Delhi District Court
Rakesh Rawat vs State on 24 December, 2024
Rakesh Rawat Vs. State
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CA No.:- 65/2024
CNR NO.:- DLWT01-001760-2024
IN THE MATTER OF :-
Rakesh Rawat
S/o Sh. Manwar Singh Rawat
R/o Village Bawasa, Pauri Gharwal,
Uttrakhand .... Appellant
VERSUS
State .... Respondent
Date of institution of the appeal : 27/02/2024
Date on which judgment was reserved : 18/12/2024
Date of judgment : 24/12/2024
JUDGMENT
1. By way of present judgment, this Court shall
conscientiously adjudicate upon criminal appeal under section
374(3) r/w Section 383 of the Code of Criminal Procedure, 1973
(hereinafter referred to as “Cr.P.C.”) filed by the appellant against
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:19:53 -0200CA No. 65/2024 Page No.1/38
Rakesh Rawat Vs. Statethe judgment dated 08/08/2023 (hereinafter referred to as
‘impugned judgment’) and order on sentence dated 04/09/2023
(hereinafter referred to as ‘impugned order’) passed by Ms. Ruby
Neeraj Kumar, Ld. ACMM, West District, Tis Hazari Courts,
Delhi, in case titled as “State Vs. Rakesh Rawat @ Dead Body“
FIR No. 681/2022, PS Ranjit Nagar, u/s 380 IPC.
In the present appeal, the appellant has prayed to
allow the present appeal and to set-aside the impugned judgment
dated 08/08/2023 and order on sentence dated 04/09/2023 passed
by the Ld. Trial Court.
2. Appellant has preferred the present appeal against
the judgment dated 08/08/2023 and order on sentence dated
04/09/2023 passed by the Ld. Trial Court. Vide judgment dated
08/08/2023, the appellant/accused was convicted by the Ld. Trial
Court for the offence u/s. 380 IPC. Vide order on sentence dated
04/09/2023, the appellant/accused was sentenced to undergo
simple imprisonment for the period of three years for the offence
u/s 380 IPC and he was also directed to pay fine of Rs. 3,000/-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:20:04 -0200
CA No. 65/2024 Page No.2/38
Rakesh Rawat Vs. State
(Rupees Three Thousand Only) payable as costs to the
prosecution and in-default of payment of fine, he was sentenced
to undergo simple imprisonment for the period of one month.
3. BRIEF FACTS AS MENTIONED IN THE APPEAL
Brief facts necessary for just adjudication of the
present appeal as stated in the present appeal are that the
appellant has filed the present appeal against the judgment dated
08/08/2023 and order on sentence dated 04/09/2023 passed by
the Ld. Trial Court in case titled as “State Vs. Rakesh Rawat @
Dead Body” FIR No. 681/2022, PS Ranjit Nagar, u/s 380 IPC.
The appellant has not filed any other appeal/revision against the
impugned judgment and order on sentence before this Court or
any other Court.
The appellant has challenged the impugned
judgment and order on sentence on the grounds, as mentioned in
the present appeal.
Grounds of appeal- Ld. Trial Court has failed to appreciate the
fact that there are material contradictions in the deposition of the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:20:11 -0200CA No. 65/2024 Page No.3/38
Rakesh Rawat Vs. Statewitnesses, which put a serious doubt on the prosecution’s case.
Impugned judgment is not based on a sound appreciation of the
facts and circumstances and the law laid down by the Hon’ble
Supreme Court of India. Complainant had intentionally lodged
the false FIR with the help of police officials of PS Ranjit Nagar
and converted his personal enmity into a criminal nature and
falsely implicated the appellant/accused. Appellant/accused was
arrested on 25/09/2022 and falsely implicated in the present case
by making well cooked-up stories, neatly waved sequence of
events, articulated and fabricated facts in order to make the case
more complicated and intentionally proving wrong things right.
Place of incident was a crowded area and despite the same, the
police officials have failed to join any public witness. Moreover,
there were many security cameras installed but the police
officials have failed to collect the same. CCTV footage of the
alleged place of incident was never collected by the police as the
alleged incident never took place and the Ld. Trial Court has
ignored this vital fact while deciding the case. There are several
major contradictions and improvements in the statements of the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:20:19 -0200CA No. 65/2024 Page No.4/38
Rakesh Rawat Vs. Statealleged eye-witnesses and Ld. Trial Court did not pay attention to
the same while appreciating their testimonies. There are
contradictions and improvements in the testimonies of
prosecution witnesses and their statements u/s 161 Cr.P.C. Two
mobile phones make OPPO A-31 and Redmi Note II belonging
to complainant/PW-1 Sanjeev Kumar Prajapati and PW-4 Sone
Lal were recovered from the possession of the appellant but their
testimonies show that the aforesaid mobile phones were allegedly
recovered from the appellant to falsely implicate him.
