Delhi District Court
State vs . Sukhbir Singh on 7 May, 2016
IN THE COURT OF HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 06 (NDD),
PATIALA HOUSE COURTS, NEW DELHI.
FIR No.79/2003
PS - Parliament Street
State Vs. Sukhbir Singh
Unique Case ID No.02403R0108422003
J U D G M E N T
(a) Sr. No. of the case 273/02/12
(b) Date of offence(s) 05.04.2003
(c) Complainant SI Dharam Chand, Special Staff, New Delhi.
(d) Accused Sukhbir Singh S/o Sh. Hari Ram R/o Village Aghapur,
Sector - 211, Noida, Uttar Pradesh.
(e) Offence(s) Under Section 261, 262 and 409 of The Indian Penal Code,
1860.
(f) Plea of accused Pleaded not guilty
(g) Final Order Convicted
(h) Date of institution 03.05.2003
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 07.05.2016
1. In the present case, accused has been charge sheeted for committing offences punishable under Section 261, 262 and 409 of The Indian Penal Code, 1860. The allegations against the accused are that on or before 05.04.2003, accused fraudulently or with intention to cause loss to the Government, removed stamps issued by Government for purpose of revenue from documents/letters for which such stamps have been used so that the said stamps can be used for different documents, he FIR No.79/2003 Page No.1 of 26 also removed seals from many of the stamps fraudulently or with intention to cause loss to the Government and further being entrusted with Government stamps on posts as a public servant dishonestly misappropriated or converted them to his own use. According to prosecution, accused has committed offences punishable under Section 261, 262 and 409 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge under Section 261, 262 and 409 of The Indian Penal Code, 1860 was framed against the accused vide order dated 18.04.2006 to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Main Witness(es)
3. In order to prove its case, prosecution has examined nine witnesses. PW4 SI Dharam Chand, PW5 ASI Niranjan Singh and PW6 HC Mukesh Kumar in gist have deposed that on 05.04.2003, they were posted in Special Staff, New Delhi, PW4 received secret information that one Sukhbir Singh posted in Jamia Milia Post Office removes postal stamps from posts and dak and steal them. PW4 disclosed information to his senior officials and on their instruction, PW4 prepared raiding party consisting of himself, PW5, PW6 and secret informer. At about 06:45 pm, they reached near bus stand, Gurudwara Bangla Sahib where PW4 took personal search of PW6 and PW5 vide Ex.PW4/A and handed over one currency note of Rs.500/ after signing the same to PW6 to struck deal with Sukhbir Singh. Memo of delivery of FIR No.79/2003 Page No.2 of 26 note Ex.PW4/B was prepared. PW5 was made shadow witness and was instructed to give signal after fixation of deal with Sukhbir Singh. At about 07:00 pm, informer told PW5 that person coming from side of Gold Dak Khana wearing blue shirt and holding plastic bag in his hand is the culprit. Said person came and stood at said bus stand. PW6 struck deal, handed over Rs.500/ currency note and accused handed over 100 postal stamps of Rs.15/ each after deal with him. PW5 then gave predetermined signal to PW6 and accused was caught redhanded by PW4 and PW6. PW4 then conducted search of accused and recovered currency note of Rs.500/ from him which was handed over to PW6 vide Ex.PW4/A. PW4 seized it vide Ex.PW4/C, prepared pullanda and then sealed it with seal of 'MSS'. PW6 then handed over one white colour envelope to PW4 and told him that he had purchased the same from Sukhbir Singh with the signed currency note of Rs.500/. PW4 checked the envelope and found 100 stamps of Rs.15/ each bearing photograph of Indian Railway and it appeared that stamps of post office have been erased from said tickets. PW4 prepared pullanda and seized them vide Ex.PW4/D. One plastic bag was also recovered from accused, same was checked by PW4 and he found 538 small envelops having tickets of Rs.10/ to Rs.15/ affixed on them, having addresses on which said envelops were sent and further 220 postal stamps of Rs.15/ were also recovered from the same. PW4 then prepared pullanda of the same, seized them vide Ex.PW4/E and sealed it with the seal of 'MSS'. PW4 then prepared Rukka Ex.PW6/F, handed over to PW6, PW6 went to PS and after getting registered FIR, PW6 came back at the spot along with IO SI Ravinder Malik. PW4 then handed over accused, prepared documents and FIR No.79/2003 Page No.3 of 26 pullandas to IO SI Ravinder Malik. IO arrested accused vide Ex.PW4/G and searched him Ex.PW4/H. IO recorded their statements. PW5 further deposed that pointing out memo Ex.PW5/A of house of accused was also prepared, some articles were seized from his house, but, he cannot give their description due to lapse of time. PW6 has further deposed that on 07.04.2003, he alongwith IO SI Dharam Chand, HC Niranjan and accused went to house of the accused where accused got recovered letters corners of which were torn, from whom stamps were removed and same were seized vide Ex.PW5/A. PW4 and PW6 correctly identified accused and case property Ex.P1 to Ex.P39 in the Court and PW6 further correctly identified accused and case property PA1 to PA280, PB1 to PB1274 in his evidence. PW4, PW5 and PW6 were examined, crossexamined by accused and were discharged.
