Delhi District Court
State vs . Lakshman & Ors. on 2 November, 2021
1/20
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 12/12
PS: Timarpur
U/s. 380/34 IPC
State vs. Lakshman & Ors.
Date of Institution of case: 25.02.2014
Date of Judgment reserved: 26.10.2021
Date on which Judgment pronounced: 02.11.2021
JUDGMENT
Unique ID no. of the case : 295692/2016
Date of commission of offence : 17.01.2012
Name of complainant : Mamchand s/o Babu Lal
R/o. Gali No.31,
Jagatpur Extn., Delhi.
Name and address of accused : Lakshman s/o Hari Singh
R/o Vill. Nali Hussain Pur,
PO & PS-Babu Garh Ki Chawni
Panchsheel Nagar (Hapur), UP.
Offence complained of : 380/34 IPC
Plea of accused : Pleaded not guilty
Date of order : 02.11.2021
Final order : Convicted
BRIEF REASONS FOR DECISION
1. The case of the prosecution is that on 17.01.2012 at about 2 a.m at Gali No. 31, Jagat Pur Extention, within the jurisdiction of PS Timarpur, accused Lakshman State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 2/20 along with 5-6 associates (not apprehended) committed theft of two buffaloes and two calves of complainant Mam Chand which were kept in the aforesaid property used for custody of bovine and thereby, he committed an offence punishable u/s 380/34 of The Indian Penal Code, 1860 (hereinafter called as IPC). On these allegations, the present FIR was lodged.
2. Upon conclusion of investigation, final report was filed against. Cognizance of offence was taken and the accused was summoned. Upon appearance, copy of charge sheet and other documents were supplied to the accused as per mandate of section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C) and thereafter, charge under section 380/34 IPC was framed against him on 22.01.2015 to which he pleaded not guilty and claimed trial.
3. The prosecution was given opportunity to substantiate the allegations against the accused and it examined five witnesses in it support of its case:
PW-1 Mam Chand testified that he had a buffalo dairy and on 17.01.2012 at about 2 AM, he along with his cousin brother namely Umesh was sleeping at his house and on listening to some voice he along with his cousin brother woke up and saw that all their buffaloes (9 in number) were on road. They saw that the accused along with his associates (6 in number) were holding the ropes of the buffaloes and calves. Thereafter, he raised hue and cry on which his other relatives woke up and reached there. Thereafter, accused person with his associates tried to run away in a tempo. He along with his cousin brother chased the accused and his associates, however, his associates were successful in running away from the spot in the tempo in which his two buffaloes and two calves were already boarded by them. The tempo was standing at about 100 meter away from the spot. His cousin brother Umesh was successful in State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 3/20 apprehending the accused from behind while he was trying to run away with his associates. When they came back to the spot, their two buffaloes and two calves were missing, then accused called up his associates to bring back the buffaloes. However, no one came to return the said buffaloes. They asked the accused about the said missing buffaloes and calves however, when accused refused to return the same, they made a call at 100 number. Police officials reached at the spot and recorded his statement which was Ex. PW1/A bearing his signature at point A. He handed over the accused to them. (Accused present in the court on that day was correctly identified by the witness). He had explained the place of incident to the police officials.
During cross-examination by ld. counsel for accused, he revealed that his family was running the business of dairy since generations. In the month of January 2012 he was having 17 buffaloes and 5 calves. They ran dairy in their house. In the said house he was residing along with other family members. He was residing at his house along with his brother's family and the area of the said house was about 700 gaj (yards). He and his brother got up on hearing noise of their neighbours. Again said he was not sure whether their neighbour first got up or they got up first. On that day there was no street light near his house and it was dark in the street. His cousin brother Umesh was residing in adjacent house to his house. He denied the suggestion that due to dark, he was not able to see any object upto distance of 10-15 meters. When they raised alarm the neighbours got up and they were present in their houses and some were in the street. He did not remember the time when the police reached. Police inquired from the neighbours about the incident, however, police did not record their statement. Police recorded the statement of Umesh in his presence. He denied the suggestion that accused was falsely implicated in the present case or that he was never apprehended on the spot. He also denied the State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 4/20 suggestion that he was deposing falsely.
