Delhi District Court
State vs 1. Parveen Kumar on 5 September, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
Sessions Case No. : 1353 of 2018
State Versus 1. Parveen Kumar
S/o Sh. Basant
R/o C-150, Jawaharlal Nehru Camp
Govind Puri, Kalkaji, Delhi.
2. Mohd. Sahid Khan
S/o Mohd. Sabbir Khan
R/o B-354, Jawaharlal Nehru Camp
Govind Puri, Kalkaji, Delhi.
FIR No. : 20167/17
Under Section : 392/397/411/34 IPC
Police Station : Mayur Vihar
Chargesheet Filed On : 22.06.2018
Chargesheet Allocated On : 24.07.2018
Judgment Reserved On : 28.08.2019
Judgment Announced On : 05.09.2019
JUDGMENT
1. The brief facts of the prosecution case are that on 30.06.2017, complainant Nikhil Tomar got registered an e-FIR no. 20167/17 under Sec. 379 IPC regarding robbery of his motorcycle bearing registration no. UP- 16AZ-0093 make KTM Bajaj. Said Nikhil Tomar got lodged his complaint SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 1 of 22 with the police on 04.07.2017 inter alia alleging therein that on 29.06.2017 at about 10 p.m. while he was present near Crown Plaza Hotel on his motorcycle bearing registration no. UP-16AZ-0093 make KTM Bajaj. He got stopped his motorcycle on account of Red Light at that time. At that time he was busy with his phone, one motorcycle with two persons present on the same came near to him, and pillion rider of the same at the gun point robbed his said motorcycle and left the spot with his robbed motorcycle towards DND and then he made statement for the said incident/crime.
2. On the basis of said statement of complainant, present case under Sec. 392/397/34 IPC was registered and DD No. 22A dated 05.07.2017 was recorded to this effect. Site plan was prepared. RC of stolen motorcycle was obtained from the complainant and efforts were made to search the robbed motorcycle.
3. It is further case of the prosecution that on 29.04.2018, vide DD no.12-A, information regarding recovery of robbed motorcycle from the accused persons namely Sahid Khan and Praveen Kumar and their involvement in the present matter was recorded with Police Station Mayur Vihar on which production warrants were got issued and then accused persons Sahid Khan and Praveen Kumar were arrested in the present SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 2 of 22 case. Weapon of offence could not be recovered. During the proceedings, both accused persons refused to join the test identification parade proceedings. Victim identified the accused persons attributing their roles, while he had come to the Court for superdari purposes. On conclusion of the investigations, chargesheet against the above named accused persons was filed to face trial for the offence punishable under Sec. 392/397/411/34 IPC before the court of learned Metropolitan Magistrate.
4. After compliance of provisions of Sec. 207 CrPC by the court of learned Metropolitan Magistrate, case was committed to the Court of Sessions as Sec. 397 IPC is exclusively triable by it.
5. Vide order dated 02.08.2018, charge under Section 392/397/34 IPC and 411/34 IPC was framed against both accused persons to which they pleaded not guilty and claimed trial.
6. The Prosecution in support of its case examined eight witnesses in all.
PW-1 Ct. Arvind joined the investigations of this case on 28.04.2018 and is a witness to the arrest of the accused persons and recovery effected from them and also proved the memos prepared to that aspect as Ex.PW1/A to E. PW-4 HC Ram Bhran also toed on the lines of this witness further proving the memos Ex.PW4/A & B. SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 3 of 22 PW-2 ASI Rajender Singh, part Investigating Officer, recorded the statement of complainant/victim as Ex.PW2/A, put endorsement on the same and got the case registered. He also prepared site plan Ex.PW2/C. PW-3 Nikhil Tomar is the victim/complainant of present case who narrated the incident regarding robbery of his motorcycle bearing registration no. UP-16AZ-0093 make KTM RC 390 by two motorcyclists on the point of pistol and he lodged online E-FIR in this regard. Later on he made statement to the police. This witness identified both accused persons responsible for the crime in question.