4. PW8 SI Ravinder Malik in gist has deposed that on 05.04.2003, further investigation was marked to him. He alongwith PW5 went to the spot at DTC Bus Stand, Ashoka Road, Bangla Sahib where he met with complainant SI Dharam Chand and HC Niranjan. Accused was also present at the spot. He prepared site plan Ex.PW8/A at instance of SI Dharam Chand. SI Dharam Chand handed over to him accused and three sealed pullandas sealed with the seal of 'MSS' and memos Ex.PW5/A, Ex.PW4/B, Ex.PW4/C, Ex.PW4/D and Ex.PW6/E. He interrogated and arrested accused vide Ex.PW4/B, searched him vide Ex.PW4/H and further recorded his disclosure statement. Accused was produced before Court. He obtained police custody of accused and then at instance of accused, he alongwith HC Niranjan, Ct. Mukesh and accused went to the house of the accused at Village Aghapur, Sector - FIR No.79/2003 Page No.4 of 26 45, Noida, Uttar Pradesh. On pointing out by accused, one bag of blue colour on which Bhartiya Dak and Indian Post was printed alongwith Airmail envelops (990 without tickets and 137 having stamps of Rs.15/ each), 12 post cards, 14 inland letters without tickets, 37 yellow colour envelops (having tickets of Rs.15/ each), two envelops of khakhi colour (having tickets of Rs.24/), three pink colour envelops (having stamps of Rs.4/), 70 envelops, post office stationary (five booklets) and two blue colour postal bags were recovered and same were seized by Ex.PW5/A. He also moved an application for opening the case property vide Ex.PW8/C before the Court which was allowed, case property was desealed and five stamps were taken out as sample and sealed with seal of Court. He sent samples stamps to Security Press, Nasik which reported that they were not issued from Security Press, Nasik. He then send them to Kolkata Press, Kanpur which reported vide Ex.PW8/E that sample stamps were genuine. He recorded statements of witnesses. He correctly identified accused in the Court. He correctly identified case property Ex.PB1 to Ex.PB1128, Ex.PB1129 to Ex.PB1140, Ex.PB1141 to Ex.PB1154, Ex.PB1155 to Ex.PB1191, Ex.PB1192 to Ex.PB1193, Ex.PB1194 to Ex.PB1196, Ex.PB1197 to Ex.PB1266, Ex.PB1267 to Ex.PB1271, Ex.PB1272 to Ex.PB1273 and Ex.PB1174 in his evidence and further deposed that same were recovered at the instance of accused from his house. PW8 was examined, crossexamined by accused and was discharged.
5. PW1 Dr. M. Aslam Parvaiz in gist has deposed that he is editor of monthly magazine Urdu Science since 1994. He used to send copies of magazine in envelops to subscribers every month on which he use to affix stamps of Rs.24/. On FIR No.79/2003 Page No.5 of 26 envelops matter as UPC, Urdu Science, Monthly 605/12, Jakir Nagar, Delhi used to be printed. In month of April, 2003, he sent 108 magazines to his subscribers in envelops having stamp of Rs.24/ which he delivered at Post Office of Jamia Nagar. He correctly identified case property envelops Ex.P1 to Ex.P35 as being sent by him. PW1 was examined, not crossexamined by accused despite opportunity given and was discharged.
6. PW2 Surender Shah in gist has deposed that in April, 2003, he was posted as Post Master at Jamia Nagar Post Office and 38 employees used to work under him. Accused Sukhbir Singh used to pack dak. Accused was not regular in his duties. Accused was arrested in this matter. Once, he was called at Patiala House Courts for identification of postal stamps on which he stated that he was not sure as to whether stamps were genuine or not, but they appeared to be genuine Government postal stamps. He identified postal stamps Ex.PA1 to Ex.PA200 in his evidence. PW2 was examined, crossexamined by Ld. APP for the State, not crossexamined by accused despite opportunity given and was discharged.