Complainant/PW-1 in his testimony had deposed that one of his
friend namely Sunil Anand had also plugged his mobile phone
make Redmi for charging with his mobile phone but the IO has
failed to bring Sunil Anand as witness in the present case and the
same shows that the aforesaid mobile phones were planted. PW-1
had stated that IO had inquired with the security guard and
another person/driver of the warehouse Ready Roti India Pvt.
Ltd. but their statements were not recorded in the presence of the
complainant in order to substantiate the alleged offence. Colour
of mobile phone make Oppo A-31 is different in the recovery
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:20:35 –
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CA No. 65/2024 Page No.5/38
memo and in the tax invoice/bill submitted by the complainant,
which creates reasonable doubt that the said phone was planted
by the police officials. PW-1 and PW-4 have deposed that some
persons were passing by from the spot but the IO had not made
any inquiry from them. IO had also not searched for the CCTV
footage installed in the warehouse. Sone Lal was having enmity
with the appellant. Impugned judgment has been passed by the
Ld. Trial Court in casual manner and the Ld. Trial Court has
failed to implement its judicial mind to correctly appreciate the
evidence and the testimonies of the prosecution witnesses before
convicting the appellant. Ld. Trial Court has failed to consider
the fact that the prosecution has not even proved its case beyond
reasonable doubt, therefore, impugned judgment and order on
sentence are liable to be set-aside. Impugned judgment is against
the facts and evidence on record and same is contrary to the law
and is based on conjecture and surmises and not supported with
legal admitted principles. Ld. Trial Court has failed to consider
the fact that evidently, case of the prosecution turns to be a
fabricated one and appellant has been falsely implicated in the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:20:44 –
0200
CA No. 65/2024 Page No.6/38
present case, therefore, impugned judgment and order on
sentence are liable to be set-aside.
4. Before proceeding further, it is relevant to mention
here the proceedings before the Ld. Trial Court.
(i) In the present case, on the complaint of the
complainant Sh. Sanjeev Kumar Prajapati, FIR No. 681/2022,
Police Station Ranjit Nagar, U/s. 380/411 IPC was got registered
by the Police of Police Station Ranjit Nagar. After registration of
the FIR, the matter was investigated by the police and on
completion of the investigation, charge-sheet was submitted in
the Ld. Trial Court on 23/11/2022 for trial of the accused.
(ii) Briefly stated the case of the prosecution as per
charge-sheet is that on 25/09/2022 at about 7:50 AM at
warehouse of Ready Roti India Pvt. Ltd. situated at 2151/13,
Ground Floor, New Patel Nagar, Delhi within the jurisdiction of
PS Ranjit Nagar, accused Rakesh Rawat @ Dead Body had
committed the theft of two mobile phones make OPPO A-31
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:20:52 -0200CA No. 65/2024 Page No.7/38
Rakesh Rawat Vs. State(light green colour), having IMEI No. 854717041733555 &
854717041733548 and Redmi Note II (black colour) having
IMEI No. 861620058261580 & 861620058261598 belonging to
the complainant Sanjeev Kumar Prajapati and Sone Lal
respectively. It is also the case of the prosecution that Sanjeev
Kumar Prajapati and Sone Lal saw the accused while he was
committing the theft of aforesaid mobile phones and they started
chasing the accused and they apprehended the accused with the
aid of SI Rakesh Singh and HC Satish, who were on patrolling
duty and the aforesaid stolen mobile phones were recovered from
the possession of the accused.
(iii) Cognizance of the offence was taken by the Ld. Trial
Court vide order dated 23/11/2022. Copies of the charge-sheet
were supplied to the accused Rakesh Rawat @ Dead Body in
compliance of section 207 Cr.P.C.
(iv) Finding a prima-facie case against the accused
Rakesh Rawat @ Dead Body, charge for the offence u/s. 380/411
IPC was framed against the accused Rakesh Rawat @ Dead
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:20:59 -0200CA No. 65/2024 Page No.8/38
Rakesh Rawat Vs. StateBody, to which he pleaded not guilty and claimed trial.
(v) Prosecution was then called upon to substantiate its
case by examining its witnesses. The prosecution in support of its
case had examined four witnesses i.e. complainant/PW-1
Sh. Sanjeev Kumar Prajapati, PW-2 HC Satish, PW-3 SI Rakesh
Singh and PW-4 Sh. Sone Lal.
PW-1 and PW-4 in their testimonies have
categorically, elaborately and graphically described as to how the
offence of theft of their mobile phones was committed by the
accused Rakesh Rawat @ Dead Body at the relevant time, date
and place. They have also deposed regarding recovery of the
aforesaid stolen mobile phones from the possession of the
accused.
