Delhi District Court12.In The Case Of Sukhdev Yadav & Ors. vs State Of Bihar (2001) 8 Scc 86 It Was Held ... on 8 January, 20071



   IN THE COURT OF SH. DIG VINAY SINGH, METROPOLITAN MAGISTRATE, ROHINI, DELHI
                In re,
                         STATE
                                 VERSUS
                                          Raju


                                                   F.I.R. No. 6/2000
                                                   U/s 454/380/411/34IPCP.S. Uttam Nagar




   JUDGEMENT(a) The serial no. of the case                              : 256/2
   (b) The date of commission of offence                       : 04.01.00
   (c) The name of complainant                                 : Sh.Sushil Verma(d)The name, parentage, residence of accused                :1. Nizam @ Raja S/o Lal Mohmad R/o
                                                               Jhuggi Kali Basti, Uttam Nagar.( Proclaimed Offender)2. Raju @ Shiv Ram S/o Hari Chand, R/o #
                                                                  255T, Camp Krishna colony, kali Basti,
                                                                  Uttam Nagar.(e) The offence complained of/ proved                       : u/s 454/380/411/34IPC(f) The plea of accused                                     : pleaded not guilty
   (g) The final order                                         : Conviction
   (h) The date of such order                                  : 08.01.07
    (i) Brief statement of the reasons for the decision                                                    :1. Two accused Raju @ Shiv Ram and Nizam @ Raja were sent up for trial in this case for offences U/s
   454/380/411/34IPC.       During pendency of trial at one stage both accused were declared
   proclaimed offender on 23.11.04 and subsequently accused Raju@ Shiv Ram was arrested and he
   faced trial. The present judgment is accordingly directed against accused Raju @ Shiv Ram only
   since accused Nizam is already PO.2. Briefly stated the case of the prosecution is that accused Raju @ Shiv Ram was apprehended red
   handed on 4.1.00 from inside the factory of complainant when he committed theft of articles from
   inside the factory, by the complainant himself. Earlier also accused Raju and Nizam purportedly

Judgment of FIR No. 06/00                     PS Uttam Nagar                                 page 1 of page52committed theft from the same factory one day prior to it. Certain stolen articles were recovered
      from the possession of accused Nizam.3. My ld. Predecessor court on 16.3.00 when both accused were facing trial framed a charge U/s
      379/411/34IPCagainst both the accused and did not frame charge U/s 454/380IPC.4. Be that as it may the prosecution in total examined five witnesses in support of its case.5. PW-1 Deen Dayal Bansal was examined on 13.5.00 who deposed that on 4.1.00 he noticed broken
      lock of the factory of Sushil Verma at A-66/80 , Gulab Bagh, Uttam Nagar, Delhi and he called the
      owner of the factory and thereafter both accused were apprehended from inside the factory. This
      witness was not cross examined by the accused despite opportunity and therefore the testimony of
      this witness remains absolutely unrebutted and uncontroverted.6. PW-4 Sushil Verma was also an eye witness and owner of the factory who deposed that on 4.1.00
      at about 11 am neighbour Deen Dayal telephonically informed him about broken locks of his
      factory.   He reached his factory and from inside the factory accused Raju @ Shiv Ram was
      apprehended and he was in possession of one bag which was containing aluminum and brass
      articles stolen from inside the factory. He then took the accused to the police station, lodged his
      complaint EXPW1/A and the stolen articles were taken into police possession vide memo
      EXPW1/J. This witness also identified the recovered articles in the court as EXP-1. Nothing
      material could be brought out on record from the cross examination of this witness in order to
      impeach creditworthiness or trustworthiness of this witness.7. PW-1 Braham Dev ( By mistake again wrongly numbered as PW-1) and PW-3 HC Braham Saroop
      both deposed that the complainant produced the accused Raju in the police station alongwith the
      stolen articles and lodged his complaint on which the present case was registered, case property
      was seized after sealing the same with the seal of RK vide memo EXPW1/J. Thereafter the accused
      was arrested vide memo EXPW1/D. These witnesses also identified the stolen articles in the court.
      These witnesses also deposed regarding arrest of accused Nizam on disclosure of accused Raj with
      which we are not concerned in the present judgment since Nizam is PO. Nothing material could
      be brought out on record from the cross examination of these witnesses in order to impeach
      creditworthiness or trustworthiness of these witnesses.8. PW-2 ASI Vinod Sharma was the duty officer who proved FIR EXPW2/A.9. All the incriminating evidence were put to the accused in his examinationu/s 313Cr.P.C. to which
      the accused generally denied and stated that he has been falsely implicated but the accused did
      not give any reason whatsoever for alleged false allegation of accused in this case. Accused also did
      not opt to lead any defence evidence in his favour.10.          I have heard ld. App for state and counsel Sh. AN Sharma for the accused.11.          Counsel Sh. A N Sharma for accused pointed out certain contradictions in the testimony of

