Delhi District Court
State vs Krishan on 27 July, 2024
State V. Krishan
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CNR No.DLWT01-009408-2022
Case No. 657/2022
FIR No. 679/2021
PS: Nangloi
U/s. 392/394/397/34 IPC
State Vs. Krishan
a) Date of commission of offence : 23/09/2021
b) Name of the complainant : Sh. Pawan Kumar
S/o Sh. Ram Sharan
c) Name of accused and address : Krishan
S/o Sh. Raj Kumar
R/o A-312, Camp No.2,
Nangloi, Delhi
d) Offence complained of : u/s. 392/394/397/34 IPC
e) Plea of accused : Pleaded not guilty
f) Final order : CONVICTED
Date of institution of the case : 09/12/2021
Date of committal : 20/09/2022
Date on which judgment was : 03/07/2024
reserved
Date of judgment : 27/07/2024
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.07.27
06:32:47
+0530
FIR No.679/2021 PS Nangloi Page No.1/39
State V. Krishan
JUDGMENT
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. Briefly stated the case of the prosecution is that on 23/09/2021 at about 8:00 AM, at Kirari Mod near Nangloi Metro Station, New Delhi within the jurisdiction of Police Station Nangloi, accused Krishan and his associate Manoj (yet not arrested) in furtherance of their common intention had committed the robbery of mobile phone make Realme RMX 2030 from the possession of the complainant Pawan Kumar and while committing the robbery of mobile phone, accused Krishan had used the deadly weapon i.e. blade and caused the injury to the complainant with blade.
REGISTRATION OF FIR, INVESTIGATION AND CHARGE-SHEET
2. In the present case, on the complaint of the complainant Sh. Pawan Kumar, FIR bearing No. 679/2021, Police Station Nangloi, U/s. 394/397/34 IPC was got registered by the Police of Police Station Nangloi. After registration of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:33:04 +0530 FIR No.679/2021 PS Nangloi Page No.2/39 State V. Krishan FIR, the matter was investigated by the police and on completion of the investigation, the present charge-sheet was submitted in the Court of Ld. MM on 09/12/2021 for trial of the accused Krishan.
COGNIZANCE
3. Cognizance of the offence was taken by the Ld. MM vide order dated 09/12/2021.
SUPPLY OF COPIES AND COMMITTAL
4. Copies of the charge-sheet were supplied to the accused in compliance of section 207 Cr.P.C. Thereafter, vide order dated 20/09/2022 passed by the Ld. MM, the present case was committed to the Court of Sessions.
CHARGE
5. Finding a prima-facie case against the accused Krishan, charge for the offence u/s. 392/394/34/397 IPC was framed against the accused Krishan, to which he pleaded not Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:33:13 +0530 FIR No.679/2021 PS Nangloi Page No.3/39 State V. Krishan guilty and claimed trial.
PROSECUTION EVIDENCE
6. Prosecution was then called upon to substantiate its case by examining its witnesses. The prosecution in support of its case had examined five witnesses. The prosecution had examined the following witnesses:-
(1) PW-1 HC Naveen
(2) PW-2 Sh. Pawan Kumar
(3) PW-3 ASI Dinesh Kumar
(4) PW-4 Dr. Swati
(5) PW-5 Retired SI Gulab Singh
DOCUMENTARY EVIDENCE RELIED UPON BY THE PROSECUTION
7. (1) Arrest memo of the accused Ex.PW-1/A (2) Personal search memo of the accused Ex.PW-1/B (3) Disclosure statement of the accused Ex.PW-1/C (4) Complaint of the complainant Ex.PW-2/A Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:33:22 +0530 FIR No.679/2021 PS Nangloi Page No.4/39 State V. Krishan (5) Tax invoice of Realme mobile phone Ex.PX1 (6) FIR Ex.PW-3/A (7) Endorsement on rukka Ex.PW-3/B (8) Certificate u/s 65-B of Indian Evidence Act Ex.PW-3/C (9) MLC No. 18873 of the complainant Ex.PW-4/A (10) MLC No. 18872 of the accused Ex.PW-4/B (11) Rukka Ex.PW-5/A (12) Site plan Ex.PW-5/B
8. TESTIMONIES OF PROSECUTION WITNESSES
(i) PW-1 in his testimony had deposed that on 23/09/2021, he had joined the investigation of the present case and on that day, complainant Pawan had brought the accused and in his presence, IO/SI Gulab Singh got the FIR registered and thereafter, interrogated the accused and after interrogation, IO had effected the arrest of accused vide arrest memo Ex.PW-1/A, conducted his personal search vide memo Ex.PW-1/B and also Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:33:32 +0530 FIR No.679/2021 PS Nangloi Page No.5/39 State V. Krishan recorded his disclosure statement Ex.PW-1/C. During the investigation, efforts were made for the search of weapon of offence i.e. blade but in vain. In his presence, IO had also prepared the rough site plan at the instance of the complainant and pointing out memo at the instance of the accused and thereafter, accused was sent to JC. IO had recorded his statement in this regard.