PW-2 and PW-3 in their testimony had deposed that
on 25/09/2022, they were on patrolling duty and during
patrolling they saw that one boy was running and public persons
were behind him and shouting and chasing him and they
apprehended the said boy and two mobile phones were recovered
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:21:09 –
0200
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Rakesh Rawat Vs. Statefrom his possession.
PW-3 is the IO in the present case, who deposed
regarding investigation conducted by him and he duly proved on
record the documents relating to the investigation conducted by
him.
PW-1, PW-2, PW-3 and PW-4 were cross-examined
by counsel for the accused.
(vi) The prosecution in support of its case has relied
upon the documents i.e. complaint of the complainant
Ex.PW-1/A, seizure memo of stolen mobile phones Ex.PW-1/B,
arrest memo of the accused Ex.PW-1/C, personal search memo of
the accused Ex.PW-1/D, superdarinama of mobile phone
Ex.PW-1/E, copy of invoice/bill Mark PW-1/X1, disclosure
statement of the accused Ex.PW-2/A and superdarinama of
mobile phone Ex.PW-4/A.
It is pertinent to mention here that on 31/01/2023,
statement of the accused u/s 294 Cr.P.C. was recorded wherein he
admitted the genuineness and veracity of the documents i.e. FIR
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:21:17 –
0200
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No. 681/2022, PS Ranjit Nagar Ex.A-1, certificate u/s. 65-B of
Indian Evidence Act Ex.A-2 and DD No. 23 A dated 25/09/2022
Ex.A-3.
Apart from aforesaid documentary evidence, the
prosecution has also relied upon the other evidence (case
property) i.e. Oppo mobile phone Ex.P-1 and Redmi mobile
phone Ex.P-2.
(vii) Separate statement of the accused Rakesh Rawat @
Dead Body was recorded u/s. 313 Cr.P.C r/w section 281 Cr.P.C.
wherein he denied the allegations against him and rebutted the
prosecution evidence against him and claimed that he is innocent
and he has been falsely implicated in this case. It was also stated
by the accused that the case properties were planted upon him
and nothing was recovered from his possession. It was also stated
that he does not want to lead evidence in his defence.
(viii) Thereafter, final arguments were heard by the Ld.
Trial Court. Vide impugned judgment passed by the Ld. Trial
Court, accused was convicted for the offence u/s. 380 IPC and
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:21:24 -0200CA No. 65/2024 Page No.11/38
Rakesh Rawat Vs. Stateorder on sentence was passed by the Ld. Trial Court.
ARGUMENTS ON THE APPEAL
5. This Court heard the arguments on the present
appeal advanced by Ld. Counsel for the appellant and Ld. Addl.
PP for the State/respondent. Perused the material available on
record.
During the course of arguments, it was submitted by
Ld. Counsel for the appellant that the impugned judgment and
order on sentence are liable to be set-aside on the grounds, as
mentioned in the present appeal. On the other hand, it was
submitted by Ld. Addl PP for the State/respondent that the Ld.
Trial Court has passed the impugned judgment and order on
sentence in accordance with law and there is no merits in the
present appeal and the same is liable to be dismissed.
FINDINGS
6. It is well settled law that in order to bring home
conviction the prosecution has to show on record an unbroken
chain of events leading to commission of actual offence. Further,
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:21:33 -0200CA No. 65/2024 Page No.12/38
Rakesh Rawat Vs. Stateit is the duty of the prosecution to prove its case in such a manner
so as to bring it outside the pale of any reasonable doubt.
Before proceeding further, it is relevant to discuss
the relevant case laws relating to appreciation of evidence.
Law relating to appreciation of evidence of the
witnesses has been elaborated by the Hon’ble High Court of
Delhi in case titled as “Satish @ Bombaiya Vs. State“, { 44
(1991) DLT 561} and it was held that :-
“…….. While appreciating the evidence of a
witness approach must be whether the
evidence of the witness, read as a whole,
appears to have a ring of truth. Once that
impression is formed then undoubtedly it is
necessary for the Court to scrutinise the
evidence more particularly keeping in view
the deficiencies, drawbacks, and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is against
the general tenor of the evidence given by the
witness and whether earlier evaluation of the
evidence is shaken as to render it unworthy of
behalf. Minor discrepancies on trivial matters
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:21:42 -0200CA No. 65/2024 Page No.13/38
Rakesh Rawat Vs. Statenot touching the core of the case, hyper
technical approach by taking sentences torn
out of context here and there from the
evidence, attaching importance to some
technical error committed by the investigating
officer not going to the root of the matter,
would not ordinarily permit rejection of the
evidence as a whole. The main thing to be
seen is, whether those inconsistencies go to
the root of the matter or pertain to
insignificant aspects thereof. In the former
case, the defense may be justified in seeking
advantage of the inconsistencies in the
evidence. In the latter, however, no such
benefit may be available to it. That is a
salutary method of appreciation of evidence in
criminal cases.”
