Delhi District Court
State vs . Nikhil @ Bharat on 20 August, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. NIKHIL @ BHARAT
FIR No. 55/08
PS: MOTI NAGAR
U/S: 379/411/34 IPC AND U/S 174A IPC
JUDGMENT
Sr. no. of the case : 245/2/11
Case ID no. : 63238/16
Date of commission of offence : 17.02.2008
Date of institution of the case : 26.03.2008
Name of the complainant : Sh. Amit Chopra
Name of accused and address : Nikhil @ Bharat s/o Sh.
Vinod Kumar r/o 9712, Gali
no. 8, Multani Danda, Pahar
Ganj, Delhi.
Offence complained of or proved : U/s 379/411/34 IPC and u/s
174A IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date reserved for judgment : 10.08.2016
Date of judgment : 20.08.2016
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS:
1. Brief facts of the case are that on 17.02.2008 complainant Sh. Amit Chopra came to Fun Cinema, Moti Nagar, for purchasing the ticket of the night show of movie. At about 06.00 PM complainant was standing in the queue for purchasing the ticket, suddenly accused Nikhil @ Bharat, in order to pick the pocket of the complainant put his hand over FIR No. 55/08, PS Moti Nagar Page 1/9 right front side pocket of the pants of the complainant. The said pocket was containing mobile phone make Nokia and one currency note of Rs.
1,000/-. The accused managed to commit theft of Rs. 1,000/- only. The accused was apprehended at the spot, though, his accomplice managed to flee away with the currency note of Rs. 1,000/-. Accordingly, after the investigation police filed the present charge sheet against the accused.
2. Charge sheet was filed against the accused in the Court.
Documents were supplied to the accused and thereafter charge under Section 379/411/34 IPC was framed against him vide order dated 18.08.2011 to which he pleaded not guilty and claimed trial. During the trial, accused deliberately stopped appearing before the Court. Accordingly, process U/s 82 Cr.P.C was issued against him and consequently he was declared proclaimed offender vide order dated 22.12.2009. Subsequently, he was arrested in some other matter and he again brought again before the court from judicial custody on 07.07.2011. On filing of supplementary charge sheet for commision of offence punishable U/s 174-A IPC, charges were framed against the accused for commission of offence punishable u/s 174A IPC to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses:-
4. PW1 Sh. Amit Chopra deposed that in the year 2008 he used to work with Multiplex PVR Ghaziabad. On 17.02.2008, it was holiday being Sunday. It is stated that on that day he came to Fun Cinema Moti Nagar for purchasing ticket of night show of movie Jodha Akbar. At about 06.00 PM when he was standing in the queue for purchasing the ticket, suddenly accused in order to pick the pocket of the complainant put his hand over right front side pocket of the pants of the complainant.
The said pocket was containing a mobile phone make Nokia and a currency note of Rs. 1,000/-. It is stated that upon noticing accused FIR No. 55/08, PS Moti Nagar Page 2/9 picking his pocket he immediately reached and tried to apprehend the accused. It is stated that the accused managed to commit theft of Rs. 1,000/- whereas the mobile phone remained in his pocket. It is stated that he apprehended the accused, however, in the process accused passed on the stolen currency note of Rs. 1,000/- to one of his accomplice standing near by who managed to escape along with his stolen currency note. It is stated that he raised hue and cry, on that police official on duty came there and took them to the police station where he handed over the accused and IO recorded his statement Ex. PW1/A. It is stated that IO arrested the accused vide arrest memo Ex. PW1/B and conducted the personal search of the accused vide memo Ex. PW1/C. In his cross examination, it is stated by this witness that four persons were standing ahead of him and accused with his accomplice was standing behind him in the queue. It is stated that none of the public persons standing there help the complainant. The complainant denied the suggestion that accused had been falsely implicated in this case. He further denied the suggestion that in fact the accused was chasing the real culprit and he was apprehended merely on suspicion in the matter.
5. PW2 HC Pradeep was the Duty Officer on 17.02.2008, who exhibited on record copy of FIR as Ex.PW2/A and endorsement on the rukka as Ex.PW2/B.