4. PW-2 Umesh deposed that he had his buffalo dairy and on 17.01.2012 at about 2 AM, he along with his cousin brother namely Mam Chand were sleeping at his house and on listening to noise of footsteps, he along with his cousin brother woke up and saw that 6-7 persons were taking their buffaloes while holding them with ropes tied in their mouth. Thereafter he raised hue and cry on which his other relatives woke up and reached there. The tempo of accused persons was standing at about 100 meter away from the spot and they all started running towards the tempo. However, he was successful in apprehending the accused from behind while he was trying to run away with his associates in tempo. He also saw two buffaloes and two calves present in the said tempo. When they came back to the spot along with accused, their two buffaloes and two calves were missing. They asked the accused about the said missing buffaloes and calves then accused called up his associates to bring back the buffaloes. However, no one came to return the said buffaloes. Thereafter, they called at 100 number. Police officials reached at the spot and recorded his statement. (Accused present in the court on that day was correctly identified by the witness).
During cross-examination by ld. counsel for accused, he disclosed that business of the dairy was running in their house since ancestral time. He admitted that the buffaloes in their dairy were kept in a boundary wall having a height of 5 ft. The area of the dairy was about 200 sq. ft. The place where buffaloes were kept was having three gates. Again said the dairy was having only one gate. At the time of incident, the spot was less populated area. The other houses situated around the dairy were located at a distance of about 200 ft. They used to sleep at night after locking the gate of dairy from inside. The State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 5/20 distance between the dairy and his residence was about 50 meters. He admitted that the dairy was located in front of their residence. At the time of incident, he along with his parents and wife were residing in his residence. He denied the suggestion that at the time of incident, he was sleeping in his house along with his wife and parents. He admitted that there was no street light in front of their house as well as near the dairy. At the time of incident, there was clear weather having visibility about 500 meters from their dairy. The area of the main gate of their dairy was open space. He admitted that at the place of sleeping they could not notice/hear the sound of feet coming from the open space in front of the gate. The distance between his dairy and dairy of Mam Chand was about 200 feet. He admitted that Mam Chand was not his cousin by blood. He voluntarily stated that he considered Mamchand as his cousin being of same village. He admitted that he and Mamchand never resided together. He denied the suggestion that he and Mamchand had never slept together. He had not heard any sound of breaking open of the door or lock. He did not know whether the dairy where the incident had happened was locked or not. Family members of Mamchand were shouting "chor chor". He had seen the accused persons running from the spot. Only he and Mamchand were running after the accused persons. They apprehended accused persons at a distance about 300 meters. Police arrived at the spot at about 2:30 am. He denied the suggestion that no theft of buffaloes had taken place on that day. There were 17-18 buffaloes in the dairy of Mamchand. He came to know that two buffaloes and two calves were missing from the dairy of Mamchand. He denied the suggestion that aforesaid buffaloes and calves had already been removed from the dairy in order to lodge false case. Police officials had recorded his statement. He denied the suggestion that he was deposing falsely at the instance of complainant Mamchand.
State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 6/20
5. PW-3 ASI Harender Singh stated that on 17.01.2012 he was posted at PS Timarpur as HC and was working as Duty Officer from 12.00 midnight to 8.00 am. On that day, at about 2.30 am, he received a PCR call from Control Room regarding theft. He recorded the information vide DD no. 9 which was Ex.PW3/A (OSR) and shared that information with ASI Narender Singh. At about 5.30 am, he received rukka from Ct. Kamal Kant sent by ASI Narender Singh, on the basis of which, he instructed the computer operator to register the FIR who as per his instructions and dictation, registered FIR No. 12/12. The computer generated copy of FIR was Ex.PW3/B bearing his signatures at point A. He also made his endorsement on the rukka from point B to B1 which was Ex.PW3/C and bearing his signature at point A. The copy of FIR and original rukka were given to Ct. Kamal Kant to further hand over to ASI Narender Singh for investigation.