Judgment of FIR No. 06/00                       PS Uttam Nagar                               page 2 of page53witnesses. In my considered view none of the contradictions as appearing in the statement of the
   witnesses and as pointed out are material enough to create doubt about the truthfulness of the
   case of the prosecution. It may be mentioned here that the accused took up a defence that he has
   been falsely implicated in the present case but no cogent reason for false implication has been
   shown. Whenever an accused takes up a plea that he has been falsely implicated the first question
   which arises is as to what was the ground for false implication. This question in the present case
   has not been answered. It may be mentioned that for any false implication there has to be some or
   the other motive which is in the best knowledge of the accused and the onus to tell the motive of
   false implication is on the accused which could not be discharged in the present case. Simply by
   alleging that we have been falsely implicated -falsely implicated would not be sufficient to create
   doubt about the case of the prosecution. The accused does not have any kind of enmity with any
   of the prosecution witnesses therefore there is no question of his false implication. The nature of
   contradictions pointed out in the present case are minor and are infact simple errors of
   observation which occurs in human nature.           The testimony of the witnesses are otherwise
   corroborating each other in all necessary material particulars. Simply because there occurs some
   minor variations in their powers of observation and retention would not make the case of the
   prosecution unbelievable.12.In the case of Sukhdev Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it was held by Hon Supreme
   Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court
   should not hesitate in accepting the same .         If the evidence in its entirety appears to be
   trustworthy, it cannot be discarded merely on the ground of presence of minor variations in
   evidence. Relying upon an earlier decision inLeela Ram vs. State of Haryana(1999) 9 SCC 525 it
   was observed that there are bound to be some discrepancies between the narrations of different
   witnesses when they speak on details, and unless the contradictions are of a material dimension,
   the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of
   evidence with mathematical niceties cannot be expected in criminal cases.                    Minor
   embellishments, there may be, but variations by reason therefore should not render the evidence
   of eyewitnesses unbelievable.     Trivial discrepancies ought not to obliterate an otherwise
   acceptable evidence.Relying upon an earlier decision in Ramani vs. State of M.P. (1999) 8 SCC 649
   it was also observed that when an eye witness is examined at length it is quite possible for him to
   make some discrepancies. No true witness can possibly escape from making some discrepant
   details. Perhaps an untrue witness who is well tutored can successfully make his testimony
   totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the
   evidence of a witness are so incompatible with the credibility of his version that the court is
   justified in jettisoning his evidence. But too serious a view to be adopted on mere variations

Judgment of FIR No. 06/00                   PS Uttam Nagar                               page 3 of page54falling in the narration of an incident either as between the evidence of two witnesses or as
      between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It
      was also held that it is a common practice in trial courts to make out contradictions from the
      previous statement of a witness for confronting him during cross-examination. Merely because
      there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubtsection 155of the Evidence Act provides scope for impeachment the credit of a witness by proof of
      an inconsistent former statement. But a reading of the section would indicate that all
      inconsistent statements are not sufficient to impeach the credit of the witness.13.In Krishna Mochi and Others Vs. State of Bihar, (2002) 6 SCC 81, where it was held that it is the
      quality of evidence that matters and not the number of witnesses. It was further held that credible
      evidence of even a solitary witness can form the basis of conviction. That contradictions,
      inconsistencies, exaggerations or embellishments are inevitable. It was further held that a
      discrepancy existing in a prosecution case should not weigh with the Court so long it does not
      materially affect the case. It was further held that the duty of the Court is not only to see that no
      innocent man should be punished but also to ensure that no person committing an offence should
      get scot-free. It was also held that even if a major portion of evidence is found to be deficient, in
      case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of
      other co-accused persons, his conviction could be maintained.14.It is now well settled that the principal 'falsus in uno falsus in omnibus' does not apply to criminal
      trials and it is the duty of the court to disengage the truth from the falsehood, to sift the grain from
      the chaff. Instead of rejecting the evidence in its entirety merely on the basis of few infirmities and
      merely because in one respect it is unsafe to rely on the testimony of a witness it does not necessarily
      follow as a matter of law that it must be discarded in all other respects also. A person, whose
      evidence is false or evasive in part, of the case, may be perfectly reliable in another part. Reliance is
      placed upon the case ofKesho Ram vs. StateAIR 1978 Supreme Court 1096; Sukhdev Yadav & ors.
      Vs. State of Bihar (2001) 8 SCC 86.15.          Counsel for accused also argued that case property when produced in the court in the
      testimony of Sushil Verma was unsealed and therefore benefit should be given to accused. There
      is no force in this contention since when this case property was produced for the first time in the
      court it was in the testimony of PW HC Braham Dev on 20.5.06 when this witness was examined
      U/s 299Cr.P.C. since at that time both accused were PO, it was in sealed condition although
      impression of seal was not clear. Once the testimony of PW Deen Dayal has remained absolutely
      unrebutted and uncontroverted and PW Sushil Verma has deposed regarding recovery of stolen
      articles from the possession of accused Raju which was also identified by him in the court and
      particularly when there is no reason for PW Sushil Verma to falsely implicate the accused , the

Judgment of FIR No. 06/00                        PS Uttam Nagar                                 page 4 of page55impression of seal being not clear loses its importance.16.          In view of above discussion from the testimony of public independent witness it is proved
      beyond doubt that accused entered into the factory of complainant and committed theft of articles
      EXP-1. Accused Raju @ Shiv Ram is accordingly found guilty and is convicted U./s 379IPC. So far
      assection 411IPC is concerned once accused is convicted for committing theft himself , he cannot
      be convicted for receiving or retaining stolen property. A thief himself cannot be receiver or
      retainer of the stolen property.17. Accused Raju @ Shiv Ram is accordingly found guilty and is convicted U./s 379IPC.Announced in open court                                    DIG VINAY SINGH
      On 08.01.07                                                Metropolitan Magistrate
                                                                 Rohini, Delhi




Judgment of FIR No. 06/00                       PS Uttam Nagar                             page 5 of page56FIR No. 6/00PS U.Nagar
8.1.07


Present; APP for state.
         Accused Nizam is already PO.
         Accused Raju present in JC with Sh. AN Sharma amicus curie.Final arguments heard. Vide my separate judgment of even date Accused Raju @ Shiv Ram is
found guilty and is convicted U./s 379IPC.Put up for arguments on sentence on 15.1.07.MM/Rohini/Delhi 8.1.07




Judgment of FIR No. 06/00                     PS Uttam Nagar                        page 6 of page5