PW-5 HC Rakam Singh is a witness to the arrest of accused persons in the present matter on 03.05.2017 pursuance to the productions warrants issued against them.
PW-6 Const. Pradeep Kumar joined the investigation of this case on 09.05.2018 and is a witness to the pointing out memo prepared at the instance of the accused persons.
PW-7 Const. Surender deposed that on 04.05.2018 he brought the robbed motorcycle of this case from PS Govindpuri to PS Mayur Vihr vide Ex.PW7/A. SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 4 of 22 PW-8 ASI Dinesh Tyagi, part investigating officer, proved the memos prepared in the present matter and filed the chargesheet against the accused persons.
During prosecution evidence, the accused persons in statement recorded under Sec. 294 CrPC do not dispute the contents of documents - Kalandara DD no.8 dated 28.04.2018; Statement of MHC(M), PS Mayur Vihar alongwith register no.19 and TIP proceedings of both accused persons as Ex.C1 (colly.).
Detailed testimony of the witnesses concerned shall be discussed at relevant time of judgment.
7. The statement of both accused persons was recorded under Section 313 CrPC in which they denied all the incriminating evidence put put to them. They pleaded their innocence and further pleaded their false implication.
8. Accused Praveen further pleaded that on 27.04.2018 police officials of Spl Staff came to his house and implicated falsely in cases after lifting him from his house.
SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 5 of 22
9. Accused Shahid further pleaded that one grocery shop owner of his area was having grudge against him as he (accused) used to park his vehicle against his wishes. He further pleaded that on 27.04.2018 while he was present outside his house in parking area, he got implicated him (accused) in various cases.
10. Neither of them claimed over case property nor opted to lead any evidence in their defence.
11. 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 the victim/complainant - PW-3, which is cogent and credible. Next contention of the ld. Addl. PP is that there is no reason for false implication of either of the accused persons at the hands of complainant/victim, particularly when they were strangers to each other and no ill-will, grudge or enmity has either been alleged or proved. Ld. Addl. PP for the State further argued that accused persons failed to give any reasonable account for their false implication. Ld. Addl. PP, therefore, prayed for conviction, as per law. He submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of both accused stands SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 6 of 22 fully established.
12. Ms. Rakhi Bharti, ld. defence counsel countered the arguments advanced by ld. Addl. PP submitting that prosecution case is shrouded with doubts as testimony of the prosecution witnesses is full of contradictions and improvements. Ld. defence counsel also argued that earlier e-FIR was only for theft and later on, for the reasons best known to the complainant, he improved his version by adding provisions of Sections of 392/397 IPC.
13. Next contention of the ld. defence counsel is that at the time of the alleged recovery, non joining of public persons despite ample opportunity creates doubt on the prosecution story and this all is an indication that accused persons have been implicated falsely. Ld. defence counsel prayed for acquittal of the accused persons.
14. I have carefully gone through the entire material on record and have considered the rival submissions of the parties in the light of the law laid down on the issues in question.
15. Record is crystal clear that accused persons are facing trial for two offences - one for robbery at the point of deadly weapon and another for recovery. Court shall discuss the case on these issues one by one. SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 7 of 22
16. For the offence of punishable under Section 392/397/34 IPC, prosecution has took help of PW-3 Nikhil Tomar, who is the star and key witness of the present prosecution case for the said offence allegedly committed by the accused persons. Admittedly, the said witness/complainant-victim has narrated the incident of robbery in chronological manner committed upon him.
