Delhi District Court
Rajesh S/O Sh Anari Lal vs The State (Govt Of Nct Of Delhi) on 6 June, 2013
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Appeal No.151/12
Rajesh S/o Sh Anari Lal
C2/40 Nangli Vihar
New Delhi
.......... Appellant
Versus
The State (Govt of NCT of Delhi)
........... Respondent
ORDER
The present criminal appeal u/s 374 Cr.PC. has been filed against the Judgment dated 6.10.2012 and order on the point of sentence dated 20.10.2012 passed by Sh Sharad Gupta, Ld. MM in case FIR no.77/2010 u/s 380 IPC whereby the accused/appellant was sentenced to undergo SI for 6 months.
2. Briefly stated the facts of the case for giving rise to this present appeal are that on 18.3.2010 between 5 a.m to 6 a.m, the accused alongwith his two accomplices in furtherance of their common intention committed theft of house hold articles, cash and Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.1 of 8 jewellery from the possession of complainant Yatender Sharma from his house no. C72 Mansa Ram Park, Uttam Nagar, Delhi. On the statement of complainant, case was registered vide FIR no. 77/10. Accused/appellant is stated to have been apprehended at the spot. He was arrested and after completion of investigation, charge sheet was filed. Charge u/s 380 IPC was framed against the appellant/accused on 10.4.2012 to which he pleaded not guilty and claimed trial. The prosecution examined 6 witnesses and thereafter statement of accused u/s 313 r/w sec.281 Cr.PC was recorded wherein appellant/accused has taken the plea that he has been falsely implicated in this case. After hearing the arguments, Ld. MM convicted the appellant u/s 380 IPC and sentence him to suffer SI for six months. Feeling aggrieved by the said order of conviction and sentence, the appellant has preferred this present appeal for setting aside the same.
3. The present criminal appeal was received by this court on 20.11.2012. After hearing the arguments, the sentence of appellant was suspended & he was admitted to bail. The trial court record was received and thereafter I have heard the arguments from the Ld. Counsel for the appellant as well as Ld. APP for the State.
4. During the course of arguments Ld. Counsel for the Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.2 of 8 appellant has argued that the order passed by the Ld.trial court is bad in law as it is mechanical in nature. The prosecution has miserably failed to bring home the guilt of accused. He has drawn the attention of the court on the testimony of PW3 Yatender and stated that in cross examination he has admitted that he told to the IO that other two boys have fled away from the spot, however, this fact was not mentioned in his statement Ex.PW3/A. It is further submitted that no call was made in this case to the police at number
100. The complainant has failed to produce any documentary proof to show that he was the owner of the alleged stolen articles. It is submitted that no other public witness has been examined in this case and Ld. Trial court has failed to appreciate the contradictions in this case. It is further submitted that other two coaccused were discharged by the Ld. Trial court. It is submitted that no chance prints were lifted from the spot by the crime team. It is further contended by the Ld. Counsel that the appellant is the only bread earner in the family and has responsibility of his family. He would suffer grave loss, irreparable harm and injury if the Judgment and order on sentence is not set aside. Ld. Counsel submitted that the present appeal may kindly be allowed and appellant may kindly be acquitted.
5. Ld. APP for the State has argued that the Ld. Trial court Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.3 of 8 has passed the order after going through the provision of Law and application of judicious mind. There is no illegality or infirmity in the order passed by the Ld. Trial court. So, interference of this court is not required in the impugned order. It is submitted that the appeal may kindly be dismissed.