6. PW-4 Ct. Kamal Kant testified that on 17.01.2012 he was posted at PS Timarpur as Constable on Emergency Duty with ASI Narender Singh. On that day at about 2.00 a.m. a call was received by ASI Narender Singh that a thief had been caught at Gali No. 31, Jagatpur Extension, same was reduced into writing vide DD No. 9-A (already Ex.PW3/A). Thereafter, he alongwith ASI Narender Singh left for spot where they met the caller Mam Chand, who produced a person named Lakshman (The accused present in the court on that day was correctly identified by the witness) and told that he alongwith his 6-7 associates had tried to steal his buffaloes. He told that he alongwith his cousin brother Umesh were sleeping at the front side of the house and had their buffaloes tethered at the back of the house. On listening to the voice of certain person, he got up and found that a tempo was parked around 100-150 meters State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 7/20 from the Bada. Some persons had already got two buffaloes and two calves in the tempo and other buffaloes were untethered. Mam Chand alongwith Umesh tried to catch the tempo as well as persons, but they ran away alongwith tempo containing two buffaloes and two calves and they succeeded in catching accused Lakshman. Hearing the hue and cry other people from neighbourhood also gathered at the spot and gave beatings to the accused. A 100 number call was made, after which he alongwith ASI Narender Singh reached at the spot. Thereafter, accused was interrogated and after interrogation accused was arrested by ASI Narender Singh vide arrest memo Ex.PW4/A in his presence. His signature were there at point A on arrest memo. Personal search of accused was conducted vide memo Ex.PW4/B bearing his signature at point A. Disclosure statement of accused Lakshman was recorded, same was Ex.PW4/C bearing his signature at point A. Thereafter, statement of complainant was recorded. Thereafter, rukka was prepared and handed over to him for registration of FIR. After registration of FIR, he returned at the spot alongwith computerized copy of FIR and original rukka. Thereafter, accused was taken to Aruna Asaf Ali hospital and his medical examination was conducted. Thereafter, accused was taken to the PS. During cross-examination by the ld. defence counsel, he testified that when the DD entry 9-A was recorded, he was present at PS Timarpur alongwith IO in his room. The DD entry was received at about 2.00 a.m. He did not know whether any departure entry was made by ASI Narender Singh. He alongwith ASI Narender Singh reached at the spot at about 2.30 a.m. He admitted that neither any theft was committed in their presence nor any tempo was found at the spot. He left the spot with rukka for registration of FIR at about 5.00 a.m. It took about 30-45 minutes in registration of FIR. After registration of FIR, he reached at the spot at about 6.00 a.m. He had told the aforesaid facts to the IO State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 8/20 during recording of his statement. (At that stage, witness was confronted with his statement under Section 161 Cr.P.C., which was Mark DX-1, where it was not so recorded). When they reached at the spot, about 15-20 persons were present alongwith Mam Chand. He did not know whether the public persons present at the spot were interrogated by IO or not as he left for PS Timarpur for registration of FIR. He remained in the investigation of that case from the receiving of call till the PC Remand of accused was obtained by IO. Till the time, accused was taken on PC Remand, IO had inquired and interrogated other persons. He denied the suggestion that no theft as alleged had taken place. He admitted that no case property was recovered from the accused till the PC Remand of accused was obtained. He voluntarily stated that few untethered buffaloes were present at the spot. He further denied that accused was falsely implicated in present case in connivance with the complainant as some altercation occurred between complainant and accused. He denied the suggestion that IO had obtained signatures of accused on some blank papers. Intimation of arrest of accused was given to his wife. He did not remember her name. He denied the suggestion that he was deposing falsely.
7. PW-5 Retd. ASI Narender Singh testified that on 17.01.2012, he was posted as ASI at PS Timarpur. He was on emergency duty from 08.00 P.M. to 08.00 A.M. The incident was of about the night of 16.01.2012. At about, 02.30 A.M. on 17.01.2012, he received DD No. 9A already Ex.PW3/A regarding apprehension of one thief. He along with Ct. Kamal Kant reached the spot of incident. There he met complainant Mam Chand and his nephew Umesh. The accused was produced by the complainant and his nephew before him. (At that stage, the witness was asked whether accused was present in the court to which he identified the accused who was present without mask). The complainant told State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 9/20 that about 6-7 persons had stolen their buffaloes in a tempo and they tried to stop them and caught hold of only one of them who was the accused produced by them. Complainant also told that the stealing of cattle was a common incident in their area because of which they had tethered their buffaloes in room in the backyard of the house. They also told that two buffaloes and two calves were taken by the persons along with the accused in the tempo. Other cattle were left untethered. Thereafter, he recorded the statement of complainant which was already Ex.PW1/A bearing his signature at Point B. Thereafter, he prepared the rukka which was already Ex.PW3/C bearing his signature at Point C. He handed over the statement and rukka to Const. Kamal Kant to get the FIR registered at PS