Formal Witness(es)
7. PW7 HC Sunder Singh has proved and exhibited Rukka Ex.PW4/F, formal FIR Ex.PW6/A and endorsement on Rukka Ex.PW7/A in his evidence. PW7 was examined, not crossexamined by accused despite opportunity given and was discharged.
8. PW9 Sh. Sanjay Jain, the then Ld. M.M. in gist has deposed that on 30.04.2003, an application for opening seal of case property was assigned to him FIR No.79/2003 Page No.6 of 26 which he allowed. Two pullandas were produced before him by IO having seal of 'MSS'. One sealed pullanda was of white colour and other one was cloth pullanda. They were opened and three stamps of Rs.15/ each having picture of Indian Railway on them were taken out by IO from white pullanda. Remaining stamps of same pullanda were put into the same pullanda, was sealed by seal of Court and was handed over back to IO. Cloth pullanda was opened, one envelope containing 120 stamps was taken out and two stamps were taken out from the same of Rs.15/ each having picture of Indian Railway. Remaining stamps were put in same envelop and then in same pullanda, pullanda was sealed with seal of Court and then was handed over back to IO. Pullanda of samples was also prepared and was sealed with seal of Court and was handed over to IO. His report regarding same is Ex.PW9/A. IO also move an application for copies of impression of his seal which was allowed vide Ex.PW9/B. PW9 was examined, not crossexamined by accused despite opportunity given and was discharged.
9. PW3 Shylamma M., Office Asstant, Don Bosco Provincial House, Jamia Nagar, Okhla, New Delhi has deposed that in the year 2003, she was working as Office Assistant in abovementioned office, however, she does not remember any facts of this case. PW3 was examined, crossexamined by Ld. APP for the State, not crossexamined by accused despite opportunity given and was discharged.
10. On 10.10.2014, further prosecution evidence was closed. STATEMENT OF ACCUSED FIR No.79/2003 Page No.7 of 26
11. After closure of prosecution evidence, statement of accused was recorded on 01.05.2015 under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to him. Accused denied all the allegations, stated he is innocent, has been falsely implicated in this case at instance of one Anil who used to bring dak to post office (from different bags). Accused opted to lead evidence in his defence.
DEFENCE EVIDENCE
12. DW1 Chander Bhan in gist has deposed that he is working as Post Master in P & T, Department since year 1996. Accused Sukhbir Singh was working with him at the time of incident in Jamia Nagar Post Office. 4 - 5 persons used to do work of packaging and stamping under the supervision of Head Clerk of Post Office. 15 days prior to incident in question, some quarrel took place between the accused and one outsider namely Anil Kumar who used to bring dak to the post office 3 - 4 times in a week. Anil Kumar verbally abused the accused and also threatened the accused of beatings outside the post office. Anil Kumar had some links with police officials and at his instance, accused was arrested near Julena Village, Jamia Nagar. There have never been any departmental complaint against the accused and he is not involved in any case of theft or fraud or misappropriation. DW1 was examined, crossexamined by Ld. APP for the State and was discharged.
13. On 11.09.2015, defence evidence was closed by accused and matter was fixed for final arguments.
FIR No.79/2003 Page No.8 of 26
14. Final arguments from both sides heard. Records perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS/FINDINGS 15.1(a) First and major contention which has been raised by the defence is that no public witness was joined in the investigation of the present matter at the time of alleged apprehension of the accused at Bus Stand, Ashram Road, Near Gurudwara Bangla Sahib and further no public witnesses/persons of the locality/any official of local Police Station was joined in the investigation of the present matter at the time of alleged recovery of the case property from the house of the accused, therefore, case of the prosecution is not reliable and should be thrown away on this account alone. 15.1(b) On the other hand it is the contention of the prosecution that the PW4 made efforts to join public witnesses in investigation, but in vain and no cross examination of PW8 was done regarding nonjoining of public witnesses and had he been crossexamined on said aspect, he would have disclosed the reason of non joining of public witnesses at the time of recovery from house of accused. 15.2 Submissions of both sides considered.
In the judgment of "Ajmer Singh Vs. State of Haryana"2010 AIR SCW 1494, Hon'ble Supreme Court of India has held that : "We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in all circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated."
In the judgment of "Karamjit Singh Vs. State (Delhi Administration)"
AIR 2003 Supreme Court 1311, Hon'ble Supreme Court of India has held that : FIR No.79/2003 Page No.9 of 26 "The testimony of 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 and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."