Law relating to appreciation of ocular evidence has
been elaborated by the Hon’ble High Court of Delhi in case titled
as ” Akbar & Anr. Vs. State“, { 2009 Cri. L.J. 4199 } and it was
held that :-
“49. The appreciation of ocular evidence is a
Herculean task. There is no fixed or strait-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:21:51 -0200
CA No. 65/2024 Page No.14/38
Rakesh Rawat Vs. State
jacket formula for appreciation of ocular
evidence. The judicially evolved principles
regarding the appreciation of the ocular
evidence in a criminal case can be enumerated
as under:-
I. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the Court to scrutinize the
evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is against
the general tenor of the evidence given by the
witness and whether the earlier evaluation of
the evidence is shaken as to render it
unworthy of belief.
II. If the Court before whom the witness
gives evidence had the opportunity to form
the opinion about the general tenor of
evidence given by the witness, the appellate
court which had not this benefit will have to
attach due weight to the appreciation of
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:22:01 -0200
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Rakesh Rawat Vs. State
evidence by the trial Court and unless there
are reasons weighty and formidable it would
not be proper to reject the evidence on the
ground of minor variations or infirmities in
the matter of trivial details.
III. When eye-witness is examined at length
it is quite possible for him to make some
discrepancies. 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.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of
context here or there from the evidence,
attaching importance to some technical error
committed by the investigating officer not
going to the root of the matter would not
ordinarily permit rejection of the evidence as
a whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an
incident (either as between the evidence of
two witnesses or as between two statements
of the same witness) is an unrealistic
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
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Rakesh Rawat Vs. State
approach for judicial scrutiny.
VI. By and large a witness cannot be
expected to possess a photographic memory
and to recall the details of an incident. It is not
as if a video tape is replayed on the mental
screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not
have anticipated the occurrence which so
often has an element of surprise. The mental
faculties therefore cannot be expected to be
attuned to absorb the details.
VIII. The powers of observation differ from
person to person. What one may notice,
another may not. An object or movement
might emboss its image on one person’s mind
whereas it might go unnoticed on the part of
another.
IX. By and large people cannot accurately
recall a conversation and reproduce the very
words used by them or heard by them. They
can only recall the main purport of the
conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to exact time of an incident, or
the time duration of an occurrence, usually,
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:22:18 -0200CA No. 65/2024 Page No.17/38
Rakesh Rawat Vs. Statepeople make their estimates by guess work on
the spur of the moment at the time of
interrogation. And one cannot expect people
to make very precise or reliable estimates in
such matters. Again, it depends on the time-
sense of individuals which varies from person
to person.
XI. Ordinarily a witness cannot be expected
to recall accurately the sequence of events
which take place in rapid succession or in a
short time span. A witness is liable to get
confused, or mixed up when interrogated later
on.
XII. A witness, though wholly truthful, is
liable to be overawed by the court atmosphere
and the piercing cross examination by counsel
and out of nervousness mix up facts, get
confused regarding sequence of events, or fill
up details from imagination on the spur of the
moment. The sub- conscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being
disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him.
XIII. A former statement though seemingly
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signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
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Rakesh Rawat Vs. Stateinconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Unless the former statement has
the potency to discredit the later statement,
even if the later statement is at variance with
the former to some extent it would not be
helpful to contradict that witness”.
7. (i) Testimonies of complainant/victim/eye-
witnesses
In the present case, charge for the offence
u/s. 380/411 IPC was framed against the accused.
PW-1 is the complainant/victim and PW-4 is also the
victim/eye-witness in the present case. PW-1 and PW-4 in their
testimonies have categorically, elaborately and graphically
described as to how the offence of theft of their mobile phones
was committed by the accused at the relevant time, date and
place and they have also deposed regarding recovery of the
aforesaid stolen mobile phones from the possession of the
accused.
PW-1 and PW-4 have duly supported the case of the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:22:32 –
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Rakesh Rawat Vs. Stateprosecution. Complainant/PW-1 in his testimony had duly proved
on record the complaint Ex. PW-1/A, on the basis of which, the
present case FIR was got registered. Complainant/PW-1 in his
complaint Ex.PW-1/A has specifically mentioned the name of the
appellant/ accused. The contents of complaint Ex.PW-1/A and
FIR Ex.A-1 have been duly proved on record and corroborated
by PW-1, PW-4 and other prosecution witnesses.
