Delhi District Court
State vs . Vikram on 7 October, 2022
SC/559/21
State Vs. Vikram
IN THE COURT OF SHRI DEEPAK JAGOTRA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
SC No.559/2021
CNR No.DLET01-007582-2021
State Versus Vikram S/o Shish Ram
R/o A-48, Gali No.6,
Khajuri Khas, Delhi.
E-FIR No.044043/2019
PS Kalyan Puri
Under Section 379/328 IPC
Date of institution of case : 10-11-2021
Reserved for judgement on : 21-09-2022
Date of passing of Judgement : 07-10-2022
JUDGEMENT
1. The present case has been filed by the State seeking conviction of accused Vikram for the offences punishable under Section 379/328 of the Indian Penal Code (hereinafter shall be referred as "IPC").
2. Heard both the sides and assiduously gone through the record of the case.
3. Learned Addl. Public Prosecutor for the State Page no. 1 of 30 SC/559/21 State Vs. Vikram has submitted that prosecution has successfully proved its case beyond a reasonable doubt against the accused and further prays that accused may be convicted for the offences charged against him.
4. On the other hand, it has been submitted on behalf of the accused that he has been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond a reasonable doubt against the accused and further prays for the acquittal of the accused.
5. Facts of the case, in concise format, are that on 15.12.2019 at 12.30 Hours near DSIDC Office, Kalyan Puri, Delhi, accused made the complainant to drink tea, laced with some intoxicant/stupefying substance in order to facilitate the commission of theft of e-rickshaw and committed theft of e-rickshaw belonging to victim Pushpender.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
Page no. 2 of 30 SC/559/21 State Vs. Vikram
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed for trial and the charge-sheet was received by the Court on 10-11- 2021. Charge was framed against the accused on 23-11- 2021 for the offences punishable under Section 379/328 IPC against the accused. Accused has pleaded not guilty and claimed trial.
8. In order to prove its case, the prosecution has examined as many as four witnesses.
9. Statement under Section 313 Cr.P.C. of accused was recorded on 21-09-2022.
10. In his defence, no witness has been examined by the accused.
11. It is pointed out that the entire case shall be scrutinized and analyzed keeping an eye on the settled provisions of law and judicial precedents.
Page no. 3 of 30 SC/559/21 State Vs. Vikram ANALYSIS OF PROSECUTION EVIDENCE OCULAR EVIDENCE
12. The prosecution, in order to prove its case, has brought in the witness box two material witnesses, i.e., victim Pushpender (PW-2) and complainant Satender (PW-3).
13. Before the Court, PW-2 victim Pushpender has deposed that he used to ply e-rickshaw for livelihood. On 15.12.2019, he took one passenger from CNG Pump Station, Khora, UP and someone took his e-rickshaw. He has further deposed that he cannot identify that person and does not know anything else about this case.
14. PW-3 Satender has deposed that he is the owner of e-rickshaw bearing registration no. DL4TC0631 which he had purchased from the Sunshine Dealer, New Kondli, Mayur Vihar in 2019. He handed over the said e- rickshaw to his elder brother Pushpender for plying. He has further deposed that on 15.12.2019, his brother told Page no. 4 of 30 SC/559/21 State Vs. Vikram him that the said e-rickshaw was stolen by someone. On 16.12.2019, he lodged online E-FIR No. 44043/2019 Ex.PW3/A. After few days, they found their e-rickshaw at their own and handed it over to police which he got released by the orders of the court. He has further deposed that he does not know anything else about this case.
15. The complete testimony of PW-2 Pushpender and PW-3 Satender shall be discussed in the later part of this judgment.
DEPOSITION OF OTHER FORMAL PROSECUTION WITNESSES
16. Besides these witnesses, prosecution has also examined one formal witness to prove as follows;
S.No. Name of witness To prove 1. PW-1 Ct. Sachin Disclosure statement of accused Ex. PW-
1/A, arrest memo Ex. PW-1/B and personal search memo Ex.PW1/C. CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE Page no. 5 of 30 SC/559/21 State Vs. Vikram
17. The prosecution case unfolds when on 15.12.2019, PW2 Satender took one passenger from CNG Station, Khora, UP in his e-rickshaw and the said e- rickshaw was stolen by someone.
Both the material witnesses ie victim and complainant did not identify the accused as perpetrator of the crime.
18. Since PW-2 and PW-3 did not support the case of the prosecution in any manner whatsoever, the witnesses were declared hostile and were at length cross examined by Ld. Addl. PP for the State.
