Delhi District Court
State vs 1. Tarun @ Mota on 18 February, 2020
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
Sessions Case No. : 2543 of 2019
State Versus 1. Tarun @ Mota
S/o Sh. Kashi Nath
R/o H.No. 81, Sunder Park,
Behind Vaishali School,
Shastri Nagar, Delhi.
2. Lalit @ Chuhiya
S/o Sh. Ved Prakash
R/o H.No. 70A, Gali No.1,
Sarojini Naidu Park,
Shastri Nagar, Delhi.
FIR No. : 120/19
Under Section : 392/397/411/34 IPC &
25/27 Arms Act
Police Station : Geeta Colony
Chargesheet Filed On : 15.07.2019
Chargesheet Allocated On : 20.07.2019
Chargesheet received by this Court on: 24.07.2019
Judgment Reserved On : 15.02.2020
Judgment Announced On : 18.02.2020
SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15
JUDGMENT:
1. The brief facts of the prosecution case are that on receipt of DD no.41B by ASI Ashok Kumar, FIR no. 118/19 was recorded on statement of Mohd. Zakir and separate case of present FIR no.120/19 was recorded on statement of complainant Mukarram regarding robbery committed by two assailants who came on a motorcycle and robbed of their money of Rs.5,500/ and Rs.500/ respectively on the point of knife by putting the same on their necks. During search, heavy built boy (accused Tarun @ Mota) was apprehended by two police officials just ahead of SDM Office. Statement of complainant was recorded.
2. On the basis of statement of complainant Mukarram, the case u/s 392/397/411/34 IPC and 25/27 Arms Act was registered. Site plan was prepared. Accused Tarun @ Mota was arrested at the spot and accused Lalit was also arrested. On conclusion of the investigation, chargesheet was filed against the accused before the court of ld. MM for the offences punishable under Sections 392/397/411/34 IPC and 25/27 Arms Act.
3. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Sec. 397 IPC was exclusively triable by it.
4. Vide order dated 02.08.2019, charge under Section 392/34 r/w Section 397 IPC was framed against both accused persons. Vide said order, separate charge under Sec. 411 IPC was framed against accused Tarun @ SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 Mota and another charge under Sec. 25/54/59 Arms Act was also framed against accused Tarun @ Mota. To the said charges, both accused pleaded not guilty and claimed trial.
5. The Prosecution in support of its case examined six witnesses in all.
PW1 Mukarram, complainant/victim of present case who narrated the entire incident of robbery by stating that on 16.05.2019 at about 5.30 pm, when he was going to Mayur Vihar from Rani Garden via Pusta road and was standing at the crossing of Taj Enclave, two boys came from his behind side and one of them having heavy built, put knife on his neck and other thin boy took out cash of Rs.500/ from pocket of his wearing pant and after robbing him on the point of knife, both boys ran away from underpass bridge. While search of accused persons, one person named Zakir also met him who was raising alarm for help as he was also robbed of his money by the assailants. PW1 further stated that in the meantime, two police officials came there and apprehended one boy of heavy built (accused Tarun @ Mota) however, another boy fled away from there and his robbed money of Rs.500/ was recovered from the possession of said boy. PW1 also proved his statement Ex.PW1/A and on his pointing out IO prepared site plan Ex.PW1/B. This witness correctly identified both accused persons as well as weapon of offence and recovered money.
PW2 Ct. Kuldeep is the witness of arrest memos and disclosure statements of both accused persons vide Ex.PW2/A to PW2/D. SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 PW3 Ct. Dinesh is the witness of apprehension as well as recovery of robbed money and one buttondar knife which were recovered from the possession of accused Tarun @ Mota. PW3 also stated that another case was also registered on the complaint of another complainant Mohd. Zakir vide FIR No. 118/19.
PW4 Mohd. Zakir is the complainant/victim of case FIR no. 118/19 who was also robbed of his money of Rs.5,500/ on the point of knife by both accused persons on 16.05.2019 and accused Tarun @ Mota was apprehended by police officials and from his possession, one buttondar knife was recovered.