Testimonies of PW-1 and PW-4 are corroborated
with the testimonies of other prosecution witnesses and
documentary evidence as well as other evidence relied upon by
the prosecution. There is nothing on the record to disbelieve the
testimonies/versions of PW-1 and PW-4. In the cross-
examination of PW-1 and PW-4, no material contradiction/
inconsistency has been surfaced or pointed out except some
minor ones which are but natural.
(ii) Identity of the accused
PW-1, PW-2, PW-3 and PW-4 during the course of
their testimonies had duly identified the appellant/ accused
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:22:39 -0200CA No. 65/2024 Page No.20/38
Rakesh Rawat Vs. StateRakesh Rawat @ Dead Body. Arrest memo Ex.PW-1/C and
personal search memo Ex.PW-1/D of the accused Rakesh Rawat
@ Dead Body are also bearing the signatures of PW-1, PW-2,
PW-3 and PW-4. Counsel for the accused Rakesh Rawat @ Dead
Body had not put any question in the cross-examination of PW-1,
PW-2, PW-3 and PW-4 to dispute the identity of the accused
Rakesh Rawat @ Dead Body. Hence, identity of the appellant/
accused Rakesh Rawat @ Dead Body was duly established by
the prosecution.
(iii) Presence of the accused
PW-1 and PW-2 in their testimonies have
specifically deposed that the accused Rakesh Rawat @ Dead
Body was present at the place of incident at the relevant time and
date. Counsel for the accused Rakesh Rawat @ Dead Body had
not put any question in the cross-examination of the PW-1 and
PW-2 to dispute the presence of the accused Rakesh Rawat @
Dead Body at the place of incident at the relevant time and date.
Hence, presence of the accused at the place of the incident at the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:22:46 -0200CA No. 65/2024 Page No.21/38
Rakesh Rawat Vs. Staterelevant time and date was duly established by the prosecution.
(iv) Identity of the case property
During the course of examination of prosecution
witnesses, stolen mobile phones were produced and same were
duly identified by the prosecution witnesses. During the course
of examination of PW-1, stolen mobile phone make OPPO
Ex.P-1 was produced before the Ld. Trial Court. During the
course of examination, PW-3 had identified the stolen mobile
phone make REDMI Ex.P-2. During the course of examination,
PW-4 had identified the stolen mobile phone make REDMI
Ex.P-2 from the photographs. Counsel for the accused/ appellant
had not put any question in the cross-examination of PW-1,
PW-2, PW-3 and PW-4 to dispute the identity of the aforesaid
case properties Ex.P-1 and Ex.P-2. Seizure memo Ex.PW-1/B of
the aforesaid stolen mobile phones is bearing the signatures of
PW-1, PW-2, PW-3 and PW-4. Seizure memo of stolen mobile
phones Ex.PW-1/B was duly proved on record by the
prosecution. Hence, identity of the stolen mobile phones Ex.P-1
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:22:52 -0200CA No. 65/2024 Page No.22/38
Rakesh Rawat Vs. Stateand Ex.P-2 was duly established/proved by the prosecution.
(v) Testimonies of police witnesses
In the present case, PW-2 and PW-3 are the police
officials. From the testimonies of the aforesaid police witnesses,
it is evident that investigation conducted including the documents
prepared in the present case during the course of investigation
have been substantially proved by the aforesaid police witnesses.
PW-3 is the IO in the present case, who deposed
regarding investigation conducted by him and he duly proved on
record the documents relating to the investigation conducted by
him.
(vi) Defence Evidence
In the present case, no defence evidence had been
led by the accused Rakesh Rawat @ Dead Body in support of his
defence and to rebut and contradict the case of the prosecution.
(vii) Other factors
In the present case, mode & manner of offence,
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:02 -0200CA No. 65/2024 Page No.23/38
Rakesh Rawat Vs. Statemotive, intention and knowledge are relevant factors. The
aforesaid factors have been duly proved on record by the
prosecution.
In the present case, PW-1 and PW-4 in their
testimonies have specifically deposed regarding the mode and
manner in which the accused had committed the offence of theft
of their mobile phones Ex.P-1 and Ex.P-2. Factum regarding
recovery of stolen mobile phones i.e. Ex.P-1 and Ex.P-2 from
the possession of the accused has also been duly proved on
record by the PW-1, PW-2, PW-3 and PW-4.
Testimonies of PW-1 and PW-4 are corroborated
with the testimonies of other prosecution witnesses and
documentary evidence as well as other evidence i.e. case
properties relied upon by the prosecution.
8. CONTENTIONS
(a) It is the contention of the appellant that in the
present case, PW-4 had turned hostile and had not supported the
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:09 -0200CA No. 65/2024 Page No.24/38
Rakesh Rawat Vs. Statecase of the prosecution as PW-4 in his cross-examination had
deposed that no incident of theft of mobile phone had occurred
and in view of the same, impugned judgment and order on
sentence are liable to be set-aside.