6. In consideration of the submissions made by Ld. APP for the State as well as Ld. Counsel for the appellant, I have also perused the record. The present case of the prosecution hinges on the testimony of PW3 Yatender Sharma who has stated that on 18.3.09 he took his son to Mahindroo Hospital. At about 6 p.m when he came back, he saw that the door of his house was open and when he entered into his house, he saw three boys inside his house and were committing theft. Household articles were lying on the floor. On seeing him, two of the them fled after pushing him. He caught hold the third one and locked him inside the house. He called the neighbourer and with their help took him to PS. On enquiry his name came to know as Rajesh. He has further deposed that on checking, he found Rs.5,000/ in cash missing alongwith gold ear rings of his wife, three silver utensils of his child, one silver waist band, two gents rings one silver and other gold, two silver sets of necklace, two nosepins and rest of the items he does not know due to lapse of time but mentioned in his statement. He has further stated Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.4 of 8 that accused was arrested vide memo Ex.PW3/B. I have also perused his cross examination. But on perusal of his cross examination it is revealed that Ld. Defence counsel has not put any question to PW3 that the present accused did not enter into his house or that he was not stealing his household goods or that he was not apprehended at the spot. In a judgment reported in Bal Kishan Vs. State & Anr. 1977 Crl. J. 410, it has been held that if there is a failure to cross examine a witness in respect of a material assertion, it is to be presumed that the assertion stands admitted. In view of the above case law, the material assertion made by PW3 stand admitted by the accused. The appellant/accused was arrested in this case from the spot. So, there is no reason to disbelieve the version of PW3 as PW3 has failed to lead any defence evidence to prove that he has been falsely implicated in this case.
7. In view of the statement of PW3 Yatender Sharma who is the complainant in this case and since the accused is stated to have been arrested at the spot, I am of the view that prosecution has fully established this case against the accused.
8. The submission of the Ld. Counsel before this court has already been taken into consideration by the Ld. Trial court in Judgment vide para 8 to 13. In my view these submissions made by Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.5 of 8 the Ld. Counsel does not require any further discussion. No fresh submissions was made. Therefore, the Judgment of conviction of accused/appellant Rajesh u/s 380 IPC is maintained.
9. As far as the order on sentence is concerned, Ld. Counsel has submitted that the appellant is only the bread earner in the family and has responsibility of his family. He would suffer grave loss, irreparable harm and injury if the Judgment and order on sentence is not set aside. It is submitted that appellant undertakes to keep peace and be of good behaviour in future. Section 380 IPC contemplates - 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 whcih may extend to seven years, and shall also be liable to fine. Ld. MM has sentenced the appellant to undergo imprisonment for a period of six months for offence u/s 380/ IPC only but no fine was imposed.
10. Record revealed that accused has also spent 7 days in custody. The present case was registered on 18.03.2010 and the accused has been facing trial for last about 3 years. Ld. Counsel prayed for releasing the appellant on probation. Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.6 of 8
11. The Apex Court in Commandant, 20th Battalion, ITB Police v. Sanjay Binjola , 2001 Crl LJ 2349 has enunciated the cases where such benefit should not be extended in the following words: " 9.......It is true that nobody can claim the benefit of Sections 3 and 4 of the Probation of Offenders Act as a mater of right and the court has to pass appropriate orders in the facts and circumstances of each, case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc. There are laws which specifically direct that the provisions of Probation of Offenders Act shall not apply to the persons convicted for those offences and there may be cases under other laws as well which may not justify the exercise of the powers of Probation of Offenders Act. Even apart from such exclusions the courts should be wary of extending the benefit of Probation of Offenders Act to offences relating to corruption, narcotic drugs, etc. .....
12. Keeping in view the facts and circumstances of the case and the above pronouncements, I am of the view that the Ld.trial court has already taken a very lenient view in sentencing the appellant. In view of this, I am not inclined to grant the benefit of probation to the appellant. The appeal is therefore, hereby dismissed.
13. The Appellant is on bail. His BB/SB is cancelled and surety is discharged. He be taken into custody to suffer the sentence Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.7 of 8 awarded by the Ld. Trial court.
14. Trial court file be sent back with the copy of this order to the court concerned and appeal file be consigned to record room. Announced in the Open Court on 06.06.2013 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI Rajesh Vs. The State (Govt.of NCT of Delhi) CA NO. 151/12 Page No.8 of 8