In the judgment of "State of U.P. Vs. Anil Singh" AIR 1988, Hon'ble Supreme Court of India has held that : "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version."
In the judgment of "Govindaraju @ Govinda Vs. State by Sriramapuram P. S. & Anr." AIR 2012 SC 1292, the Hon'ble Supreme Court of India has held that : "16. This Court in the case of Girja Prasad (Supra)(AIR 2007 SC 3106) while particularly referring to the evidence of a police officer, said that it is not the law that 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 applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."
In the judgment of "Jarnail Singh Vs. State of Punjab", 2011 Cr. L. J. 1738, Hon'ble Supreme Court of India has held that : "The reluctance on the part of villagers is neither strange nor unbelievable. Generally people belonging to the small village would not unnecessarily want to create bad relations or enmity."
FIR No.79/2003 Page No.10 of 26
In the judgment of "Appa Vs. State of Gujarat", AIR 1988 SC 698, it has been held that : "Experience reminds us that civilized people are generally inscusitive when crime is committed in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate, but it is everywhere whether in village life or town or city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and the search for the nugget of truth with due regard to probability, if any suggested by the accused." 15.3 In view of above judgments, it is clear that the joining of public witnesses is not indispensable preposition and where public witnesses are not available or ready to join investigation, the prosecution case cannot be thrown away on the mere ground that public witnesses were not joined in investigation. The PW4 has deposed in his crossexamination that he asked public persons to join the investigation/raiding party, but they did not agree for the same. The public in general is reluctant to come forward to depose before the Court and have indifferent attitude in the investigation of crimes. Courts cannot ignore ground realities while appreciating evidence. In the present day world, people avoid to become a witness to a crime as they consider it as civil dispute between two sides. This apathy of the public is a great hurdle in the administration of criminal justice. The reasons for such apathy of the public are well known. No one wants to invite the enmity of the accused person(s) because still no effective mechanism exists to ensure safety of witnesses of a crime. As far as nonjoining of public witnesses at the time of recovery from house of the accused is concerned, PW6 has deposed that the neighbourers of accused were requested to join investigation, but, no one was ready to join FIR No.79/2003 Page No.11 of 26 investigation. As has been discussed above, no one wants to invite enmity and to become witness in investigation. As far as nonjoining of police officials of local police station is concerned, no crossexamination of PW8 was done on said issue by defence. Had he been crossexamined on said aspect, he would have told how and in what circumstances, the recovery was affected and as to why officials from local police were not joined in investigation at the time of recovery. There could be number of reasons for the same and possibility of destruction of material may be the prime reason. No justifiable reason has been put forward qua false implication. The reason/explanation given by defence as to false implication at behest of one Anil Kumar is not convincing. The same also appears to be an afterthought as no such suggestion was given to any of the prosecution witnesses during their examination. Moreover, the type of case property which has been recovered i.e. letters/dak posted by different institutions/individuals to different people and that too in such a large quantity is almost impossible to be planted on any person. In these circumstances, in the opinion of this Court, there is no reason to disbelieve the evidence of the prosecution witnesses. In view of the same and keeping in mind the law laid down by Hon'ble Supreme Court of India in abovesaid judgments, the submission of the defence that the evidence of prosecution witnesses is not reliable and be discarded for being not supported by any public witness, is hereby rejected. 16.1(a) Another major contention which has been raised by the defence is that PW2 and PW3 have not supported the case of the prosecution, were declared hostile, were crossexamined by Ld. APP for the State, therefore, their evidence cannot be FIR No.79/2003 Page No.12 of 26 read against the accused being unreliable and further therefore, accused could not be related to the stamps allegedly recovered and hence, should be acquitted. 16.1(b) On the other hand, it is the contention of the prosecution that PW2 has supported the case of the prosecution to the extent that accused used to work in their Post Office as postman and packer, used to collect letters/dak from 12 post boxes of Jamia Nagar, used to stamp them and then used to pack them. It is further contention of the prosecution that deposition of PW2 therefore can be used against the accused to the extent, he has supported the prosecution.
16.2 Submissions of both sides considered.
In the case of "Sat Paul Vs. Delhi Administration" AIR 1976 SC 294, Hon'ble Supreme Court of India has held as follows : "When a witness is crossexamined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case, whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited, or can still be believed as regards a part of his testimony. If a Judge finds that credit of the witness has not been completely shaken in the process, he may, after reading and considering the evidence of the witness, as a whole, with due caution and case, accept, in the light of other evidence on record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness stands squarely and totally discredited, the Judge should, as a matter of prudence discard evidence in toto."