PW-1 was cross-examined by counsel for the accused.
(ii) PW-2 in his testimony had deposed that on 23/09/2021 at or about 8 AM, he was present at Kirari Mod near Nangloi Metro Station and was waiting for the bus as he had to go to New Delhi and in the meantime, bus route no. 966 came to the said stand and he tried to board the said bus and while he was boarding the said bus, two boys were standing near him and out of the said two boys, one of the boys picked his mobile phone make Realme having Dual SIM, from his pocket and the second offender pushed him. When he agitated the offender who robbed Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:33:41 +0530 FIR No.679/2021 PS Nangloi Page No.6/39 State V. Krishan his mobile phone, then he handed over his mobile phone to his accomplice, who had given push to him. Thereafter, the offender who robbed the mobile phone from his possession, suddenly took out one blade from his pocket and struck the said blade over his right hand and due to the impact of the said injury, he bleeded from his right hand and in the meantime, both the offenders started running away. He gathered courage and chased the said offender and he managed to apprehend accused Krishan who snatched his mobile phone and caused injury with blade over his right hand. Thereafter, he tried to take accused Krishan to police station and on the way accused Krishan caused injury over his head with the said blade and even then, he managed to take accused Krishan to the police station and produced accused before the police. In the police station, one police official recorded his statement Ex.PW-2/A. The accomplice of accused Krishan managed to run away alongwith his mobile phone and his mobile phone has not been recovered till date. During the course of investigation, he had accompanied IO to the place of occurrence and pointed out the place of commission of offence Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:33:49 +0530 FIR No.679/2021 PS Nangloi Page No.7/39 State V. Krishan and IO had prepared rough site plan at his instance. He was also got medically examined at Sanjay Gandhi hospital and during treatment, he had received five stitches over his right hand. IO had effected the arrest of accused Krishan vide arrest memo Ex.PW-1/A, conducted his personal search vide memo Ex.PW-1/B and also recorded the disclosure statement Ex.PW-1/C. During the course of investigation, he had also produced the Tax invoice Ex.PX1 of his mobile, which is in the name of his colleague Ashu Singh.
PW-2 was cross-examined by counsel for the accused.
(iii) PW-3 in his testimony had deposed that on 23/09/2021, he was on duty as Duty Officer and on that day, at about 11:55 AM, SI Gulab brought a rukka and on the basis of said rukka, he went to computer room and got FIR No. 679/2021 Ex.PW-3/A registered through computer operator and he also made endorsement on rukka Ex.PW-3/B and also issued certificate u/s 65-B of Indian Evidence Act Ex.PW-3/C. After Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:33:57 +0530 FIR No.679/2021 PS Nangloi Page No.8/39 State V. Krishan registration of the FIR, he had handed over copy of FIR and original rukka to SI Gulab for investigation purposes.
PW-3 was not cross-examined by counsel for the accused despite opportunity.