19. In the cross-examination by the State, PW2 Pushpender has denied the suggestion that on 15.12.2019, he reached at DSIDC complex, Kalyan Puri, Delhi and passenger of his e-rickshaw requested him to wait for sometime and left the e-rickshaw or that after some time, that passenger returned and gave him a cup of tea which he drank or that thereafter, he became Page no. 6 of 30 SC/559/21 State Vs. Vikram unconscious. He has further denied the suggestions that said passenger took his e-rickshaw or that he could not stop him due to unconsciousness and tried to follow him but fell down or that after some time, he regained his consciousness and found his e-rickshaw missing which he searched but in vain. He has further denied the suggestion that he returned home and disclosed about the incident to his brother Satender Gupta and they both again tried to search the e-rickshaw or that his brother got registered the E-FIR No.044043/2019.
He has further denied the suggestion that on16.12.2019, he along with his brother reached at PS Kalyan Puri and pointed out the spot to the IO or that IO enquired about the e-rickshaw and accused but in vain or that IO recorded his statement. This witness was confronted with his statement Ex.PW2/A from point A to A1 wherein it is so recorded. He volunteered that IO took his signatures on some blank papers.
Page no. 7 of 30 SC/559/21 State Vs. Vikram He has further denied the suggestion that site plan Ex.PW2/B bears his signatures at point A. He denied that on 19.12.2019, he along with his brother Satender were going in search of stolen e-rickshaw or that when they reached at Kondli More, Kalyan Puri, Delhi, he saw a person standing near fruit mandi and identified him as the same person who took his e-rickshaw by putting some stupefying substance (Nashili Cheez) in the tea or that he disclosed all these facts to his brother Satender or that they caught hold of that person, took him to PS Kalyan Puri and handed him over to IO. He has further denied the suggestion that on enquiry by the IO, that person disclosed his name as Vikram or that IO arrested him and prepared his arrest memo Ex.PW1/B and personal search memo Ex.PW1/C bearing his signatures at point B or that IO also recorded the disclosure statement of accused Ex.PW1/A bearing his signatures at point B. Page no. 8 of 30 SC/559/21 State Vs. Vikram He has further denied the suggestion that accused Vikram is the same person who took his e- rickshaw. He failed to identify the accused as the person who took away his e-rickshaw even after pointing out by the Ld. Addl. PP.
He was again confronted with statement Ex.PW2/C from point A to A1 wherein it is so recorded. He volunteered that IO took his signatures on some blank papers. He identified four photographs of his e-rickshaw as collectively Ex.P-1.
He has denied the suggestion that he is intentionally not identifying the accused being won over by him or that he is deposing falsely in order to save him.
20. In the cross-examination of PW-3 Satender by the State, he denied the suggestion that IO recorded his statement U/s 161 Cr.PC Mark-PW3/X or that his brother Pushpender told him that someone had given some intoxicant in tea to his brother and thereafter, Page no. 9 of 30 SC/559/21 State Vs. Vikram that person took their e-rickshaw or that his brother Pushpender Gupta also gave the statement Ex.PW3/B in this regard. He has further denied the suggestion that he had given his statement U/s 161 Cr.PC Mark-PW3/Y to the IO that on 19.12.2019, he along with his brother Pushpender were searching e-rickshaw and when they reached at Fruit Mandi, Kondli Turn, Kalyan Puri, his brother pointed out towards one person and disclosed that he was the person who had given him tea and stolen their e-rickshaw or that both of them immediately after apprehending the accused, handed him over to the IO in the PS or that name of that robber was revealed as Vikram S/o Shish Ram who was pointed out by the Ld. Addl. PP. He was confronted with the statement Mark- PW3/Y wherein it is so recorded.
He admitted that arrest memo Ex.PW1/B and personal search memo Ex.PW1/C bear his signatures at point C. He volunteered that he signed upon these papers Page no. 10 of 30 SC/559/21 State Vs. Vikram at the instance of police officials.
He has further denied the suggestion that he signed arrest papers because accused Vikram was arrested in his presence. He has further denied that on 30.12.2019, IO recorded his statement U/s 161 Cr.PC Mark-PW3/Z. He has admitted that on 30.12.2019, he was searching his e-rickshaw and reached at Khajuri Chowk and thereafter, at Bhajan Pura where he found his e- rickshaw in abandoned condition and handed it over to the IO in the PS who seized the same vide seizure memo Ex.PW3/C. He identified the four photographs of e- rickshaw as Ex.P-1.
He has further denied the suggestion that accused Vikram, (pointed out by the Ld. Addl.PP) is the same person who committed robbery of his e-rickshaw or that he has entered into compromise with accused or that due to the same, he is intentionally not deposing the truth.
21. Ld. Counsel for the accused did not cross Page no. 11 of 30 SC/559/21 State Vs. Vikram examine PW2 Pushphender and PW3 Satender.
