Delhi District Court
Fir No. 658/13 5 State vs . Neeraj & Ors. 1 Of 31 on 17 July, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI SC No. 215/16 FIR No. 658/13 PS : Karawal Nagar U/s 397/411/34 IPC State Versus 1. Neeraj S/o Sh.Indraj R/o H.No. 83, Gali no. 2, Ambika Vihar, Karawal Nagar Delhi. 2. Yoginder @ Yogesh S/o Sh. Niranjan Puri R/o House No. C-57, Gali no. 3, Ambika Vihar, Karawal Nagar, Delhi. Date of Committal : 02.12.2016 Date of Arguments : 07.06.2017 Date of Pronouncement : 17.07.2017 FIR No. 658/13 5 State Vs. Neeraj & Ors. 1 of 31 JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 05/11/2013, a rukka was received by PS Karawal Nagar prepared on the basis of statement of one Gulshan Kumar that on 04/11/2013 at about 10:30 pm, he was sitting outside the house of his maternal uncle with Anil Sharma @ Vicky where two boys namely Neeraj and Yogesh alongwith two other two boys namely Anuj and Bhati, who were standing at some distance, came to him and demanded money from him. It is further stated that he objected to the robbery of Rs. 4,000/- from the pocket of Anil Sharma and Rs. 6,600/- from his pocket, then accused Yogesh hit on his forehead by handle of pistol and he sustained injury and blood starting oozing out. He along with other family members apprehended the accused Neeraj at the spot. It is further stated that his mother Smt. Saroj and maternal uncle Laxmi Chand removed him to hospital. It is further stated that accused persons have robbed their amount forcibly. On the basis of this statement, FIR was lodged. Co-accused Yogesh @ Yogender was also arrested on 07/11/2013 and confessed that he was involved in the incident and had spent Rs. 2,600/- out of robbed amount. He passed on the countrymade pistol and robbed amount to his friend Anuj, but Rs. 1,380/- were recovered out of his possession. The other associates could not be arrested. Both accused persons charge-sheeted u/s 394/397/34 IPC.
FIR No. 658/13 5 State Vs. Neeraj & Ors. 2 of 31
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Both accused persons have been charged under Section 394/34 IPC and accused Yogesh @ Yoginder has also been charged u/s 397 IPC vide ordersheet dated 21.12.2016 and pleaded not guilty and claimed trial.
4. Prosecution has examined PW1 Gulshan Kumar, PW2 Anil Verma, PW3 Dr. Kartik, PW4 HC Hukum Singh, PW5 SI Kavi Raj, PW6 Retired HC Kamal Singh, PW7 Ct. Ravi Kumar and closed PE.
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C and their statements were recorded.
6. To prove the case, prosecution has examined many witnesses including the complainant. The evidence led by the prosecution is as under:-
6.1. PW1 Gulshan Kumar is the complainant and has deposed that he did not remember the date and month when incident took place, but it took place in the year 2013, on the day of Goverdhan, in winter season. It is further deposed that incident took place at about 10:30 P.M. On the day of incident, he went to the house of his maternal FIR No. 658/13 5 State Vs. Neeraj & Ors. 3 of 31 uncle at C-Block, Main Road, Gali No.5, Shiv Vihar, Karawal Nagar and was sitting outside the house of his uncle Virender Singh alongwith his cousin Anil @ Vicky when both the accused persons namely Neeraj and Yoginder @ Yogesh reached to them by scooty. It is further deposed that two other associates of accused also came there on foot. It is further deposed that accused Yogesh and Neeraj asked him to handover money of Rs. 6,600/- and both accused persons took out pistols and accused Yogesh opened fire in the air and also hit handle of the pistol on his head and caused head injuries to him. It is further deposed that accused Neeraj also pointed out pistol on his forehead and also gave fist blow on his chest.
Neeraj also hit butt of his pistol on his head and caused injuries to him. It is further deposed that accused Neeraj robbed a cash of Rs. 6,600/- from his pocket and both accused alongwith their associates also robbed amount of Rs. 4,000/- from his cousin Anil Sharma @ Vicky on the point of weapon. It is further deposed that other two associates of accused had no weapon.