It is well settled law that evidence of a hostile
witness cannot be discarded as a whole and relevant parts thereof
which are admissible in law can be used by the prosecution or the
defence.
Law relating to hostile witness has been elaborated
by the Hon’ble Supreme Court of India in case titled as ” Rajesh
Yadav & Anr Vs. State of UP”, {Criminal Appeal No.339-
340/2014 decided on 04/02/2022} and it was held that :-
“The expression “hostile witness” does not
find a place in the Indian Evidence Act. It is
coined to mean testimony of a witness turning
to depose in favour of the opposite party. We
must bear it in mind that a witness may
depose in favour of a party in whose favour it
is meant to be giving through his chief
examination, while later on change his view
in favour of the opposite side. Similarly, there
would be cases where a witness does not
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:16 -0200CA No. 65/2024 Page No.25/38
Rakesh Rawat Vs. Statesupport the case of the party starting from
chief examination itself. This classification
has to be borne in mind by the Court. With
respect to the first category, the Court is not
denuded of its power to make an appropriate
assessment of the evidence rendered by such a
witness. Even a chief examination could be
termed as evidence. Such evidence would
become complete after the cross examination.
Once evidence is completed, the said
testimony as a whole is meant for the court to
assess and appreciate qua a fact. Therefore,
not only the specific part in which a witness
has turned hostile but the circumstances under
which it happened can also be considered,
particularly in a situation where the chief
examination was completed and there are
circumstances indicating the reasons behind
the subsequent statement, which could be
deciphered by the court. It is well within the
powers of the court to make an assessment,
being a matter before it and come to the
correct conclusion.”
It was held by Hon’ble Supreme Court of India in
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:22 –
0200
CA No. 65/2024 Page No.26/38
Rakesh Rawat Vs. Statecase titled as ” Neeraj Dutta Vs. State (Govt. of NCT of Delhi)”,
{Criminal Appeal No.1669/2009 decided on 15/12/2022} that :-
“Therefore, this Court cautioned that even if a
witness is treated as “hostile” and is cross-
examined, his evidence cannot be written off
altogether but must be considered with due
care and circumspection and that part of the
testimony which is creditworthy must be
considered and acted upon. It is for the judge
as a matter of prudence to consider the extent
of evidence which is creditworthy for the
purpose of proof of the case. In other words,
the fact that a witness has been declared
“hostile” does not result in an automatic
rejection of his evidence. Even, the evidence
of a “hostile witness” if it finds corroboration
from the facts of the case may be taken into
account while judging the guilt of the
accused. Thus, there is no legal bar to raise a
conviction upon a “hostile witness” testimony
if corroborated by other reliable evidence.”
PW-4 in his examination-in-chief had duly
supported the case of the prosecution but in his cross-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:32 -
0200
CA No. 65/2024 Page No.27/38
Rakesh Rawat Vs. State
examination, he had deposed that no incident of theft of mobile
phone had occurred. On perusal of testimony of PW-4, it is
revealed that PW-4 was not declared hostile by the prosecution.
Only on the basis of aforesaid cross-examination of PW-4, the
whole testimony of PW-4 as well as case of the prosecution
cannot be completely washed off/discarded in view of the fact
that PW-4 had duly supported the case of the prosecution in his
examination-in-chief. Even otherwise, case of the prosecution is
duly supported and corroborated with the testimonies of PW-1
and other prosecution witnesses. In view of the same, the
contention of the appellant in this regard is not tenable.
(b) It is the contention of the appellant that PW-1 in his
testimony had deposed that one of his friend namely Sunil Anand
had also plugged his mobile phone make Redmi for charging with
his mobile phone but the IO has failed to bring Sunil Anand as
witness in the present case and the same shows that the aforesaid
mobile phones were planted and in view of the same, impugned
judgment and order on sentence are liable to be set-aside.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:40 -
0200
CA No. 65/2024 Page No.28/38
Rakesh Rawat Vs. State
In the complaint Ex.PW-1/A, FIR Ex.A-1 and
charge-sheet, name of Sunil Anand nowhere mentioned. It appears
that in the testimony of PW-1, name of victim Sone Lal has been
mentioned as Sunil Anand. Merely because the PW-1 has wrongly
mentioned the name of Sunil Anand, testimonies of all the
prosecution witnesses cannot be completely washed off/discarded
in view of the fact that prosecution has been able to prove its case
against the accused beyond reasonable doubt. Even otherwise, in
the cross-examination of PW-1, counsel for the accused had not
put any question in respect of Sunil Anand. In view of the same,
the contention of the appellant in this regard is not tenable.