PW5 ASI Ashok Kumar is the investigating officer and has conducted entire proceedings of present case. He has also proved his endorsement Ex.PW5/A on the statement of complainant Mukarram and seizure memo of buttondar knife recovered from accused Tarun @ Mota vide Ex.PW5/B. PW6 ASI Nadir Khan is the investigating officer of case FIR no. 118/19. He stated that on the instructions of ld. M.M. concerned, present FIR no. 120/19 was registered on the complaint of complainant Mukarram. PW6 further stated that on 20.05.2019, ASI Ashok arrested coaccused Lalit @ Chuhiya in present case.
6. In their joint statement u/s 294 CrPC dated 11.12.2019, both accused persons admitted the following documents :
(1) FIR alongwith endorsement and Certificate u/s 65B of Indian Evidence SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 Act Ex.C1 (colly.) to be proved by PW/Duty Officer ASI Suraj Bhan;
(2) DD no. 41B dated 16.05.2019 Ex.C2 to be proved by PW Ct. Mahender;
(3) MHC(M) with register no.19 and 21.
7. The statement of both accused persons was recorded under Section 313 CrPC in which they denied all the incriminating circumstances against them. They pleaded their innocence and further pleaded their false implication. Accused Tarun @ Mota stated that he was lifted by the police from near Chcha Nehru Hospital when he alongwith Lalit were coming back from Gandhi Nagar for purchasing clothes and then implicated in this case falsely as police officials arrested him in a false Arms Act case earlier and at that time, he abused them so they have enmity with him. He stated that nothing has been recovered from his possession at any point of time or at his instance. Accused Lalit stated that he was lifted by police from his house. Neither of these accused persons opted to lead any evidence in their defence nor claimed over the recovered case property.
8. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges through evidence of witnesses and recovery effected. He argued that there is no reason to disbelieve the testimony of PW1 Mukarram, which is cogent and credible. He argued that accused persons failed to give any reasonable account for their false implication. He submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of both accused stands fully SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 established. Ld. Addl. P.P., therefore, prayed for conviction, as per charges framed.
9. Per contra, ld. defence counsel argued the matter at length and also draw the attention of the court to the contradictions and improvements in the statements of the prosecution witnesses. One of the contentions of the ld. defence counsel is that if case of the prosecution case is taken as gospel truth, even then no public witnesses were examined who were also present at the time of the alleged crime. It is further argued that the police officials did not make any sincere efforts to cite any witness from the public at the time of apprehension of accused persons and other proceedings. All the witnesses as cited by the prosecution are police officials and are interested witnesses and there are material contradictions. Ld. defence counsel prayed for acquittal of the accused persons submitting that prosecution case is full of doubts.
10. Rival submissions considered and material on record have been perused in view of the law on the issue in question.
11. Admittedly, the star and key witnesses of the present prosecution case is PW1 Mukarram, the complainant/victim. He in clear and unequivocal terms stated that on the date and time of the incident PW1 was robbed by the accused persons. PW2 further stated that accused Tarun @ Mota is the same person who was apprehended by two police officials just after the robbery incident and from whose possession his cash of Rs.500/ was recovered. To facilitate the matter, testimony of SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 complainant/PW1 Mukarram is hereby reproduced as :
".....On 16.05.2019, I was residing at the abovesaid Delhi address alone and my family used to reside at Bijnore and I was working as barber in a shop at Mayur Vihar, PhaseI. On that day at about 5.30 pm, I was going to Mayur Vihar from Rani Garden via Pusta road and I was standing at the crossing of Taj Enclave. In the meantime, two boys came from my behind side and one of them having heavy built, put a knife on my neck and other assailant took out cash of Rs.500/ from pocket of my wearing pant. I became scared due to said incident as heavy built boy put knife on my neck and other one was thin and after robbing me on the point of knife, both boys ran away from underpass bridge. Thereafter, I was searching both accused persons, in the meantime, I saw one public person namely Zakir who was raising alarm for help as he was also robbed his money by assailants. In the meantime, two police officials came there and apprehended one boy who was having heavy built (Witness pointed out towards accused Tarun @ Mota present in the court today) and another boy had fled away from there. At the time of apprehension of accused Tarun @ Mota. He was searched by the police officials and got recovered my robbed money of Rs.500/. At the time, I pointed out towards accused Tarun @ Mota who robbed me on the point of knife by putting the same on my neck..."