6.1.1. PW1 has further deposed that locality persons raised alarm and his mother Smt. Saroj Devi, maternal uncle Virender Singh and his son Pankaj reached there and overpowered accused Neeraj at the spot, but accused passed on his pistol and robbed amount to his associate Yogesh @ Yoginder who ran away from the spot. It is further deposed that his uncle Laxmi Chand took him to hospital and accused Neeraj remained with his maternal uncle. It is further FIR No. 658/13 5 State Vs. Neeraj & Ors. 4 of 31 deposed that both the accused persons were earlier known to him being resident of Ambika Vihar, Karawal Nagar, Delhi. It is further deposed that he was medically treated in GTB Hospital and MLC Mark PW1/1 was prepared. Police recorded his statement Ex.PW1/A in hospital. He was not aware whether his robbed money was recovered or not, but he was neither informed by the Police to this effect nor was called to identify the amount during the course of trial. He was not sure about the denomination of currency notes robbed from his pocket, but some of the notes were in the denomination of Rs. 500/- and some were of Rs.100 denomination. He was not aware about the denomination of currency notes robbed from Anil @ Vicky. He has failed to identify Rs.1380/- recovered from accused. Recovered currency notes are Mark PW1/B-1 to PW1/B-16.
6.1.2. During cross examination by Ld. APP for the State, he has denied that IO told him about the recovery of Rs. 1380/- from accused Yoginder @ Yogesh during course of investigation. It is further denied that he claimed currency notes Mark PW1/B-1 to PW1/B13 before the police or that he has intentionally not identified the currency notes.
6.1.3. During cross examination by the accused, he has deposed that both the accused persons were known to him since childhood. It is further deposed that he reached the house of his maternal uncle Virender Singh at about 9:30 P.M and was sitting on the slab in front FIR No. 658/13 5 State Vs. Neeraj & Ors. 5 of 31 of the house at the time of incident. It is further deposed that his cousin Anil @ Vicky was accompanied him when he reached the house of his maternal uncle. It is admitted that he and his cousin Anil @ Vicky were consuming liquor while sitting on slab in front of house of his maternal uncle on that day at about 9:30 P.M. It is denied that no quarrel had taken place between him and Neeraj one day earlier to incident on the issue of boarding his TSR. It is further deposed that first of all, both the accused persons came to them and accused Yogesh @ Yoginder opened fire in the air by his pistol and thereafter robbed amount of Rs.6,600/- out of his pocket and, thereafter, accused Yogesh hit butt / handle of his pistol on his head. It is further deposed that blood started oozing out of his head injury immediately and fell down on his shirt which is lying at his home.
6.1.4. PW1 has admitted that he did not hand over his shirt having blood stains to the police. It is further deposed that his mother and uncle Laxmi Chand Gupta removed him to hospital. Firstly he was taken to private hospital at Karawal Nagar Chowk and thereafter to GTB hospital. It is further deposed that they reached GTB hospital at about 12:00 midnight. It is further deposed that police met him in GTB hospital during treatment, but his statement Ex.PW1/A was recorded by the police at PS on the same night when he reached PS after discharge from GTB hospital. Police recorded statement of his cousin Anil Sharma @ Vicky in his presence. It is denied that a quarrel had taken place between him and his cousin Anil @ Vicky FIR No. 658/13 5 State Vs. Neeraj & Ors. 6 of 31 from one side and both the accused persons and their associates from another side when they were consuming liquor while sitting on the slab of house of his maternal uncle at the time of incident. It is denied that police did not meet him in GTB Hospital at any point of time. It is voluntarily deposed that police met him when doctor was applying stitches on his head injury. It is further deposed that accused Yogesh caused injuries on his head by hitting butt / handle of pistol and accused Neeraj aimed pistol on his forehead and gave fist blows on his chest. It is further deposed that on the day of incident, he had Rs. 6,600/- with him to give to his maternal grandmother who was ill. It is denied that he used to play gamble with his cousin and others while sitting on the slab of the house of his maternal uncle. It is further deposed that police did not visit the place of incident in his presence and even site plan of place of incident was also not prepared in his presence. It is denied that accused persons had no weapon or that no incident of robbery took place with him or his cousin at any point of time. It is denied that accused Neeraj was not overpowered at the spot or that he was not handed over to his uncle or other relatives at the spot. It is also denied that he did not produce his shirt to police during course of investigation as it had no blood stain.