(iv) PW-4 in her testimony had deposed that she was working as CMO at Sanjay Gandhi memorial hospital since 2014. On 23/09/2021 at about 9:40 am, patient namely Pawan was brought to hospital by police in casualty for medical examination with complaint of alleged history of physical assault and on examination, patient was found to be conscious and oriented and his vitals were found to be stable and patient was not having any history of chronic illness. On local examination, there was laceration over right hand which was admeasuring about 5x.2x.2 cm approximately and she gave medication to the patient and prepared the MLC No. 18873 dated 23/09/2021 Ex.PW-4/A. On the same day at about 9:30 am, another patient i.e. accused Krishan was brought to the casualty by police for medical examination with alleged history of snatching and self Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:34:05 +0530 FIR No.679/2021 PS Nangloi Page No.9/39 State V. Krishan inflicted wound as told by the patient. On examination, patient was found to be conscious and oriented and his vitals were found to be stable and on local examination, there was laceration over the right occipital region admeasuring about 2x0.5 cm approximately, abrasion over left parietal region admeasuring about 8x0.1x0.1 cm approximately, abrasion over right parietal region admeasuring about 8x0.1x0.1 cm approximately and 5x0.1x0.5 cm approximately and there was abrasion over mid parietal region admeasuring about 7x0.1x0.5 cm approximately.
After giving necessary medication, she prepared the MLC No. 18872 dated 23/09/2021 Ex.PW-4/B. PW-4 was cross-examined by counsel for the accused.
(v) PW-5 in his testimony had deposed that on 23/09/2021, he was on emergency duty and at around 8 AM, the complainant Pawan Kumar had produced one person namely Krishan before him and disclosed that the said person had committed robbery of his mobile phone when he was boarding the bus and he recorded the complaint/statement of the complainant Ex.PW-2/A. On the basis Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:34:15 +0530 FIR No.679/2021 PS Nangloi Page No.10/39 State V. Krishan of the said complaint, he prepared the rukka Ex.PW-5/A and produced before the Duty Officer for the registration of FIR. In the meantime, the complainant and the accused were sent to Sanjay Gandhi hospital for their medical examination through HC Balraj and after the return of accused to the PS, he had formally interrogated the accused and effected his arrest vide arrest memo Ex.PW-1/A, conducted his personal search vide memo Ex.PW-1/B and also recorded the disclosure statement of the accused Ex.PW-1/C. He also visited the spot of incident alongwith the complainant and prepared the site plan Ex.PW-5/B. He also searched for the weapon i.e. blade, however, the same could not be found. He also made efforts to search the co- accused but he could not be found as the accused did not disclose the complete address of the co-accused. During the investigation, he had obtained the invoice/bill Ex.PX-1 of the robbed mobile phone. After completion of the investigation and recording of statements of the witnesses, he prepared the charge-sheet and filed the same in concerned Court.
PW-5 was cross-examined by counsel for the accused.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:34:23 +0530 FIR No.679/2021 PS Nangloi Page No.11/39 State V. Krishan STATEMENT OF THE ACCUSED U/S 313 CR.P.C.
9. Separate statement of the accused Krishan was recorded u/s. 313 Cr.P.C. wherein he denied the allegations against him and rebutted the prosecution evidence against him and claimed that he is innocent and has been falsely implicated in this case and he has no connection with the commission of offence of the present case. It was also stated that he was not present at the spot at the time of incident and he had not committed any robbery nor caused any injury to the complainant. It was also stated that he was beaten by the police without any reason and he has been falsely implicated by the police in the present case at the instance of the complainant. It was also stated that he does not want to lead evidence in his defence.
DEFENCE EVIDENCE
10. In the present case, accused Krishan had not led defence evidence.
FINAL ARGUMENTS
11. This Court heard the final arguments advanced by Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:34:31 +0530 FIR No.679/2021 PS Nangloi Page No.12/39 State V. Krishan Ld. Addl. PP for the State and Ld. Legal Aid Counsel for the accused Krishan and carefully perused the entire record including the testimonies on record.
During the course of final arguments, it was submitted by Addl. PP for the State that the prosecution witnesses have duly supported the case of the prosecution and from the testimonies of prosecution witnesses and the documentary evidence relied upon by the prosecution, the prosecution has been able to prove its case against the accused beyond reasonable doubt and accused Krishan be convicted for the offences as mentioned in the charge. On the other hand, during the course of final arguments, it was submitted by counsel for the accused Krishan that the accused has been falsely implicated in the present case and there is no incriminating evidence on record against the accused and the prosecution has failed to prove its case against the accused beyond reasonable doubt and the accused Krishan be acquitted in the present case.