12. Perusal of the above, it is clear that victim/PW1 Mukarram narrated the incident and identified the accused as responsible for the crime committed upon him. Now the court has to see evidentiary value of the said witness.
13. As regard the contention of ld. defence counsel that testimony of PW1 Mukarram, the complainant/victim is full of improvements and SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 contradictions, ld. defence counsel failed to point out any such improvement and contradiction which may go to the root of the case. Besides the above, it is also well settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. Minor discrepancies in the statements of witnesses are of no help to the accused. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
14. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Hon'ble Apex Court observed that :
"In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
15. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra, (Crl. A. 2526/2000) the Hon'ble Apex Court held as under :
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations differ from person SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.
xxxx There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of 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 embellishment, 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."
16. It is admitted fact that the parties were not known to each other prior to the date of incident. There is no reason for false implication of the accused at the hands of the complainant/victim. Rather, the complainant/ victim would be the most interested person to see the actual culprit behind the bars.
17. In case reported as Deepak & Ors Vs. State, 2015 VII AD (Delhi) 140, Hon'ble Court has observed as :
"testimony of injured witness reveals that material facts stated by him in examinationinchief have remained unchallenged and uncontroverted in crossexamination - no ulterior motive assigned to victim for falsely implicating them for serious injuries sustained by him in SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 incident when there was no previous animosity - victim not expected let real offenders go scot free and implicate his friend - xxxx- inconsistent defence led by appellant, to set up plea of alibi, - FIR lodged without delay least possibility of victim to concoct false story in such short period - no bar to base conviction on sole testimony of injured if it inspires confidence."
18. With these observations, as discussed above, nothing has come on record which may even remotely suggest that testimony of the complainant/victim suffers from any material contradiction and/or improvement.
19. Contention of ld. defence counsel that noncitation and non examination of any other public witness present at the spot is of no value as it is not the number of witnesses which is material rather it is the quality of the evidence which counts. For this, reference is taken with a judgment reported as Kishan Chand Vs State of Haryana, JT 2013 (1) SC 222.
20. It is well settled law that the prosecution has to prove its case beyond all reasonable doubts. Both accused persons have been charged for the offences punishable under Sec. 392/34 r/w Sec. 397 IPC; accused Tarun @ Mota is charged separately for the offences under Sec. 411 IPC and 25/54/59 Arms Act.
21. First of all, the court shall deal with the offence punishable under Sec. 392/34 IPC r/w Sec. 397 IPC.
22. Qua offence punishable under Sec. 397 IPC, it is clear that while PW1 Mukarram appeared before the court, during his examination SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 inchief clearly stated that his currency note of Rs.500/ was recovered from the possession of accused Tarun @ Mota which was robbed on the point of knife from him. PW1 further stated that apart from currency note of Rs.500/, knife used in the crime was also recovered from the possession of accused Tarun @ Mota. PW4 Mohd. Zakir also narrated on the same lines as deposed by PW1. They are the only witnesses to depose about the fact that whether any weapon was used in the crime of robbery and if so, which one was that. PW1 clearly stated that the knife was put on his neck by accused Tarun @ Mota while robbery with him which is not sufficient to bring home the guilt of the accused under Sec. 397 IPC. However, this witness in clear and unequivocal terms stated that the accused persons are responsible for the crime of robbery committed upon.
23. With the above discussion, it is clear that the complainant in clear terms stated that he was robbed at the hands of both accused persons.