(c) It is the contention of the appellant that in the present
case, the IO has not made any effort to collect the CCTV footage
from the place of incident and in view of the same, impugned
judgment and order on sentence are liable to be set-aside. In the
present case, PW-1, PW-2, PW-3 and PW-4 have duly supported
the case of the prosecution. Merely because the CCTV footage of
the place of incident of the relevant time and date was not
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:48 –
0200
CA No. 65/2024 Page No.29/38
Rakesh Rawat Vs. Statecollected by the IO, testimonies of PW-1, PW-2, PW-3 and PW-4
cannot be completely thrown out/ discarded. In view of the same,
the contention of the appellant in this regard is not tenable.
(d) It is the contention of the appellant that PW-4 Sone
Lal was having enmity with the accused and due to the said
reason, accused has been falsely implicated in the present case and
in view of the same, impugned judgment and order on sentence
are liable to be set-aside. There is nothing on the record to show
that PW-4/victim Sone Lal was having enmity with the accused.
Even otherwise, counsel for the accused in the cross-examination
of PW-4 had not put any question in this regard. No defence
evidence had been led by the accused in this regard and in support
of his aforesaid contention. In view of the same, the contention of
the appellant in this regard is not tenable.
(e) It is the contention of the appellant that in the present
case, place of incident was a crowded area and despite the said
fact, no independent public witness including security guard and
driver of warehouse were joined in the investigation of the present
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:23:56 -0200CA No. 65/2024 Page No.30/38
Rakesh Rawat Vs. Statecase by the IO nor examined in the present case and in view of
the same, impugned judgment and order on sentence are liable to
be set-aside.
It is well settled law that non-examination of any
witness per se will not vitiate the case of the prosecution and it
depends upon the quality and not the quantity of the witnesses
and its importance.
It was held by Hon’ble Supreme Court of India in
case titled as ” Rajesh Yadav & Anr. Vs. State of UP”, {Criminal
Appeal No.339-340/2014 decided on 04/02/2022} that:-
“A mere non-examination of the witness per
se will not vitiate the case of the prosecution.
It depends upon the quality and not the
quantity of the witnesses and its importance.
If the court is satisfied with the explanation
given by the prosecution along with the
adequacy of the materials sufficient enough to
proceed with the trial and convict the accused,
there cannot be any prejudice. Similarly, if the
court is of the view that the evidence is not
screened and could well be produced by the
other side in support of its case, no adverse
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:24:05 –
0200
CA No. 65/2024 Page No.31/38
inference can be drawn. Onus is on the part of
the party who alleges that a witness has not
been produced deliberately to prove it….”
It is well settled law that non-joining of public
witness in the investigation is not fatal in every case. In the
present case, PW-1 and PW-4 were joined in the investigation of
the present case. PW-1 and PW-4 have duly supported the case of
the prosecution. In view of the same, the contention of the
appellant in this regard is not tenable.
(f) It is the contention of the appellant that IO had not
investigated the present matter properly and in view of the same,
impugned judgment and order on sentence are liable to be set-
aside.
There is nothing on the record to show that IO had
not investigated the present matter properly and investigation
was defective.
Even otherwise, it was held by Hon’ble Supreme
Court of India in case titled as “Ambika Prasad & Anr. Vs. State
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:24:13 –
0200
CA No. 65/2024 Page No.32/38
Rakesh Rawat Vs. State(Delhi Administration)” (AIR 2000 SC 718) that :-
…..Dealing with a case of negligence on the
part of the investigating officer, this Court in
Karnel Singh v. State of MP {(1995) 5 SCC
518} observed that in a case of defective
investigation it would not be proper to acquit
the accused if the case is otherwise established
conclusively because in that event it would
tantamount to be falling in the hands of erring
investigating officer…”
Hence, the contention of the appellant in this regard is
not tenable.
(g) It is the contention of the appellant that testimonies of
prosecution witnesses are contradictory with their statements
u/s 161 Cr.P.C. and in view of the same, impugned judgment and
order on sentence are liable to be set-aside.
During the course of examination of prosecution
witnesses, accused/ counsel had not put the statements u/s 161
Cr.P.C. to them for the purpose of contradictions. Even otherwise,
no material contradiction and inconsistency has been surfaced in
the testimonies of prosecution witnesses except some minor ones
which are but natural. Hence, the contention of the appellant in
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:24:21 –
0200
CA No. 65/2024 Page No.33/38
Rakesh Rawat Vs. Statethis regard is not tenable.
(h) It is the contention of the appellant that testimonies of
PW-1, PW-2 and PW-3 are contradictory in respect of the distance
between the place of incident and place of apprehending the
accused and in view of the same, impugned judgment and order
on sentence are liable to be set-aside.