In order to bring home conviction the prosecution has to show on record an unbroken chain of events leading to Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:34:40 +0530 FIR No.679/2021 PS Nangloi Page No.13/39 State V. Krishan commission of actual offence. Further, it 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.
12. It was held by Hon'ble Supreme Court of India in case titled as "Sharad Birdhi Chand Sarda Vs. State of Maharashtra", {AIR 1984 SC 1622} that following conditions must be fulfilled for successful prosecution of the accused:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:34:53 +0530 FIR No.679/2021 PS Nangloi Page No.14/39 State V. Krishan
13. 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 not 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:35:01 +0530 FIR No.679/2021 PS Nangloi Page No.15/39 State V. Krishan 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."
14. 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- 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:35:16 +0530 FIR No.679/2021 PS Nangloi Page No.16/39 State V. Krishan 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 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:35:27 +0530 FIR No.679/2021 PS Nangloi Page No.17/39 State V. Krishan 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 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:35:36 +0530 FIR No.679/2021 PS Nangloi Page No.18/39 State V. Krishan 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, people 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:35:46 +0530 FIR No.679/2021 PS Nangloi Page No.19/39 State V. Krishan 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 inconsistent 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".
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:35:57 +0530 FIR No.679/2021 PS Nangloi Page No.20/39 State V. Krishan
15. FINDINGS
(i) Testimony of complainant/injured In the present case, charge for the offence u/s. 392/394/34/397 IPC was framed against the accused Krishan.
It is the case of the prosecution that on 23/09/2021 at about 8:00 AM, at Kirari Mod near Nangloi Metro Station, New Delhi within the jurisdiction of Police Station Nangloi, accused Krishan and his associate Manoj (yet not arrested) in furtherance of their common intention had committed the robbery of mobile phone make Realme RMX 2030 from the possession of the complainant Pawan Kumar and while committing the robbery of mobile phone, accused Krishan had used the deadly weapon i.e. blade and caused the injury to the complainant with blade.
PW-2 is the complainant/injured in the present case. The sanctity of testimony of injured witness has been elaborated by the Hon'ble Supreme Court of India in case titled as "Abdul Sayeed Vs. State of MP" {(2010) 10 SCC 259} Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:36:06 +0530 FIR No.679/2021 PS Nangloi Page No.21/39 State V. Krishan and it was held that:-
"26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness.......
28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein".
PW-2 in his testimony has categorically, elaborately and graphically described as to how the offence was committed Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:36:16 +0530 FIR No.679/2021 PS Nangloi Page No.22/39 State V. Krishan by the accused Krishan and his associate Manoj (yet not arrested) at the relevant time, date and place.
PW-2 in his testimony had deposed that on 23/09/2021 at or about 8 AM, he was present at Kirari Mod near Nangloi Metro Station and was waiting for the bus as he had to go to New Delhi and in the meantime, bus route no. 966 came to the said stand and he tried to board the said bus and while he was boarding the said bus, two boys were standing near him and out of the said two boys, one of the boys picked his mobile phone make Realme having Dual SIM, from his pocket and the second offender pushed him. He had also deposed that when he agitated the offender who robbed his mobile phone, then he handed over his mobile phone to his accomplice, who had given push to him. He had also deposed that thereafter, the offender who robbed the mobile phone from his possession, suddenly took out one blade from his pocket and struck the said blade over his right hand and due to the impact of the said injury, he bleeded from his right hand and in the meantime, both the offenders started running away. He had also deposed that he gathered courage and chased Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:36:25 +0530 FIR No.679/2021 PS Nangloi Page No.23/39 State V. Krishan the said offender and he managed to apprehend accused Krishan who snatched his mobile phone and caused injury with blade over his right hand. He had also deposed that thereafter, he tried to take accused Krishan to police station and on the way accused Krishan caused injury over his head with the said blade and even then, he managed to take accused Krishan to the police station and produced accused before the police. He had also deposed that the accomplice of accused Krishan managed to run away alongwith his mobile phone and his mobile phone has not been recovered till date.