In the case of "Koli Lakhmanbhai Chanabhai Vs. State of Gujrat"
AIR 2000 SC 210, Hon'ble Supreme Court of India has held as follows : "It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence."
The double bench of Hon'ble High Court of Delhi lately in matter of "Javed Ali Vs. State" Crl. A. 664/2014 decided on 25.05.2015 has followed the law FIR No.79/2003 Page No.13 of 26 laid down by Hon'ble Supreme Court of India in matter of "Sat Paul Vs. Delhi Administration" AIR 1976 SC 294.
16.3 In view of the abovesaid judgments of "Sat Paul Vs. Delhi Administration" and "Koli Lakhmanbhai Chanabhai Vs. State of Gujrat", the deposition of witness even who has been declared hostile, crossexamined and contradicted with the leave of the Court cannot as a matter of law be treated as washed off the record altogether and it is for the Court to consider in each case whether said witness thoroughly stands discredited or can still be believed as regards a part of testimony. If a judge finds that the credit of the witness has not been completely shaken, he may accept that part of the testimony of witness which he finds to be credit worthy and act upon it in light of other evidence on record. PW2 has supported the case of the prosecution to the extent that the present accused used to work under him in his post office at Jamia Nagar at relevant point of time. He has also deposed that he used to do work of packer and he also used to bring letters/dak from 12 letter boxes of area of Jamia Nagar to the post office, used to put stamp of post office on them and to pack the said dak. He also deposed that he was not regular in attending his duties. He also identified case property Ex.PA1 to Ex.PA200 in his evidence. The said deposition of PW2 has not been controverted by the defence as it chose not to crossexamine him on said deposition. Though, he denied to have made statement to the police that accused used to consume alcohol, used to steal costly postal stamps from envelops, used to not send them to their genuine destinations, FIR No.79/2003 Page No.14 of 26 defamed their post office and further every member of post office was aware of his deeds, but considering the overall deposition of PW2, in the opinion of this Court, he is not totally unworthy of credit and can be believed as to part of his testimony, he has supported the case of prosecution, if he stands corroborated by other witnesses on record. PW1 has deposed that he used to send magazines in envelops to their subscribers every month on which he used to affix tickets of Rs.24/ each on said envelops and further he send 108 said magazines to his subscribers in month of April, 2003. He also deposed that he posted them at Jamia Nagar Post Office. He also deposed that he can identify them, if shown to him and has further identified 30 envelops Ex.P1 to Ex.P35 which he has posted at the post office and which have been recovered from the possession of accused from his house. The said deposition of PW1 is not controverted by defence as it chose not to crossexamine him and it corresponds and corroborates the testimony of PW2. In view of the same, contention of the defence that statement of PW2 should be treated as nonest on record is hereby rejected. So in the given circumstances, this Court is of the opinion that the evidence of PW2 does not stands completely washed off/discredited, but, is liable to be accepted as to the fact that accused was posted at Jamia Nagar Post Office at relevant point of time, used to collect posts/dak from 12 post boxes of area, used to bring them at post office, used to stamp them and pack them, therefore, the contention of Ld. Counsel for the accused that evidence of PW2 be discarded in toto and accused should be acquitted in this matter is hereby rejected.
17.1(a) Another contention which has been raised by the defence is that there FIR No.79/2003 Page No.15 of 26 are number of contradictions between statements of various prosecution witnesses in this matter qua the alleged recovery from the house of accused. It is pointed out by the defence that PW6 has deposed that they went to house of the accused on 07.04.2003 and recovery was affected vide Ex.PW5/A. He has deposed that on said day, he alongwith accused, PW4 and PW5 went to the house of accused at his instance. It is further pointed out by defence that PW8 has deposed that he alongwith accused, PW5 and PW6 went to the house of accused where recovery was affected vide Ex.PW5/A. It is also pointed out by the defence that PW5 has deposed that recovery was affected from house of the accused vide Ex.PW5/A, but, he cannot give its description due to lapse of time. It is the contention of the defence that in given circumstances where there are number of contradictions between the statements of various witnesses and also there are material omissions in such statements qua recovery being affected from the house of accused, therefore, PW4, PW5, PW6 and PW8 are not reliable and their evidence should be rejected and accused should be acquitted in this matter.
17.1(b) On the other hand, it is contention of prosecution that contradictions pointed out by defence are bound to happen due to lapse of many years at the time of examination of witnesses from the date of incident and can be ignored in given circumstances.