17. To facilitate the matter, testimony of PW-3 Nikhil Tomar is reproduced as under:
"xxx I was going to ITO from my house on my motorcycle bearing no. UP-16AZ-0093 xxx At about 10 p.m. when I reached near Crown Plaza Hotel under NOIDA link road xxxx I was stopped there due to red light, in the meantime I received a call on my mobile phone and for hearing the said call, I took out my mobile, suddenly two boys came on a motorcycle make xxx and said motorcyclists stopped nearby my motorcycle. Pillion rider of the said motorcycle came near me and put a pistol on my head and told to me to get down from my bike otherwise he will shoot me. Thereafter said boy who put pistol on my head took my bike and went away towards DND Flyover side and xxxxxxxxxx I also lodged on line e-FIR xxx After 2-3 days of the SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 8 of 22 incident, I visited PS Mayur Vihar where I gave my complaint to the police xxxxxx I identify accused Praveen and Mohd. Shahid present in the court today (correctly identified by witness).
18. Perusal of the above, it is clear that victim narrated the incident and identified the accused as responsible for the crime committed upon him. Now court has to see evidentiary value of the said witness.
19. As regard the contention of ld. defence counsel that said witness improved his version from e-FIR, it is well settled proposition of law by various higher Courts that earlier version/FIR cannot be encyclopedia of the incident. Complainant at the earliest got lodged an e-FIR and later on made statement to the police by narrating the entire facts of crime committed upon him. As such, this contention of the ld. defence counsel is devoid of any merits and not plausible.
20. Ld. defence counsel further argued that testimony of PW-3 Nikhil Tomar, the complainant/victim is full of improvements and contradictions. During the course of arguments, 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 SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 9 of 22 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 in toto 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, 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 which do not affect the core of the prosecution case, should not be made as 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 the said deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 10 of 22 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.
21. 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."
22. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra, (Crl. A. 25-26/2000) 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 SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 11 of 22 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 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 PW-2. 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 eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 12 of 22
23. It is admitted fact that parties were not known to each other prior to the date of incident. There is no reason for false implication of the present accused persons at the hands of the complainant/victim, particularly when no ill-will, grudge or enmity has either been proved or even alleged. Rather, the complainant/victim would be the most interested person to see the actual culprit behind the bars. For holding this view, court is taking shelter of the case reported as Deepak & Ors Vs. State, 2015 VII AD (Delhi) 140, wherein Hon'ble Court has observed as - "testimony of injured witness reveals that material facts stated by him in examination-in- chief have remained unchallenged and uncontroverted in cross- examination - no ulterior motive assigned to victim for falsely implicating them for serious injuries sustained by him in 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.
24. With these observations, as discussed above, nothing has come on record which may even remotely suggest that testimony of the SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 13 of 22 complainant/victim suffers from any material contradiction and/or improvement.
25. As mentioned above, accused persons have been charged for the offence punishable under 392/397/34 IPC.
26. Qua offence punishable under Sec. 397 IPC, it is clear that while PW-3 Nikhil Tomar appeared before the court, during his examination-in-chief, though he stated that robbery was committed on the point of pistol, but neither the said weapon of offence was ever recovered or sent to FSL for its examination nor any shot was fired.
27. There was no evidence to show that with the said pistol which was allegedly used was ever used to cause any injury or attempt was made to caused death while committing the offence.
28. Hence, in view of the above, it is clear that prosecution has failed to establish its case for the offence punishable under Sec. 397 IPC. However, qua offence punishable under Sec. 392/34 IPC, court is of the view that prosecution has proved its case beyond all reasonable doubts for the offence punishable under Sec. 392/34 IPC, as on the date, time and place of incident, the crime of robbery of motorcycle from the complainant/victim was committed by accused persons. SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 14 of 22
29. Now court has to see the evidence brought on record for the offence punishable under Sec. 411 IPC for which these accused persons have also been charged with.
30. To prove the said offence, prosecution took help of PW-1 Const Arvind and PW-4 HC Ram Bharan. Both these witnesses in clear terms stated that motorcycle bearing registration no. UP16AZ-0093 was got recovered at the instance of the accused persons and later on information for the same was conveyed to the Police Station concerned.