Complainant/injured/PW-2 has duly supported the case of the prosecution. Complainant/injured/PW-2 in his testimony had duly proved on record the complaint Ex. PW-2/A, on the basis of which, the present case FIR was got registered.
Complainant/injured/PW-2 in his complaint Ex.PW-2/A has specifically mentioned the name of the accused Krishan. Name of the accused Krishan has also been specifically mentioned in the FIR Ex.PW-3/A. The contents of complaint Ex.PW-2/A and FIR Ex.PW-3/A have been duly proved on record and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:36:40 +0530 FIR No.679/2021 PS Nangloi Page No.24/39 State V. Krishan corroborated by the complainant/injured/PW-2 and other prosecution witnesses.
Testimony of complainant/injured/PW-2 is corroborated with the testimonies of other prosecution witnesses and documentary evidence relied upon by the prosecution.
There is nothing on the record to disbelieve the testimony/version of complainant/injured/PW-2. In the cross-
examination of PW-2, 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 and PW-5 during the course of their testimonies had duly identified the accused Krishan. PW-1, PW-2 and PW-5 in their testimonies have specifically mentioned the name of the accused Krishan. Arrest memo Ex.PW-1/A, personal search memo Ex.PW-1/B and disclosure statement Ex.PW-1/C of the accused Krishan are also bearing the signatures of PW-1, PW-2 and PW-5. Counsel for the accused Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:36:48 +0530 FIR No.679/2021 PS Nangloi Page No.25/39 State V. Krishan Krishan had not put any question in the cross-examination of PW-1, PW-2 and PW-5 to dispute the identity of the accused Krishan. Hence, identity of the accused Krishan is duly established by the prosecution.
(iii) Presence of the accused PW-2 in his testimony has specifically deposed that the accused Krishan was present at the place of incident at the relevant time and date. Counsel for the accused Krishan had not put any question in the cross-examination of the PW-2 to dispute the presence of the accused Krishan at the place of incident at the relevant time and date. Hence, presence of the accused at the place of the incident at the relevant time and date is duly established by the prosecution.
(iv) Medical witness PW-4 is the medical witness in the present case, who had examined the complainant/injured and accused Krishan and prepared the MLC of complainant/injured Ex.PW-4/A and Digitally MLC of the accused Krishan Ex.PW-4/B. signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:37:01 +0530 FIR No.679/2021 PS Nangloi Page No.26/39 State V. Krishan PW-4 in her testimony had deposed that on local examination, there was laceration over right hand which was admeasuring about 5x.2x.2 cm approximately and she gave medication to the patient and prepared the MLC No. 18873 dated 23/09/2021 Ex.PW4/A. MLC Ex.PW-4/A of the complainant/injured has been duly proved on record by the aforesaid medical witness.
There is nothing on the record to disbelieve the testimony/version of the aforesaid medical witness. In the cross-
examination of the aforesaid medical witness, no material contradiction/inconsistency has been surfaced or pointed out.
(v) Testimonies of police witnesses In the present case, PW-1, PW-3 and PW-5 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.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:37:08 +0530 FIR No.679/2021 PS Nangloi Page No.27/39 State V. Krishan PW-5 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.
16. CONTENTIONS OF COUNSEL FOR THE ACCUSED
(a) During the course of final arguments, it was submitted by counsel for the accused Krishan that as per case of the prosecution, the weapon of offence i.e. blade was used by the accused Krishan at the time of commission of offence but the blade is not deadly weapon to attract the offence under Section 397 IPC. On the other hand, it was submitted by Addl. PP for the State that in the present case, in view of the testimonies of prosecution witnesses, ingredients of the offence u/s 392/394/34/397 IPC are attracted.
It is the case of the prosecution that on 23/09/2021 at about 8:00 AM, at Kirari Mod near Nangloi Metro Station, New Delhi, accused Krishan and his associate Manoj (yet not arrested) Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:37:16 +0530 FIR No.679/2021 PS Nangloi Page No.28/39 State V. Krishan in furtherance of their common intention had committed the robbery of mobile phone make Realme RMX 2030 from the possession of the complainant Pawan Kumar and while committing the robbery of mobile phone, accused Krishan had used the deadly weapon i.e. blade and caused the injury to the complainant with blade.