17.2 Submissions of both sides considered.
In the case of "Shivappa Vs. State of Karnataka" 2008 CRI. L. J. 2992, it has been held that : FIR No.79/2003 Page No.16 of 26 "Minor discrepancies or some improvements also, in our opinion, would not justify rejection of the testimonies of the eyewitnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court."
In the case of "Bhoginbhai Hirjibhai Vs. State of Gujarat" 1983 CRI. L. J. 1096, it was held that : "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses."
In the case of "State of U.P. Vs. Santosh Kumar" (2009) 9 CC 626, it has been held by Hon'ble Supreme Court of India as under : "In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur. But it is the duty of the Court to ensure that truth prevails and if on material particulars, statement of witnesses is consistent, then it cannot be discarded only because of minor inconsistencies."
In the case of "Jai Shree Yadav Vs. State of U.P." 2004 CRI. L. J. 4826, Hon'ble Supreme Court of India has observed as under : "When a witness is subjected to lengthy arduous crossexamination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions therefore those infirmities will have to be appreciated in the back ground of ground realities which makes the witness confused because of the filibustering tactics of the crossexamining counsel."
In matter of "Virender & Anr. Vs. State NCT of Delhi" 2013 III AD (CRI.) (DHC) 545, Hon'ble High Court of Delhi has held that : "13. Minor contradictions, discrepancies and improvements highlighted by the counsel for the appellants are inconsequential. They are not of such magnitude to materially affect the trial. These deviations on trivial matters without effecting the core of the prosecution case are not enough to reject her testimony in its entirety".
17.3 In view of the abovesaid judgments, if we consider the present case in hand, then, the present incident pertains to the year 2003 and the examinationinchief of PW4 was recorded in the year 2008 whereas he was crossexamined only in the FIR No.79/2003 Page No.17 of 26 year 2013. PW5 was examined and crossexamined in the year 2010. Examination inchief of PW6 was recorded in the year 2011 whereas he was crossexamined only in the year 2014. Examinationinchief of PW8 was recorded in the year 2013 whereas he was crossexamined only in the year 2014. So, it is clear that the evidence of all these witnesses was recorded after a lapse of considerable time period. The contradictions pointed out by the Ld. Defence Counsel are bound to happen even in the cases of most truthful witnesses in present circumstances and cannot be given undue weightage. All the abovesaid witnesses are police officials and are engaged in almost similar activities on daily basis. It is human limitation that one cannot remember a whole fact/incident beyond a certain time period and is bound to forget number of aspects of the same. PW5 has rightly deposed that the memo Ex.PW5/A was prepared at the instance of accused at his house and articles were also seized, but, he cannot give their description due to lapse of time. The said deposition of PW5 is but natural in given circumstances. The contradiction pointed out by defence that PW6 has deposed that PW4 was with them at the time of recovery instead of PW8 is also result of passage of number of years from the day of proceedings to the day of his deposition. The deposition of abovesaid witnesses is natural and the contradictions which have come on record in their deposition qua abovesaid recovery from the house of accused are but natural in given circumstances, whereas on the other hand a parrot like narrations by all said witnesses about the recovery from the house of accused after passage of so many years from the proceedings would have been unnatural and suspicious. The contradictions which have come on record in the FIR No.79/2003 Page No.18 of 26 deposition of said witnesses qua recovery from the house of the accused are in fact stamp of truthness on their depositions. In view of the same, submission of Ld. Defence Counsel that the evidence of said witnesses is not reliable being contradictory is hereby rejected.
18.1(a) Other contentions which have been raised by the defence are that no call details of alleged deal struck by PW4 with accused as alleged has been proved on record. No information was reduced to writing and there is no record produced to show that information was shared with seniors and further no orders from any senior official is on record. It is further contention of the defence that there was no complaint from the department of the accused, no deficiency was reported by anybody from the department of the accused and further there was no entrustment of any property to the accused. No misappropriation could have taken place at the time of segregation and packing as it used to be done by group of persons and further it used to be supervised by Assistant Post Master as deposed by DW1. It is further contention of the defence that this is a case of false implication by the IO at the instance of one Anil with whom the accused had altercation 15 days prior to the apprehension of the accused as deposed by DW1. It is further contention of the defence that accused should be acquitted in this matter.
18.1(b) On the other hand, it is the contention of the prosecution that the accused has not been able to prove his defence. No details of alleged Anil have been disclosed, therefore, prosecution has proved its case beyond shadow of reasonable doubt in this matter.
FIR No.79/2003 Page No.19 of 26 18.2 Submissions of both sides considered.