Timarpur. Thereafter, he interrogated the accused about his whereabouts, his name, other persons who were involved in theft of the buffaloes and the vehicle number. To which the accused disclosed the name and address of other two persons involved in the theft of buffaloes and name of 2-3 other persons who were involved in commission of theft of buffaloes. The accused also told that his sister who was married at Village Khirva, Near Sardana, Meerut, U.P., there only he met the other persons involved in the theft of buffaloes who asked him to indulge in stealing of cattle as it was a better opportunity of minting good money. Thereafter, Ct. Kamal Kant arrived at the spot along with the tehrir and rukka with a copy of FIR registered which was already Ex.PW3/B. Thereafter, he made arrest of the accused Lakshman and prepared the arrest memo which was already Ex.PW4/A bearing his signature at Point B in the presence of Ct. Kamal Kant. Thereafter, he also conducted personal search of the accused Lakshman and prepared a personal search memo which was already Ex.PW4/B bearing his signature at point B, a body inspection memo of the accused Lakshman was prepared as the accused was beaten up by the public persons present at the State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 10/20 spot. The body search memo was Ex.PW5/A bearing his signature at point A. Disclosure statement of the accused was also recorded in presence of Ct. Kamal Kant which was already Ex.PW/C bearing his signature at point B. Thereafter, he prepared the Site Plan at the instance of complainant Mam Chand which was Ex.PW5/B bearing his signature at Point A. Thereafter, the accused was taken to the Aruna Asif Ali Hospital to get him medically examined and the statement of witnesses were recorded. Thereafter, the accused was produced before ld. MM and PC for two days was obtained on 17.01.2012. Thereafter, PC was again obtained for two days of the accused on 19.01.2012. Thereafter, the accused was forwarded to JC on 21.01.2012. Thereafter, he conducted search of the other persons named by the accused who were involved in stealing of buffaloes on the date of incident. After making sincere efforts for the search of other persons at the named address by the accused, the other persons could not be found. Thereafter, he made an application for issuance of proceeding u/s 82 Cr.P.C. against one Salim and Sarfaraz. The application was exhibited as Ex.PW5/C bearing his signature at point A. Thereafter, he made search for the other alleged accused Salim and Sarfaraz at their addresses, he also recorded the statement of Pradhan of Gram Panchayat, Village Khirva, Jalalpur and one neighbour Babu. The statements were exhibited as Ex.PW5/D and attested by him and Ex.PW5/E attested by him respectively but the alleged accused could not be found. He also got published the proclamation u/s 82 Cr.P.C against the alleged accused Salim and Sarfaraz in the newspaper The Hindu dated 17.11.2012 and Navbharat dated 17.11.2012. The newspaper publication were marked as X and Y respectively. Thereafter, he completed the investigation and filed police report before the Ld. MM.
During cross-examination by the ld. Defence Counsel, he stated that the State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 11/20 spot of incident was about 4-5 Kms from PS Timar Pur where he got the DD No. 9A. He left the PS Timarpur for the spot of the incident after 5-7 minutes of receiving DD No. 9A. He was present in his IO room at the PS when he received the DD. It took him 15-20 minutes to reach the spot of the incident from PS. When he reached the spot he found 8-10 persons were present there. He admitted that it was the month of January and there was a little fog when they reached the spot. He denied the suggestion that visibility was upto one to two meters. He voluntarily stated that the visibility was about 20 yards. It took him about one hour in interrogating and preparing the rukka. He admitted that he enquired from public persons present at address of the spot. It took him about 40-45 minutes in enquiry and recording the statement of the complainant Mam Chand and preparing the rukka. Const. Kamal Kant came back at the spot along with original rukka and copy of FIR about one and a half hours later. During that time of one and a half hours, he remained at the spot. He did not prepare any document during that time. He denied the suggestion that at that time, it was dark and there was no visibility. He voluntarily stated that there was light in the house of the complainant. The distance between the dwelling house of the complainant Mam Chand and Umesh and the room from which the buffaloes were stolen was about 15-20 yards. He denied the suggestion that there was no partition wall between the house and the place where the buffaloes were tethered. He admitted that there was a street between the house of the complainant and the place where the buffaloes were tethered. The street was about 10-12 feet. He admitted that no mark as to any point of light was shown in the Site Plan. He also admitted that he had not shown any point of light in the site plan because there were no point of light present. He did not remember the exact time when the site plan was prepared. There were only 2-3 public persons present at the time when he prepared the site plan. He State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 12/20 voluntarily stated that apart from him, Const. Kamal Kant and the accused Lakshman. He admitted that the site plan was prepared after enquiring from the abovesaid persons present at the spot. He admitted that he had not mentioned the name of person and got their signatures on the site plan. He denied the suggestion that he obtained the signature of the accused on some blank papers and converted the same