31. As it is revealed from the record, both these accused persons denied the recovery effected from them. Neither of them claim over the said property. Both these witnesses in clear and unequivocal terms stated that motorcycle - which was taken on superdari by the complainant/victim
- PW-3 Nikhil Tomar- was recovered and seized in their presence. Nikhil Tomar - PW-3, testified that he had taken the robbed motorcycle on superdari. To the contrary, neither of these accused persons had any claim over the said robbed motorcycle.
32. 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 SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 15 of 22 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."
33. In 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 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."
34. Simple denial of the recovery is of no value in the eyes of law. It is beyond indigestible that any unknown person will visit the courts unnecessarily for taking his articles on superdari. As mentioned above, robbed motorcycle was taken on superdari and neither of these accused persons claim over the same.
SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 16 of 22
35. Qua contention of the ld. defence counsel that non citation and non examination of the public witnesses at the time of the alleged recovery is an indicator that recovery has been planted, is of no value, as there is no denial to the fact that complainant/victim took the said property on superdari and neither of the accused claim over the same.
36. Apart from that, as it is not the number of witnesses which is material rather it is the quality of the evidence which counts. Besides the above, it is well settled that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy.
37. In judgment reported as Govt of NCT of Delhi Vs Sunil (2001) 1 SCC , 652 it is held that:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police record are untrustworthy. As a preposition of law the SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 17 of 22 presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
38. In another case,reported as Union of India Vs. Victor Nnamdi Okpo (crl. Appeal No. 617/2004 decided on 16.09.2010) it is SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 18 of 22 well observed by the Hon'ble High Court of Delhi as - "It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. While departmental witnesses get leave from their office and also get necessary support from the offence regarding TA,DA , the public witnesses are treated in a very clumsy manner in the courts and they keep standing from morning till evening and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non-joining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of non-joining of public witness or non examination of public witness for valid reasons."
39. To facilitate the matter, Section 411 Indian Penal Code is reproduced as under:
Dishonestly receiving stolen property -
Whoever dishonestly receives or retains any SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 19 of 22 stolen property, knowing or having reason to believe the same to be stolen property, shall be punished xxxx
40. With the above observations, court is also of the view that it was accused persons Praveen Kumar and Mohd. Shahid, who got recovered the motorcycle bearing registration no. UP-16AZ-0093, belonging to the complainant/victim, and as such, prosecution has proved its case beyond all reasonable doubts to bring home the guilt against these accused persons for the offence punishable under Sec. 411/34 IPC for recovery of said motorcycle.
41. Ordinarily, every man is responsible criminally act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the IPC makes an exception to this principle. It lays sown a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating from the accused leading to the doing of a criminal act in furtherance of such intention. Under Section 34 every individual offender is associated with the criminal act which constitutes the offence both SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 20 of 22 physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is terms as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although his individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between 'common intention' on the one hand and 'mens rea' as understood in criminal jurisprudence on the other.
42. Circumstances and evidence leading to conclusion that these three accused shared common intention with each other to commit the crime in question of robbery and for recovery of robbed motorcycle as well.
43. With the above discussion, sum up of the above discussion is that court is of the conclusion that the prosecution has failed to bring home the guilt against either of these accused for the offence punishable under Sec. 397 IPC and as such accused persons Praveen Kumar and Mohd. Shahid Khan are hereby acquitted of the said offence. However as the prosecution has established its case against these accused persons for the offences punishable under Sec. 392/34 IPC and also 411/34 IPC, as such, these accused persons Praveen Kumar and Mohd. Shahid Khan SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 21 of 22 hereby held guilty for the offences punishable under Sec. 392/34 IPC and also 411/34 IPC and are convicted accordingly. Announced in open court SATINDER Digitally signed by SATINDER KUMAR GAUTAM on 05th day of Sept, 2019 KUMAR GAUTAM Date: 2019.09.05 14:44:49 +0530 (Dr. Satinder Kumar Gautam) Addl. Sessions Judge-03 (East):
KKD Courts: Delhi.SC NO. 1353/2018 State Vs. Praveen Kumar etc. Page 22 of 22