24. Hence, with these observations and discussed the matter above, the court is of the view that has come to the conclusion that prosecution has failed to prove its case against the accused for the offence punishable under Section 397 IPC and as such, accused Tarun @ Mota and Lalit @ Chuhiya are acquitted of the offence punishable under Sec. 397 IPC but both accused persons are held guilty for the offence punishable under Sec. 392/34 IPC.
25. Now the court has to see the evidence brought on record for the offence punishable under Sec. 411 IPC for which accused Tarun @ Mota has been charged with.
SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15
26. To prove the said offence, the prosecution took help of PW1 Mukarram, PW3 Ct. Dinesh, PW5 ASI Ashok Kumar, PW5 ASI Nadir Khan. All these witnesses in clear terms stated that currency note of Rs.500/ was robbed and recovered from the possession of accused Tarun @ Mota. Same is Ex.P1.
27. As clear from the record, accused Tarun @ Mota has not claimed over the said property. All these witnesses in clear and unequivocal terms stated that currency note of Rs.500/ which was of the complainant/victim, was recovered and seized in their presence.
28. In Ronald Larks Goontha Vs. State of Rajasthan [1988 (2) Crimes 737], Hon'ble High Court of Rajasthan held as follows:
"that police officers are citizens and the public servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption under section114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence can not be discarded only on the ground that they are police officers."
29. In the judgment reported as Gurcharan Singh @ Channi & Another Vs. State (1993 (2) RCR (Criminal) 696, the Hon'ble High Court of Delhi after taking note of judgment of Hon'ble High Court of Rajasthan in Ronald Larks Goontha's case (supra) held as follows :
"There is no dispute with the said proposition of law that the statements of the police witnesses are entitled to the SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 same weight and the same consideration which is attached to the statement of a member of the public. However the impugned statement must inspire confidence to be relied upon in a particular case."
30. As such, it has fully proved on record that it was accused Tarun @ Mota who was found in possession of currency note of Rs.500/ belonging to complainant/victim Mukarram (PW1).
31. In the present matter, apart from the aforesaid sections, the accused has also been charged for the offence punishable under Sec. 25/54/59 Arms Act for the recovery of the knife.
32. To facilitate the matter, Section 25(1) Sub Section b of Arms Act described the acquisition, possession or carrying any article in contravention of the notification u/s 4 any arms of such class or description as has been specified in that notification in contravention of that section.
33. Besides the above, the prosecution has to prove its case beyond all reasonable doubts against accused Tarun @ Mota for the offence punishable under Section 25/54/59 Arms Act as it is not brought on record any notification in contravention of Section 4 of Arms Act nor any other independent witness cited qua the alleged recovery nor the testimony of prosecution witnesses has inspired any confidence in order to bring home the guilt of the accused to attract the provisions of Section 25 of Arms Act by examining any ocular and trustworthy evidence. As such, the prosecution failed to prove the guilt of the accused on this core. Hence, in view of the over all facts and circumstances, accused Tarun @ Mota is also acquitted for SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15 the offence under Section 25/54/49 Arms Act.
34. Sum up of the above discussion is that the prosecution has failed to prove its case beyond all reasonable doubts to bring home the guilt against the accused persons for the offence punishable under Sec. 397 IPC and as such :
(i) accused persons namely Tarun @ Mota S/o Kashi Nath and Lalit @ Chuhiya are acquitted for the offence punishable under Section 397 IPC and Sec. 25 Arms Act;
(ii) accused persons namely Tarun @ Mota S/o Kashi Nath and Lalit @ Chuhiya are held guilty for the offences punishable under Sec. 392/34 IPC as the prosecution has fully proved its case;
(iii) Apart from that, accused Tarun @ Mota S/o Kashi Nath is also held guilty for the offences punishable under Section 411 IPC and thus, are convicted accordingly.
Announced in the open Court Dated : 18th February, 2020 (Dr. Satinder Kumar Gautam) Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
SC No. 2543/19 State Vs. Tarun @ Mota Etc. Page No.: 15 of 15