as the disclosure statement. He also denied that he had recorded the names of other persons who were involved in stealing of buffaloes without the same being disclosed by the accused. He admitted that identification marks of the buffaloes were disclosed by the complainant Mam Chand but not of the calves. He had recorded the same in the statement of Mam Chand. He denied the suggestion that as reported by the complainant Mam Chand and his nephew Umesh, no incident of theft of two buffaloes and two calves had taken place. He denied the suggestion that he had not made any sincere efforts in search of the stolen buffaloes and the calves from the date of incident till the date of filing of chargesheet. He visited the village Khirva, Village Madhayai and other villages in the jurisdiction of PS Sardhana, PS Simbhavli and PS Muradnagar in search of the stolen buffaloes and calves. He recorded the statement of Pradhan of Village Khirva in reference to stolen buffaloes. Again Said He did not record the statement, he only enquired. He denied the suggestion that he did not record any statement of any person while he conducted the search of the stolen buffaloes and calves at the above said places because he did not visit the abovesaid places ever as no incident of stealing of buffaloes and calves had taken place. He admitted that he had not mentioned the abovesaid places and the conduct of search at the abovesaid places for the stolen buffaloes and calves in the entire police report. He denied the suggestion that he had not mentioned about the search conducted at the abovesaid places in the chargesheet because no such incident of theft of State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 13/20 buffaloes and calves had taken place. He denied the suggestion that he had falsely implicated the accused in the present case for theft of buffaloes and calves. When he reached the spot, he found about 4-5 buffaloes were untethered. He admitted that as per report u/s 173 Cr.P.C /chargesheet during the police remand, search of the alleged accused had been made. He denied the suggestion that no search for the stolen buffaloes were made because no buffaloes were stolen and it was a false case. He denied the suggestion that he was deposing falsely. He also denied that he had falsely implicated the accused in the present case at the instance of complainant Mam Chand and his nephew Umesh.
8. The prosecution evidence was closed on 20.09.2021 and the statement of the accused was recorded under Section 313 read with section 281 of Cr.P.C. on 24.09.2021, wherein he pleaded innocence and stated to have been falsely implicated. The accused opted not to lead any evidence in his defence. Final arguments of the case were heard on 26.10.2021.
9. Learned APP for the state submitted that the prosecution has proved the case against the accused beyond reasonable doubt as all the prosecution witnesses especially the eye-witnesses have supported its case and even the documentary evidence placed on record is cogent. He demanded that the accused be convicted for offence u/s 380/34 IPC.
10.Per Contra, learned counsel for the accused submitted that there are severe discrepancies in the prosecution evidence. He claimed that the testimonies of both eye-witnesses are antithetical to each other. He pointed out that despite availability of independent witnesses they were not asked to be part of the State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 14/20 investigation. He adumbrated that there was significant unexplained delay in registration of FIR and the chance of concoction and false implication cannot be ruled out. He stated that the accused has been falsely implicated and the case against him has not been proved beyond doubt, so he be acquitted of the offence u/s 380/34 IPC.
11.I have heard the arguments addressed by the Ld. APP for state and the Ld. Counsel for the accused and carefully perused the documents on record. Before adverting to the appreciation of evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:-
380. Theft in dwelling house, etc.-Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence to successfully bring home the guilt of the accused. Further, it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal. Coming to the matter in hand, to sustain conviction u/s. 380/34 IPC, the prosecution is required to prove the following ingredients:-
(i) That theft was committed in a dwelling house.
(ii) Theft was committed by the accused in collusion with his accomplice.
Upon examination of evidence led at the trial, my observations in the matter are delineated hereinafter.
State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 15/20
12.The first ground of defence taken by the accused is that there is an undue delay in registration of FIR. The learned defence counsel submitted that the incident occurred about 2 a.m but the FIR was lodged at 5:30 a.m. He further pointed out that the PS is hardly at a distance of four to five kilometers from the spot of incident. In the case of Ravinder Kumar and Anr. v. State of Punjab (2001) 7 SCC 690 the Apex Court made the following observation about the delay in lodging FIR;-
The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. Adverting to the issue of delayed registration of FIR, the Supreme Court of State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 16/20 India in the case of Amar Singh v. Balwinder Singh and Ors. (2003) 2 SCC 518 held:-
In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. In this connection it will be useful to take note of the following observation made by this Court in Tara Singh & Ors. v. State of Punjab, AIR 1991 SC 63 :
"The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the Courts should be cautious to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case."