6. PW-4 ASI Buta Singh deposed that on 17.02.2008 he was on patrolling duty alongwith Ct. Jai Bhagwan and while patrolling in the area of Moti Nagar at about 06:05 PM they reached at in-gate of Fun Cinema, Sudama Puri, Delhi, where they noticed that a lot of crowd had gathered at the ticket counter of Fun Cinema and a lot of hue and cry was being raised. It is stated that they proceeded towards the ticket counter of Fun Cinema, where one person met them, who disclosed his name as Amit Chopra and he handed over to them one person stating that the said person had picked his pocket and the name of pick-pocket after interrogation was disclosed as Nikhil @ Bharat S/o Vinod R/o FIR No. 55/08, PS Moti Nagar Page 3/9 Raghubir Nagar, Delhi. It is stated that he recorded the statement of complainant Amit Chopra which is already Ex. PW1/A and prepared a tehrir, which was handed over to Ct. Jai Bhagwan for registration of FIR. It is stated that Ct. Jai Bhagwan went to the police station, got the case registered and returned at the spot alongwith copy of FIR and original rukka and handed over the same to him. It is stated that the accused was arrested. Arrest memo, personal search memo and disclosure statement of accused in this regard are already Ex.PW1/B, PW1/C and PW3/A respectively. It is stated that he prepared the site plan at the spot at the instance of the complainant Amit Chopra which is Ex. PW4/A. Thereafter, accused was taken on one day PC Remand and this witness tried to search the accomplice of the accused but said accomplice could not be found. After completion of the investigation he prepared the charge sheet and filed accordingly. In his cross examination, he could not tell the departure entry whereby he was on patrolling. It is stated by him that he asked 4-5 public persons to join the proceedings but none agreed.
7. PW-3 HC Jai Bhagwan deposed on the same lines as that of PW-4 ASI Buta Singh. In his cross examination, he could not tell the DD entry whereby he was on patrolling duty. He could not tell how many entry and exit gates were there in the Fun Cinema. It is stated by him that nothing was recovered in their presence from the accused.
8. PW-5 HC Ashok Kumar deposed that on 07.07.2011, he appeared before Ld. Predecessor of this court, on that day accused was produced from Tihar Jail on production warrant being in judicial custody in some other matter. This witness identified the accused before the court who was then re-arrested in the present matter and sent to judicial custody. It is stated by him on the basis of the fact was earlier declared proclaimed offender he prepared supplementary charge sheet u/s 174A IPC and filed before the court.
9. PW-6 Sh. Ashish Chopra deposed that on 04.08.2011, he was posted as Junior Judicial Assistant (Ahlmad) in the court of Ld. MM Sh. Sunil Kumar Sharma. On that day, a supplementary charge sheet FIR No. 55/08, PS Moti Nagar Page 4/9 against the accused namely Nikhil @ Bharat was filed u/s 174A IPC in the case FIR no. 55/08 u/s 379/411/34 IPC.
10. No other witness was left to be examined hence, PE was closed.
THE DEFENCE :
11. Statement of accused U/s 313 Cr.P.C recorded, wherein he pleaded innocence and stated that he has been falsely implicated in the present case. It is stated by him that at the time when he was declared proclaimed offender he was in judicial custody in some other case. Accused opted not to lead defence evidence.
THE ARGUMENTS:
12. Ld. APP for state has argued that witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offences under section U/s 379/411 IPC and u/s 174A IPC are proved beyond reasonable doubt against the accused.
13. On the other hand, Ld. defence counsel has argued that there is no legally sustainable evidence against the accused. It is argued that case of prosecution is false and that is why no independent public person has been joined in investigation. It is aruged that complainant has stated that IO had taken him as well to the accused to the police station on the other hand it is stated by the police officials that entire proceedings were done at the spot.
THE FINDINGS:
Offence U/s 379/411/34 IPC and u/s 174A IPC:
14. Arguments adduced by Ld. APP for State and Ld. defence counsel for the accused has been heard. Evidences and documents on record perused carefully.
15. In the present case, there are ample evidence against accused.
FIR No. 55/08, PS Moti Nagar Page 5/9 PW1 Sh. Amit Chopra is the material witness of the prosecution. He has correctly identified the accused. He has vividly described the manner of offence and act of the accused. His testimony has remained unrebutted even during cross-examination. He has categorically stated that accused put his hand on his pocket and took out a currency note of Rs. 1,000/- from his pocket though he managed to save his mobile phone which was also in the same pocket. It is stated by the witness that he managed to apprehend the present accused on the spot, however, his accomplice to whom accused passed on the currency note managed to flee away from the spot. It is categorically stated by him that the accused was the person who had taken out a currency note of Rs. 1,000/- from his pocket.
16. Thus, from the testimony of PW1, it is clear that accused had taken out a sum of Rs. 1,000/- from the pocket of the complainant. The testimony of PW-1 found support from the testimony of PW-3 HC Jai Bhagwan and PW-4 ASI Buta Singh, who have stated that they were on patrolling duty and on hearing the hue and cry raised by the complainant they reached the spot of incident where they found the complainant who had apprehended the accused.