PW-2 in his testimony had deposed that at the relevant time, date and place, accused Krishan had robbed his Realme mobile phone and the second offender pushed him and when he agitated, accused Krishan had handed over his robbed mobile phone to his associate and the accused Krishan took out one blade from his pocket and struck the same over his right hand and he bleeded from his right hand and he chased and apprehended accused Krishan and the associate of the accused managed to run away alongwith robbed mobile phone.
PW-2 in his examination-in-chief had deposed that accused Krishan had caused injury to him with blade over his right hand and he had received five stitches over his right hand. In the MLC Ex.PW-4/A of the complainant/injured/PW-2, it is Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:37:25 +0530 FIR No.679/2021 PS Nangloi Page No.29/39 State V. Krishan mentioned that suturing was done. PW-4 in her testimony had deposed that on 23/09/2021, the complainant/injured/PW-2 was medically examined and on local examination, there was laceration over right hand which was admeasuring about 5x.2x.2 cm approximately and she prepared the MLC Ex.PW-4/A. PW-2 in his testimony had also deposed that the accused had also caused injury to himself with weapon of offence i.e. blade.
Nature of self injury sustained by the accused has been mentioned in his MLC Ex.PW-4/B. It is well settled law that whether the weapon of offence is deadly or not, is a question of fact which would depend on the nature of weapon used in the offence and injury, if any, sustained by the injured. It is also well settled law that even if the weapon of offence is shown after robbery/snatching, offence u/s 397 IPC is attracted.
In view of the nature of injury caused by the accused Krishan with weapon of offence i.e. blade to the complainant/injured/PW-2 as well as self injury inflicted by the accused with the said blade, it is clear that the weapon of offence Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:37:32 +0530 FIR No.679/2021 PS Nangloi Page No.30/39 State V. Krishan i.e. blade was sharp enough to cause injury and same is a deadly weapon to attract the offence under Section 397 IPC.
Hence, the contention of counsel for the accused Krishan in this regard is not tenable.
(b) During the course of final arguments, it was submitted by counsel for the accused Krishan that in the present case, no independent public witness was asked to join the investigation by the IO and in view of the same, benefit of doubt be given to the accused.
It is well settled law that non-joining of public witness in the investigation is not fatal in every case. In the present case, complainant/injured/PW-2 was joined in the investigation of the present case. Hence, the contention of counsel for the accused Krishan in this regard is not tenable.
(c) During the course of final arguments, it was submitted by counsel for the accused Krishan that in the present case, robbed mobile phone and weapon of offence i.e. blade were Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:37:46 +0530 FIR No.679/2021 PS Nangloi Page No.31/39 State V. Krishan not recovered and in view of the same, benefit of doubt be given to the accused.
It is well settled law that non-recovery of robbed article and weapon of offence is not fatal in every case. Hence, the contention of counsel for the accused Krishan in this regard is not tenable.
(d) It is the contention of counsel for the accused that PW-2 in his examination-in-chief had deposed that on 23/09/2021 at or about 8:00 AM, he was present at the spot and on the other hand, PW-2 in his cross-examination had deposed that on that day, he left his house on or about 8:00 AM and PW-5 in his examination-in-chief had deposed that at about 8:00 AM, the complainant produced the accused Krishan before him and the aforesaid contradictions in respect of time are material contradictions and in view of the same, benefit of doubt be given to the accused. On the other hand, during the course of final arguments, it was submitted by Addl. PP for the State that the aforesaid contradictions as pointed out by counsel for the accused Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:37:53 +0530 FIR No.679/2021 PS Nangloi Page No.32/39 State V. Krishan are not material contradictions.
It was held in Akbar case (Supra) that a witness cannot be expected to possess a photographic memory and to recall the details of an incident and it is not as if a video tape is replayed on the mental screen and witness cannot accurately recall a conversation and reproduce the very words used by him or heard by him and he can only recall the main purport of the conversation and it is unrealistic to expect a witness to be a human tape recorder. It was also held that in regard to exact time of an incident, or the time duration of an occurrence, usually, people 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 and it depends on the time-sense of individuals which varies from person to person.