22. It is culled out from the statement of sole eye witness/victim, ie, PW2 Pushpender that indeed, e- rickshaw was stolen by giving him some intoxicant/stupefying substance in the tea and the said fact was told by him to his brother PW3 Satender, who lodged the E-FIR No.044043/2019. But at the time of identification in the dock, he completely failed to identify the robber. It is trite that identification is the core issue for establishing the guilt of the accused beyond reasonable doubt. Once the identity of the accused is not established in the court qua the offences charged against the accused, it is abundantly difficult to fasten the accused with the crime alleged against him or them.
23. In the instant case, the sole witness PW2 Puspender has, however, admitted that e-rickshaw was stolen, but on the facts of the case, he did not utter even a single word which connects the accused with the alleged Page no. 12 of 30 SC/559/21 State Vs. Vikram offence. There is not even an iota of evidence against the accused. Therefore, the very foundation on which the entire prosecution case rests has been demolished by the material witness. In the statement before the Court, the victim PW2 Pushpender has stated that e-rickshaw was stolen by someone but on the point of identification, he clearly exonerated the accused. He is the best person with whom the the incident took place being the victim and eye witness. Moreover, he is the best evidence to narrate the true and correct facts. Even PW3 Satender, to whom, the victim had narrated the entire story and accused was arrested in his presence, has also exonerated the accused. When both these witnesses have not implicated the accused with the offence alleged against PW2 Pushpender, no guilt whatsoever can be fastened upon the accused. No incriminating evidence worth the name has come on record to connect the accused with the crime.
24. As far as the evidentiary value of sole Page no. 13 of 30 SC/559/21 State Vs. Vikram witness is concerned, the same is succinctly elaborated in judgment titled as Alagupandi vs. State of Tamilnadu reported in AIR 2012 SC 2405, the Apex Court has observed that :-
"In the case of Govindaraju @ Govinda vs State of Sriramapuram P.S. and Anr., (Crl. Appeal No. 984 of 2007 decided on March 15, 2012), this Court held as under :
11. Now, we come to the second submission raised on behalf of the Appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eye-witness). It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of Page no. 14 of 30 SC/559/21 State Vs. Vikram witnesses. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand MANU/SC/0004/2003 : (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories :
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and Page no. 15 of 30 SC/559/21 State Vs. Vikram must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy.
Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the cases of Joseph Vs. State of Kerala, MANU/SC/1084/2002: (2003) 1 SCC 465 and Tika Ram vs. State of Madhya Pradesh (2007) 15 SCC 760. Even in the case of Jhapsa Kabari and Ors. Vs State of Bihar MANU/SC/0776/2001 : (2001) 10 SCC 94, this Court took the view that Page no. 16 of 30 SC/559/21 State Vs. Vikram if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy."
25. The Hon'ble Apex Court has succinctly elaborated the sanctity of dock identification in a case titled as 'Sheo Shankar Singh Vs. State of Jharkhand and Ors., Criminal Appeal no. 791-792 of 2005 decided on 15.02.2011 wherein Hon'ble Apex Court has observed as under :
It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a Page no. 17 of 30 SC/559/21 State Vs. Vikram test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. As to what should be the weight attached to such an identification is a matter which the Page no. 18 of 30 SC/559/21 State Vs. Vikram Court will determine in the peculiar facts and circumstances of each case. In appropriate cases the Court may accept the evidence of identification in the Court even without insisting on corroboration. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a reference to the following observations made by this Court in Malkhansingh and Ors. v. State of M.P. MANU/SC/0445/2003 : (2003) 5 SCC 746:
It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a Page no. 19 of 30 SC/559/21 State Vs. Vikram general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the Page no. 20 of 30 SC/559/21 State Vs. Vikram stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. Inappropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. MANU/SC/0043/1958 : AIR 1958 SC 350, Vaikuntam Chandrappa v. State of A.P. MANU/SC/0224/1959 :
AIR 1960 SC 1340, Budhsen v. State Page no. 21 of 30 SC/559/21 State Vs. Vikram of U.P. MANU/SC/0103/1970 :
(1970) 2 SCC 128 and Rameshwar Singh v. State of J and K.MANU/SC/0174/1971 : (1971) 2 SCC 715).
26. It is trite that in criminal justice system, identification of malefactor is of prime importance in order to fasten the guilt beyond reasonable doubt. The dock identification is an integral part of criminal procedure. If the witness fails to identify the accused in the dock, nothing survives in a criminal case as the cardinal rule is that the criminal case has to be proved beyond reasonable doubt. No matter how clearly the witness has spoken about the incident if he has not identified the accused then the effect of his statement becomes meaningless and redundant.