17. There are categorical statement made by PW1 Amit Chopra implicating the accused in present case. There is no reason or motive for PW-1 to falsely implicate the accused in the present case. The testimony of PW1 remain unrebutted on all the material aspects. His testimony is natural and consistent and to the point. Further, nothing material could be extracted by the defence counsel even in his cross- examination.
18. The argument that no public person who were present at the spot of incident were joined in the investigation at the time of apprehension of the accused is not material. As it is settled law that conviction can be based on the testimony of a single witness or even of police witnesses and it is not necessary that in each and every case, public witnesses must be joined. It is a known fact that in a city like Delhi generally the FIR No. 55/08, PS Moti Nagar Page 6/9 public persons do not come forward to be a part of any criminal investigation. In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
19. Hence, adverse inference cannot be drawn on account of failure of the police officials to join independent public persons apart from complainant PW1 at the time of apprehension of the accused. The failure on the part of the IO to join the public persons in the investigation is not fatal to the case of the prosecution as PW-1 has fully supported the case of the prosecution. The fact that IO failed to prove the DD entry whereby he was on patrolling or the fact that the written proceedings were not conducted by the IO at the spot is a procedural lapse which cannot throw away the entire case of the prosecution. It is established principle of law that the complainant/victim shall not suffer due to the conduct of the IO and the accused shall not be allowed to take benefit of the faulty investigation of the IO. It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
FIR No. 55/08, PS Moti Nagar Page 7/9 "The settle position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
20. There are categorical statement made by PW1 Amit Chopra implicating the accused in present case. There is no reason or motive for PW-1 to falsely implicate the accused in the present case. The testimony of PW1 remain unrebutted on all the material aspects. His testimony is natural and consistent and to the point. Further, nothing material could be extracted by the defence counsel even in his cross- examination.
21. In the present case testimony of PW1 has established the guilt of the accused beyond any reasonable doubt. This Court found the testimony of PW1 absolutely credit worthy and truthful. Hence, on the basis of above stated evidence, in the considered opinion of this Court the prosecution has been able to prove on record beyond reasonable doubt that accused had committed theft of a currency note of Rs. 1,000/- from the pocket of the complainant. Hence, accused Nikhil @ Bharat is liable to be convicted for commission of offence punishable under section 379 IPC. In his testimony before court complainant has stated that though accused attempted to steal even the mobile phone of the complainant but he could not succeed in the same as complainant fastly reacted and saved his mobile phone. However, still accused has committed attempt to steal mobile phone of the complainant, hence, he is convicted for commission of offence u/s 379/511 IPC for attempting to commit the theft of the mobile phone. Since, accused has been convicted for commission of offence u/s 379 IPC (in respect of currency note of Rs.1,000/-) and u/s 379/511 IPC (in respect of mobile phone), hence, charge against him for offence U/s 411 IPC will not stand.
FIR No. 55/08, PS Moti Nagar Page 8/9
22. In the present case due to the non appearance of the accused process u/s 82 Cr.P.C was issued against him on 07.10.2009, which was duly executed on 18.11.2009 giving clear 30 days time to the accused to appear before the court as the date of appearance before the court was 22.12.2009. Vide order dated 22.12.2009, the accused was declared proclaimed offender by the court on the basis of report of process server. The statement of the court declaring the accused a proclaimed offender is a conclusive proof of the fact that the proclamation was duly published. Though, accused had taken the defence that he was in judicial custody in some other case at the time when he was declared proclaimed offender, however, he has not brought any evidence on record to show that from 18.11.2009 till 22.12.2009 or on 22.12.2009 he was in judicial custody in any other case. Thus, all the ingredients of offence punishable u/s 174A IPC have been duly proved in the present matter, hence, accused is convicted for commission of offence u/s 174A IPC as well.
23. In view of the above stated discussion the undersigned is of the considered opinion that all the ingredients of Section 379 IPC, 379/511 IPC and u/s 174A IPC are satisfied. As such accused Nikhil @ Bharat S/o Sh. Vinod Kumar is convicted for the offence Under Section 379 IPC, 379/511 IPC and u/s 174A IPC.
24. Copy of the judgment be supplied to the accused free of cost.
ANNOUNCED IN THE OPEN GAJENDER SINGH NAGAR) COURT ON 20.08.2016 MM-04 (WEST)/DELHI
Containing 9 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR)
MM-04 (WEST)/DELHI
FIR No. 55/08, PS Moti Nagar Page 9/9