Even otherwise, the aforesaid contradictions as pointed out by counsel for the accused are not material contradictions. In the testimonies of prosecution witnesses, no material contradiction and inconsistency has been surfaced Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:38:01 +0530 FIR No.679/2021 PS Nangloi Page No.33/39 State V. Krishan except some minor ones which are but natural. Hence, the contention of counsel for the accused Krishan in this regard is not tenable.
(e) It is the contention of counsel for the accused Krishan that IO had not investigated the present matter properly and in view of the same, benefit of doubt be given to the accused.
On the other hand, it was submitted by Addl. PP for the State that IO had properly investigated the present matter. 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 (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..."
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:38:08 +0530 FIR No.679/2021 PS Nangloi Page No.34/39 State V. Krishan Hence, the contention of counsel for the accused Krishan in this regard is not tenable.
(f) It is also the contention of counsel for the accused Krishan that there are material contradictions and inconsistencies in the testimonies of prosecution witnesses and in view of the same, benefit of doubt to be given to the accused. On the other hand, during the course of final arguments, it was submitted by Addl. PP for the State that there is no material contradiction in the testimonies of prosecution witnesses.
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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:38:16 +0530 FIR No.679/2021 PS Nangloi Page No.35/39 State V. Krishan prosecution case should not be made a ground 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 counsel for the accused Krishan in this regard is not tenable.
17. In the present case, mode & manner of offence, nature of injury sustained by the complainant/injured, weapon of offence, motive, intention and knowledge are relevant factors. The aforesaid factors have been duly proved on record by the prosecution.
In the present case, PW-2 in his testimony has Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:38:24 +0530 FIR No.679/2021 PS Nangloi Page No.36/39 State V. Krishan specifically deposed regarding the mode and manner in which the accused and his associate had committed the offence.
The testimony of complainant/injured/PW-2 is corroborated with the testimonies of other prosecution witnesses as well as documentary evidence relied upon by the prosecution.
In the present case, no defence evidence had been led by the accused Krishan in support of his defence and to rebut and contradict the case of the prosecution.
18. All the essential ingredients of the offence u/s. 392/394/34/397 IPC have been duly proved on record from the testimonies of prosecution witnesses and documentary evidence relied upon by the prosecution.
The prosecution has also been able to prove the fact that on 23/09/2021 at about 8:00 AM, at Kirari Mod near Nangloi Metro Station, New Delhi, accused Krishan and his associate Manoj (yet not arrested) in furtherance of their common intention had committed the robbery of mobile phone make Realme RMX 2030 from the possession of the complainant Pawan Kumar and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:38:32 +0530 FIR No.679/2021 PS Nangloi Page No.37/39 State V. Krishan while committing the robbery of mobile phone, accused Krishan had used the deadly weapon i.e. blade and caused the injury to the complainant with blade.
19. CONCLUSION Applying priori and posteriori reasonings, this Court is held that on 23/09/2021 at about 8:00 AM, at Kirari Mod near Nangloi Metro Station, New Delhi, accused Krishan and his associate Manoj (yet not arrested) in furtherance of their common intention had committed the robbery of mobile phone make Realme RMX 2030 from the possession of the complainant Pawan Kumar and while committing the robbery of mobile phone, accused Krishan had used the deadly weapon i.e. blade and caused the injury to the complainant with blade.
In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has been successful to prove its case against the accused Krishan beyond reasonable doubt for the offence under section 392/394/34/397 IPC. This Court is held that the accused Krishan has committed the offence Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 06:38:46 +0530 FIR No.679/2021 PS Nangloi Page No.38/39 State V. Krishan punishable under section 392/394/34/397 IPC. Accordingly, accused Krishan is convicted for the offence under section 392/394/34/397 IPC.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.07.27 Announced in the open Court 06:38:54 +0530 on 27/07/2024 (VIJAY SHANKAR) ASJ-04 (West) Tis Hazari Courts, Delhi FIR No.679/2021 PS Nangloi Page No.39/39