6.2. PW2 Sh. Anil Verma has also corroborated the testimony of Gulshan Kumar that on 04.11.2013, at about 10:30 P.M., he was sitting with Gulshan on a slab outside the house of his maternal FIR No. 658/13 5 State Vs. Neeraj & Ors. 7 of 31 uncle when accused Neeraj and Yogesh @ Yoginder came to them and snatched money from them. It is further deposed that he handed over a sum of Rs. 4,000/- to accused Yoginder, but accused Yogender had not weapon at that time. It is further deposed that accused Neeraj demanded money from Gulshan but Gulshan refused to give money. It is further deposed that accused Neeraj had pistol in his hand and hit butt / handle of the pistol on the head of Gulshan. Blood started oozing out of his head injury. It is further deposed that Neeraj took out some cash out of the pocket of Gulshan. Again said, first of all accused Neeraj opened fire in the air and then hit butt / handle of pistol on the head of Gulshan and caused injuries to him. It is further deposed that on hearing the sound of firing public persons gathered at the spot and apprehended accused Neeraj, but katta / pistol was not in his possession as he had passed on the same to his co-accused Yoginder who ran away from the spot. It is further deposed that he did not sustain injury during the incident. Mother and uncle of Gulshan with another uncle Ashok Tyagi removed injured Gulshan to hospital. Police reached at the spot within 20 minutes. Accused Neeraj was handed over to Police and police arrested him. It is further deposed that no bullet lead could be recovered at the spot. No recovery of cash could be effected in this case and even he was no informed by the police at any point of time about the recovery of cash.
FIR No. 658/13 5 State Vs. Neeraj & Ors. 8 of 31 6.2.1. During cross examination by Ld. APP for State, he has admitted that his statement was recorded in this case on 05.11.2013, but it is denied that two associates of both accused also participated in the incident or that they were standing at some distance of the spot when both the accused persons committed robbery on the point of weapon from their possession. It is denied that a sum of Rs.6600/- was robbed from the possession of Gulshan as recorded in his statement Ex. PW2/A. It is admitted that accused Yoginder also hit butt / handle of the pistol on the head of Gulshan and caused injuries to him. It is denied that during course of investigation, police told him that a recovery of Rs.1380/- was effected out of the possession of Yoginder which was claimed by Gulshan before Police.
6.2.2. During cross examination, he has admitted that the incident took place in street of which width is about 15 feet. It is further deposed that Neeraj and Yogesh @ Yoginder used to visit Chemist shop situated at some distance of his house and were known to him for the last 4-5 years. It is further deposed that he had Rs. 4,000/- in his pocket at the time of incident but did not know the denomination of robbed currency notes. He was not aware whether Gulshan had Rs.6,600/- with him and it is denied that he disclosed to police in his statement that Gulshan had Rs.6600/- in his possession at the time of incident which is recorded in his statement Ex.PW2/A. It is further deposed that incident took place at about 10.00 PM or 10:30 P.M. and Gulshan was sitting on the slab in front of house of Virender and FIR No. 658/13 5 State Vs. Neeraj & Ors. 9 of 31 was consuming Whiskey, but he did not consume liquor. It is further deposed that there was no other associates with both accused at the time of incident but both accused were on white scooty being driven by accused Neeraj. It is further deposed that he handed over Rs.4,000/- to accused Yoginder when he demanded on pointing out of pistol and did not raise alarm. It is further deposed that he stayed at the spot after handing over a sum of Rs.4000/- to Yogender and thereafter Neeraj demanded money from Gulshan. It is further deposed that accused Neeraj hit butt / handle of his weapon on the head of Gulshan and Yoginder took out money out of the pocket of Gulshan. Pistol was in possession of Yoginder. Gulshan had raised alarm when accused Neeraj hit butt / handle of pistol (katta), but accused Yoginder ran away from the spot with pistol but Neeraj was overpowered at spot by Gulshan and family members of Virender. No recovery of money could be effected from accused Neeraj, but blood oozed out of the head injuries of Gulshan when he overpowered accused Neeraj. His uncle Ashok Tyagi, mother of Gulshan and uncle of Gulshan Lakhmi Chand Gupta removed injured Gulshan to hospital but he did not go to hospital. Police recorded his statement on the next day of the incident. It is denied that no money was snatched by accused from him. Police did not prepare any site plan of the place of occurrence in his presence. Police did not tell him at any point of time that recovery of money was affected from any of accused.
