Court observed that it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. It is unfortunate to note that the trend is to have easy recourse of appreciating evidence and reject it on the ground of some discrepancy here and there without making any effort to disengage the truth from falsehood. 22 Furthermore, in Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336, it was held by Hon'ble Delhi High Court that it is very hard these days to get association of public witnesses in criminal investigation and normally, nobody from the public is pre- pared to suffer any inconvenience for the sake of society.
23. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held that in our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony.
24. Ld. LAC during final arguments submitted that only one public witness was ex- amined by the prosecution and all other witnesses examined by the prosecution are po-
FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 12 of 17 lice witnesses who testimonies cannot be relied upon. In the instant case, it is an undis- puted fact that only public witness was examined by the prosecution who was the com- plainant in the present matter. However, mere non-examination of other public witnesses apart from the complainant would not automatically make the testimony of police wit- nesses doubtful. Perusal of the testimony of First IO/PW 4 would suggest that while IO did try to join the independent witnesses at the time of apprehension of accused, how- ever, no persons agreed and no public person were served written notice at the time of the apprehension of accused.
25. Be that as it may, it is a settled proposition of law that the testimony of police officials cannot be discarded away merely because of the fact that no public witnesses were examined. It is another matter that their testimonies should be scrutinized in more detail. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir vs. State of Delhi [(1996) 3 SCC 338, wherein dealing with a similar question, the Hon'ble Apex Court held the interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police of- ficials, if found reliable, unless corroborated by some indepen- dent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scru- tiny, inspires confidence and is found to be trustworthy and re- liable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 13 of 17 of the prosecution case. The obvious result of the above discus- sion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trust- worthy and preferably corroborated by other evidence on record."
26. Further, the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar v. State of Maharashtra (1995) 4 SCC 255 dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
27. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
28. In the instant case, it should be noted that the accused Suraj was apprehended on the spot with the case property the very same day of the incident i.e. on 17.03.2011. He FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 14 of 17 was apprehended by chance by the police officials. In such situation, it could not be expected from the IO to join public persons before the recovery. Although, IO could have made some more efforts to join public witnesses after his apprehension, however, failure on the part of IO to do so, would not automatically cast doubt on his credibility. The recovered case properties were correctly identified by the complainant and the same was released to her on superdari. The case property i.e. mangalsutra were very personal in nature which could not be procured by the police officials under ordinary circumstances merely to falsely implicate the accused. PW-4 has been found to be reliable and his testimony do not suffer from any material contradictions on the point of recovery.
29. Ld. LAC during final arguments also submitted that other co-accused Gaurav was apprehended, hence, accused Suraj cannot be held guilty for the offence under Section 392 of IPC. It is pertinent to mention in the charge which was framed on 02.04.2013 it was clearly mentioned that the accused Suraj alongwith co-accused in furtherance of his common intention committed theft of a mangalsutra belonging to the complainant and in committing the said theft, the accused alongwith co-accused Gourav put the complainant in instant hurt/wrongful restrain. Perusal of the charge framed against the accused would reveal that his liability under Section 392 of IPC is fixed as he shared the common intention with the other co-accused for the purpose of committing the offence. PW-1 has clearly stated in her deposition that accused Suraj was sitting on the Bike when the other FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 15 of 17 accused was got down from the motorcycle and pushed her and showed her one knife and threatened her either she should hand over the mangalsutra or else she would be killed. She also clearly deposed that one of the accused tried to start the motorcycle but in the meantime the police officials arrived and apprehended the accused sitting on the bike. PW-1 identified the accused Suraj as the one who was sitting on the bike. Accused Suraj was sitting on the bike while the other co-accused was committing the offence shows that both the accused persons were committing the offence in a pre-planned manner and were acting in pursuance of the same.
29. In the present case, the prosecution has successfully proved that two persons were involved in the commission of alleged offences. Prosecution has also proved that both the accused persons involved in the commission of offences acted in furtherance of their common intention. The Hon'ble Apex Court in case titled as Killer Thiayagu @Thyagu Vs. State represented by Inspr. Of Police, Ambattur Estate Police Station cited as 2017 SCC Online SC 180, held that it is not necessary that all the persons should be named and identified before liability u/s 34 can be invoked. As long as evidence brought by the prosecution would disclose that one or more accused persons acted in concert with other persons not named or identified, liability u/s 34 would still be attracted. Thus, applying the law laid down by the Hon'ble Apex Court in aforesaid case, accused Suraj can be convicted alone as the prosecution has proved the ingredients of alleged offences against him beyond reasonable doubt as he had acted in furtherance of the common intention of FIR No. 112/2011 State Vs. Suraj @ Sonu Page No. 16 of 17 the co-accused Gaurav who was not apprehended.
30. It is pertinent to mention that once the accused is found guilty of committing the offence under Section 392 of IPC than on same facts he cannot be held guilty of com- mitting the offence of Section 411 of IPC. Reference can be to the judgement of the Hon'ble High of Allahabad in the case of Gopi Jaiswal V. State of Uttar Pradesh, Criminal Appeal No. - 1899 of 2009 wherein following was observed:-
"A real thief cannot be a receiver of a stolen prop- erty. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under Section 411 IPC".
31. In view of the aforesaid discussion, this court is of the view that the prosecution has successfully proved its case beyond reasonable doubt against the accused Suraj. Hence, accused Suraj @ Sonu stands convicted for the offence punishable under section 392 of IPC.
Dictated directly into the computer (AJAY NARWAL)
and announced in the open Court, MM-02 (North)/
On 22nd May, 2023. Rohini Courts, Delhi
22.05.2023
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