As far as the contention of the defence that no call details of deal struck by PW4 with accused on phone has been proved on record is concerned, PW4 has deposed that he prepared Rukka Ex.PW4/F at the time of recovery from the accused at Bus Stand, Ashram Road, Near Gurudwara Bangla Sahib on which present FIR was registered. It is clearly mentioned in the Ex.PW4/F that he received the information about the accused, it was shared with the Inspector Special Staff through telephone on whose instructions, he called accused on telephone bearing number 26980066, told him that he is a mailing agent, want to purchase tickets, deal was struck and further accused was called at Bus Stand, Ashram Road, Near Gurudwara Bangla Sahib at 07:00 pm. Thereafter, he prepared raiding party. He has also deposed in his examinationinchief that he narrated information to his senior officers and at his instance, he prepared raiding party. In his crossexamination also, he has deposed that the preparation of raiding party was in the notice of his senior officials. Defence chose not to crossexamine PW4 qua his said depositions. So, in given circumstances, where the factum of deal being struck on telephone bearing number 26980066 with the accused, the deposition of sharing information with seniors etc. was not controverted by the defence, therefore, prosecution was not obliged to bring their records/documents on record. As far as the contention of the defence that no complaint of department of the accused is on record is concerned, the department of the accused could not have acted unless and until it had come in the knowledge of the department expressly or it has been reported by someone which too depends upon FIR No.79/2003 Page No.20 of 26 information received by sender from the sendee/recipient qua nonreceipt of correspondence. Furthermore, departmental proceedings are separate proceedings and even if department chose not to take action against its erring official, it would not stop criminal law to take its own course. Now as far as the contention of the defence that no misappropriation could have been done by the accused at the time of segregation and packing is concerned, the defence relies upon the statement of DW1 that 4 - 5 persons used to do work of packing and separation of dak under supervision of Head Clerk of post office, but, said deposition is not supported by any documentary evidence on record that it is done so as per any given rules. Moreover, DW1 has not stated at what position he used to work in that post office at that time. He has also admitted in his crossexamination that he was not working with accused at time of incident in question, so his deposition who and how dak used to be stamped and segregated is of no value. On the other hand, PW2 who was the postmaster of post office (not controverted) where the accused was employed as postman at the time of incident in question has deposed that the accused to bring letters/dak from 12 letter boxes of area of Jamia Nagar to the post office, used to put stamp of post office upon them and then used to pack the said dak. The said deposition of PW2 was not controverted by defence in crossexamination. So, there is no force in this contention of defence also. As far as the contention of the defence that there was no entrustment of the property to the accused, so there is no violation of any entrustment and there is no misappropriation is concerned, in opinion of this Court, the said contention of the defence is not tenable considering the fact that it has not controverted the deposition FIR No.79/2003 Page No.21 of 26 of PW2 that accused used to collect letters/dak from 12 letter boxes of area of Jamia Nagar being postman of area, used to bring them to post office, then used to stamp them and pack them. So by virtue of his official duties, he was entrusted with the dak which he used to collect and since it was his duty as a postman to deposit the dak collected by him of even date at post office, had duty of stamping them and then pack them for their destinations and further since, he has not done so (since dak posted by PW1 was recovered from his possession), he can be said to be entrusted with property as Government Servant and has violated the terms of entrustment. Since, the accused was caught selling the stamps of said letters/dak after removing them and after erasing their stamp so he can be said to have misappropriated them and dispose off them in violation of entrustment. As far as the last contention of the defence that DW1 has categorically deposed that accused was falsely arrested in this matter at the instance of Anil Kumar with whom he had altercation 15 days prior to the incident in question is concerned, DW1 has deposed in his crossexamination that he cannot tell the name of police official who was known to the said Anil and further no details of said Anil Kumar have been disclosed by DW1. Furthermore DW1 has appeared on the scene very late, has not taken any steps to apprise any authority qua false implication of the accused prior to his deposition before this Court. No such defence was taken by the accused that he has been falsely implicated at instance of Anil Kumar till statement of accused recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973, therefore, it appears to be an afterthought taken to suggest reason for false implication and further therefore, FIR No.79/2003 Page No.22 of 26 DW1 appears to have been examined only for said purpose and in given circumstances, therefore, deposition of DW1 is not believable. In view of the same, said contention of defence is also hereby rejected.