State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 17/20 In the case of Sahebrao & Anr. v. State of Maharashtra (2006) 9 SCC 794 the apex court clarified the legal position on the point:-
The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.
At this juncture, we would like to quote the following passage from State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71, wherein this Court observed: "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. "
Perusal of the initial information received at PS shows that the same in the PS reached at 2:30 a.m which was reduced into writing vide DD No. 9A dated 17.01.2012. The DD entry was marked to ASI Narender Singh for further inquiry in the matter. The IO went to the spot, inquired from the people present there. He recorded statement of the complainant and conducted preliminary questioning from the accused and then sent the rukka to the PS through his subordinate Ct. Kamal Kant and yet the FIR was lodged at 5:30 a.m. Some delay is inherent when all these proceedings were being conducted at the dead of the night and in the absence of street light at the spot. A delay of about an hour or so does not afford opportunity to the complainant for embellishment or concoction especially when the initial information reached the police station within 30 minutes of the occurrence. The delay in lodging the FIR in the matter is insignificant, not inordinate and is not fatal to the case of prosecution as circumstances satisfactorily explain such delay.
State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 18/20
13.Another leg of defence taken by the accused is that despite availability of public persons at the spot, they were not asked to join the investigation of the case and their statements were not recorded by the IO. PW-1, PW-2, PW-4 and PW-5 all unanimously stated that the public persons were present at the spot. PW-1 & PW-2 specifically stated that upon hearing their hue and cry, the neihbours got up and came to the spot. During his cross-examination, the IO clearly stated that he inquired from one or two other persons but they stated nothing much about the case. In the present matter, the non-joining of public witnesses is not fatal to the case of the prosecution as the public persons had not seen the incident of theft of buffaloes and calves. Even otherwise, the apex court in the case of Ambika Prasad v. State AIR 2000 (SC) 718 observed that public are generally reluctant to come forward to depose in court and it is not correct to reject a true and acceptable case only for the want of corroboration by independent witnesses. Also in Manish Dixit & Ors. v. State of Rajasthan (2001) 1 SCC 596 the highest court of land was of the opinion that City people are quite conscious of consequences and they would normally be wary to signify such witnessing. The case of the prosecution is otherwise trustworthy and the same cannot be discredited merely because no independent witness could be examined by the prosecution. The defence of non-examination of public witnesses does not hold water.
14.The Ld. Defence Counsel strenuously argued that there are contradictions in the version of events as stated by Umesh Chand and his brother Mam Chand. The entire evidence of both the witnesses is perused and it is observed that there are some inconsistencies in the statements of Mam Chand and Umesh regarding the location of bara where animals were tethered, the place where State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 19/20 both of them slept and about the time of presence of neighbours but largely the deposition of both the witnesses is similar on material aspects which go to the root of the case. As regards the location of bara or cattle pound being told differently by both witnesses, it seems that both were telling the location of bara from their respective houses as they lived in separate houses at that time. In Jugendra Singh v. State of U.P. CRIMINAL APPEAL NO. 82 OF 2008 decided on 29 May, 2012 the topmost court of the land stated the following about the minor discrepancies in the case of prosecution;-
36. In Appabhai and another v. State of Gujarat[28], this Court has ruled thus:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. 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 perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
The discrepancies in the versions of witnesses about the presence of slight fog or not or the range of visibility also do not impair the case of the prosecution
15.Another ground of defence taken by the accused is that he was little drunk on that day and he was traveling in one tempo. He was apprehended by some persons and implicated in the present case. This story of the accused does not inspire confidence simply because he could not explain the reason for being in Delhi though he belonged to Hapur, U.P. It is not his case that he had come to State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur 20/20 Delhi to visit some relative or in search of work. Moreover, he never entered the witness box to testify in support of his version of events. The MLC of accused available in police file has been perused and the same too does not advance the defence of accused. No motive could be attributed by the accused for false implication.
16.To conclude, the accused was caught in the Act on the spot, he has no explanation for his presence at the spot. It is a little far fetched to argue that the complainant concocted a false story. No motive for falsely implicating the accused is attributable to the complainant. The person who apprehended the accused clearly identifying him during trial. The evidence is sufficient to record a finding of guilt. Resultantly, the accused Lakshman is convicted for the offence u/s 380/34 IPC as the case against him is proved beyond reasonable doubt.
Announced in the open court on 2nd November, 2021 (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 20 pages and each and every page of this judgment is signed by me.
State vs. Lakshman & Ors. FIR No.12/12 PS Timarpur