27. PW-4 Manoj Kumar is the IO of the case, who has deposed that on 16.12.2019, one E-FIR No.44043/2019 was registered U/s 379 IPC regarding Page no. 22 of 30 SC/559/21 State Vs. Vikram theft of e-rickshaw no.DL4TC0631. He enquired the complainant Satender Gupta who disclosed that his brother namely Pushpender Gupta was plying the said e- rickshaw on the fateful day and recorded his Ex.PW3/B and also prepared the site plan Ex.PW2/B at his instance. He added section 328 IPC in this case and tried to find out the case property and accused but of no avail. He has further deposed that on 19.12.2019, both the victims met him in the PS and handed over the accused Vikram and disclosed that he was the same person who committed the offence. He enquired accused Vikram who confessed his involvement in the present crime and recorded his disclosure statement Ex.PW1/A which bears his signatures at point C. He arrested the accused vide arrest memo Ex.PW1/B and also personally searched him vide memo Ex.PW1/C. Accused disclosed that he has already sold the e-rickshaw to one Shanu for Rs.20000/- (Rupees Twenty Thousand). He produced the accused before the Page no. 23 of 30 SC/559/21 State Vs. Vikram concerned court and obtained one day PC remand. He has further deposed that accused took them to a park near Karawal Nagar, Bhajan Pura and disclosed that it was the place where he sold the e-rickshaw to Shanu. Thereafter, accused was sent to J/C. He has further deposed that on 30.12.2019, complainant Satender Gupta came to the PS and produced the e-rickshaw and disclosed that he found that e- rickshaw at Bhajan Pura, Delhi in abandoned condition. He seized the said e-rickshaw vide seizure memo Ex.PW3/C which bears his signatures at point B. Thereafter, investigation was marked to SI Pawan Yadav, who prepared the charge-sheet and submitted in the Court. He identified the accused as well as e-rickshaw Ex.P-1.
28. In his cross-examination by the Ld. Counsel for the accused, he has denied the suggestion that he did not conduct fair investigation in this case or Page no. 24 of 30 SC/559/21 State Vs. Vikram that due to the same I could not recover any e-rickshaw himself.
He has admitted that the recovery of e- rickshaw was not effected from the accused. He has further denied the suggestion that accused Vikram did not commit any theft or robbery with the victims or that due to which, they did not depose anything against the accused or that accused has been falsely implicated in this case in order to solve the prosecution case or that he is deposing falsely.
29. PW1 Ct. Sachin, in his cross-examination by the accused, has denied the suggestion that accused did not make any disclosure statement or that he has been wrongly arrested in this case or that his personal search was wrongly taken or that his medical examination was not carried out as per rules or that he is deposing falsely.
30. PW-4 ASI Manoj Kumar was the IO who has tried to prove the case of the prosecution but failed to Page no. 25 of 30 SC/559/21 State Vs. Vikram achieve the result for the simple reason that no conviction can be sustained merely on the statement of the IO. It is trite that the statement of police officials shall be supported and corroborated by the independent evidence and other star witnesses of the prosecution.
31. In every criminal trial, the identity of the accused must be established by proof beyond reasonable doubt. Indeed, the first duty of the Prosecution is not to prove the crime but to prove the identity of the offender, for even if the commission of the crime can be established, there can be no conviction without proof of identity of the offender beyond reasonable doubt. Thus, identity of the accused could not be established beyond reasonable doubt. In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be Page no. 26 of 30 SC/559/21 State Vs. Vikram doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
32. In Raj Kumar Singh vs. State of Rajasthan (2013) 5 SCC 722, it has been held that:-
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved".
In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that Page no. 27 of 30 SC/559/21 State Vs. Vikram mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court Page no. 28 of 30 SC/559/21 State Vs. Vikram must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
33. Keeping in view the mandate of the above judgment, the accused cannot be convicted of the offence charged against him especially considering the fact that nothing has surfaced against him to return a finding of guilt.
CONCLUSION
34. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. Prosecution has completely failed to bring home the charge under Section 379/328 IPC against accused Vikram. Accused stands acquitted.
Page no. 29 of 30 SC/559/21 State Vs. Vikram His bail bond is cancelled and surety is discharged.
35. Accused is directed to furnish fresh Bail Bond in the sum of Rs.10,000/- (Ten Thousand) with one surety in the like amount, which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure.
36. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 07th OCTOBER, 2022.
Digitally signedby DEEPAK
DEEPAK JAGOTRA
JAGOTRA Date:
2022.10.07
04:18:25 +0530
(DEEPAK JAGOTRA)
PRINCIPAL DISTRICT & SESSIONS JUDGE EAST DISTRICT KARKARDOOMA COURTS, DELHI Page no. 30 of 30