19. It has been brought on record in the form of deposition of PW2 that accused used to work in his post office as postman (government servant) at relevant point of time, used to bring letters/dak from 12 post boxes of Jamia Nagar, stamp them and then used to pack them for their destinations. It has also been brought in the form of deposition of PW1 that he sent copies of his monthly magazines to his subscribers during relevant time on which he affixed tickets of Rs.24/ each, posted them at Jamia Nagar Post Office and has further identified Ex.P1 to Ex.P35 as being envelops sent by him to his various subscribers. It has also been brought on record in the form of deposition of PW4, PW5 and PW6 that on 05.04.2003 at about 07:00 pm, the accused handed over postal stamps of Rs.1,500/ Ex.P38 (collectively) in sum of Rs.500/ bearing photograph of Indian Railway and on which stamp of post office had been erased to PW6 and further other postal stamps and envelops Ex.P1 to Ex.P35, Ex.P39 (collectively) were also recovered from his possession. It has also been brought on record in the form of deposition of PW5, PW6 and PW8 that on 07.04.2003, postal stamps, envelops, postal bag and other post office stationary was also recovered from possession of accused at his instance from his house situated at Village Aghapur, Sector - 45, Noida, Uttar Pradesh and said case property being Ex.PB1 - Ex.PB1274. The case property of this present matter was also called by this Court for perusal again on 30.04.2016 and it was a large quantity of envelops bearing FIR No.79/2003 Page No.23 of 26 name of different senders and recipients. Stamp of post office was available on many of the stamps. Seal of post office was also partially visible on many of the stamps and envelops, from many of the envelops stamps appeared to have been removed. Such huge quantity and type of case property sent by different senders to different recipients bearing postal stamps could not be a planted one. In view of the deposition of PW2, it is clear that the accused had the occasion to be in possession of the same as being postman of the area, could have put stamps on the same and could also be in possession of them after packing them. PW1 in his deposition has identified letters/dak Ex.P1 to Ex.P35 being posted by him, which has been recovered from the possession of accused. So, the only inference which could be drawn is that the accused used to collect dak of his area and instead of depositing them in post office, use to take them home and remove the stamps for selling and further he also used to siphon off the dak which he has brought to the post office after stamping them and which used to be in his possession for the purpose of packing and then also used to remove stamps from them for purpose of selling. So, it can be said that accused used to be entrusted with letters/dak with postal stamps as Government Servant/postman, used to misappropriate postal stamps and used to convert them for his own use or for selling. He also fraudulently and with intention to cause loss to the Government, used to remove stamps issued by Government for purpose of revenue from documents/letters on which such stamps have been used for purpose of reuse or sale. PW7 has proved and exhibited Rukka Ex.PW4/F, formal FIR Ex.PW6/A and endorsement on Rukka Ex.PW7/A in his evidence. PW9 has proved and exhibited his FIR No.79/2003 Page No.24 of 26 report Ex.PW9/A and application for getting copies of order of impression of his seal vide Ex.PW9/B in his evidence. All prosecution witnesses were tendered for cross examination, some were not crossexamined by defence and the witnesses who were crossexamined have successfully passed the passed the test of lengthy and skillful crossexamination done on behalf of accused. No plausible explanation has been brought on record as to why complainant and other witnesses would falsely implicated accused in this case, therefore, there is no force in contention of defence that it is case of false implication. In totality of circumstances, ingredients of commission of offences punishable under Section 261, 263 and 409 of The Indian Penal Code, 1860 beyond shadow of reasonable doubt have been brought on record against the accused Sukhbir Singh, however, ingredients of commission of offence punishable under Section 262 of The Indian Penal Code, 1860 have not been brought on record against accused Sukhbir Singh because no evidence has been brought on record to show that he himself used already used stamps. Though, ingredients of offence punishable under Section 263 of The Indian Penal Code, 1860 have been brought on record, but since, accused was not charged for offence punishable under Section 263 of The Indian Penal Code, 1860, therefore, there is no point in reversing the clock at this stage as it would not be in interest of justice. In view of all the above discussion, accused is liable to be held guilty for offences punishable under Section 261 and 409 of The Indian Penal Code, 1860
20. In view of the aforesaid discussions, this Court is of the opinion that prosecution has duly proved its case against the accused for offences punishable FIR No.79/2003 Page No.25 of 26 under Section 261 and 409 of The Indian Penal Code, 1860 beyond shadow of any reasonable doubt, therefore, accused Sukhbir Singh stands convicted for offences punishable under Section 261 and 409 of The Indian Penal Code, 1860.
21. Copy of judgment be supplied to the convict free of costs.
Announced in the open Court on May 07, 2016.
(HARVINDER SINGH) M.M.06/PHC (NDD), New Delhi/07.05.2016 FIR No.79/2003 Page No.26 of 26