PW-1 in his cross-examination had deposed that
accused was apprehended after chasing about 800 meters. PW-2
in his cross-examination had deposed that the distance between
the warehouse of the complainant and the spot from where the
accused was apprehended was about 300 meters. PW-3 in his
cross-examination had deposed that accused was apprehended 100
meters from the godown.
It was held in Akbar case (Supra) that if the Court
before whom the witness gives evidence had the opportunity to
form the opinion about the general tenor of evidence given by the
witness, the appellate court which had not this benefit will have
to attach due weight to the appreciation of evidence by the trial
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:24:33 –
0200
CA No. 65/2024 Page No.34/38
Rakesh Rawat Vs. StateCourt and unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial details.
The aforesaid contradictions are not material
contradictions as the prosecution witnesses have duly supported
the case of the prosecution. Hence, the contention of the appellant
in this regard is not tenable.
(i) It is the contention of the appellant that there are
material contradictions and inconsistencies in the testimonies of
prosecution witnesses and in view of the same, impugned
judgment and order on sentence are liable to be set-aside.
It was held by Hon’ble Supreme Court of India in
case titled as “Sunil Kumar Sambhudayal Gupta Vs. State of
Maharashtra“, { (2010) 13 SCC 657} that:-
“While appreciating the evidence, the court
has to take into consideration whether the
contradictions/ omissions had been of such
magnitude that they may materially affect the
trial. Minor contradictions, inconsistencies,
embellishments or improvements on trivial
matters without effecting the core of the
prosecution case should not be made a
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:24:43 -0200CA No. 65/2024 Page No.35/38
Rakesh Rawat Vs. Stateground to reject the evidence in its entirety.
The Trial Court, after going through the
entire evidence, must form an opinion about
the credibility of the witnesses and the
appellate Court in normal course would not
be justified in reviewing the same again
without justifiable reasons.”
In the testimonies of prosecution witnesses, no
material contradiction and inconsistency has been surfaced
except some minor ones which are but natural. Hence, the
contention of the appellant in this regard is not tenable.
CONCLUSION
9. It is well settled law that the Appellate Court will
usually not interfere with the exercise of discretion by the Trial
Court and the Appellate Court will interfere only if it is found that
the discretion has been exercised arbitrarily, capriciously and
perversely. The first Appellate Court is required to examine the
case of the appellant with reference to the grounds urged in the
appeal.
It was held by Hon’ble Supreme Court of India in
case titled as ” Rajan Vs. State of MP“, {(1999) 6 SCC 29} that:-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:24:50 -0200CA No. 65/2024 Page No.36/38
Rakesh Rawat Vs. State“Appellate Court’s jurisdiction is co-extensive
with that of the trial Court in the matter of
assessment, appraisal and appreciation of the
evidence and also to determine the disputed
issues.”.
All the points and contentions were duly dealt with
by the Ld. Trial Court in the impugned judgment. Ld. Trial Court
has rightly held that the prosecution had successfully proved all
the ingredients of the offence u/s 380 IPC against the appellant/
accused. There is nothing on the record to show that the Ld.
Trial Court has exercised its discretion arbitrarily, capriciously
and perversely. There is no illegality, impropriety and infirmity in
the impugned judgment and order on sentence passed by the Ld.
Trial Court.
Sentence and fine were awarded by the Ld. Trial
Court to the appellant/ accused after considering the aggravating
and mitigating circumstances. Sentence and fine amount awarded
by the Ld. Trial Court are not excessive and the same are
reasonable and justified.
10. Applying priori and posteriori reasonings and the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
16:25:00 –
0200
CA No. 65/2024 Page No.37/38
aforesaid case laws, this Court is held that there is no illegality,
impropriety and infirmity in the impugned judgment and order
on sentence passed by the Ld. Trial Court. Impugned judgment
dated 08/08/2023 and order on sentence dated 04/09/2023 passed
by the Ld. Trial Court are upheld. Accordingly, the present appeal
of the appellant is dismissed. No order as to costs.
Appellant is already in JC in the present case. He be
kept in jail to serve the sentence awarded by the Ld. Trial Court.
Benefit of Section 428 Cr.P.C. be given to the appellant.
Copy of this judgment be supplied to the appellant
free of cost through Superintendent, Jail No.8/9, Tihar, New
Delhi.
Delhi Trial Court Record be sent back alongwith the copy of this
judgment. Appeal file be consigned to record room after due
compliance. Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.12.24
Announced in the open Court 16:25:11 –
0200
on 24/12/2024
(VIJAY SHANKAR)
ASJ-04 (West)
Tis Hazari Courts, DelhiCA No. 65/2024 Page No.38/38