FIR No. 658/13 5 State Vs. Neeraj & Ors. 10 of 31 6.3. PW3 Dr. Kartik has proved MLC of injured Gulshan Kumar Gupta on which nature of injury was opined as simple by Dr. Sanjay Kumar on 13.12.2013. Endorsement regarding nature of injuries as simple as per Neurosurgery is Ex.PW3/A. 6.4. PW4 HC Hukam Singh has deposed that he joined the investigation with ASI Kavi Raj Sharma and complainant Gulshan. They conducted search of accused Yoginder and arrested him from the place in front of H.No. C-57, Gali No.3, Ambika Vihar, Karawal Nagar on the pointing out and identification of Gulshan Kumar. IO interrogated accused and arrested vide arrest papers which are Ex.PW4/A-1 and Ex.PW4/A-2. IO also recorded disclosure statement of accused Ex.PW4/B. One black wallet containing Rs.120/- was recovered from the personal search of accused Yogender.
6.4.1. During cross examination by Ld. Addl. P.P for the State, he has admitted that identification cum pointing out memo was prepared by IO vide memo Ex.PW4/C in his presence. It is further admitted that one seizure memo Ex.PW4/D was also prepared and even accused also disclosed the name of his associates as Neeraj. It is denied that accused Yoginder produced Rs.1380/- before IO thereby stating that amount was case property of this case and belonged to Gulshan. It is denied that IO seized the currency notes vide seizure memo Ex.PW4/D. It is further denied that accused Yogender disclosed that cash of Rs.1380/- was part of robbed cash and FIR No. 658/13 5 State Vs. Neeraj & Ors. 11 of 31 remaining amount was spent. He has not identified the currency notes Mark PW1/B-1 to PW1/B-16 recovered from accused Yoginder Yoginder @ Yogesh. It is denied that he has deposed falsely about recovery of currency notes.
6.4.2. During cross examination by accused, he has deposed that he put his signatures on the arrest papers, disclosure statement and seizure memo at PS, but he was not aware about the contents of aforesaid seizure memos. It is denied that he was not present at the time of arrest of accused or that IO did not prepare arrest papers and disclosure statement of accused in his presence. It is admitted that no other recovery of cash was effected from accused Yoginder except his personal search amount of Rs.120/- and black wallet.
6.5. PW5 SI Kavi Raj was IO who conducted the investigation of this case on assigning DD No. 71B Ex.PW5/A on 04.11.2013 at about 10.50 pm, in connection with causing bullet injury by some boys to the son of caller at RZ-34, gali no. 5. He along with Ct. Ravi Kumar reached at the spot, but injured had already been removed to hospital. Eye witness of incident told him that injured had been taken to hospital by his mother and uncle. He noticed blood stains on the slab / chabutra outside the house where incident had taken place. Ct. Ravi Kumar was deputed as guard to the spot and he went to GTB Hospital where collected MLC of injured Gulshan Kumar Gupta. It is further deposed that he met injured in GTB Hospital and FIR No. 658/13 5 State Vs. Neeraj & Ors. 12 of 31 recorded his statement Ex.PW1/A and prepared rukka. Injured named two assailants and also that two other associates of named assailants were standing at some distance at the time of incident. It is further deposed that it came into his notice in GTB hospital that one assailant was produced by public before PCR officials who took him to PS. He returned back to spot and sent rukka Ex. PW5/B through Ct. Ravi Kumar to PS for registration of FIR. Ct. Ravi delivered rukka Ex. PW5/B and copy of FIR Ex. PW5/C to him. He inspected the spot and prepared site plan at the instance of injured Gulshan which is Ex. PW5/D. It is further deposed that Duty Officer HC Kamal Kumar produced accused Neeraj before him and he arrested him after interrogation vide arrest papers Ex. PW5/E and Ex. PW5/F in the presence of Ct. Ravi. Thereafter, he called injured to PS who identified accused Neeraj as assailant and also signed arrest papers of accused.
6.5.1. PW5 has further deposed that on 07.11.2013 at about 3.00 pm, he along with Ct. Hukum Singh left the PS in search of accused Yoginder @ Yogesh and arrested him from C-57, Gali No. 3, Ambika Vihar, on identification of HC Hukum Singh. He interrogated accused Yoginder @ Yogesh and arrested vide arrest papers Ex. PW4/A1 and Ex.PW4/A2, in the presence of HC Hukum Singh. Accused confessed his guilt vide disclosure statement Ex, PW4/D and also pointed out the spot of incident vide pointing out memo Ex.PW4/C. Complainant Gulshan also reached PS after arrest of accused and FIR No. 658/13 5 State Vs. Neeraj & Ors. 13 of 31 identified accused Yoginder @ Yogesh as assailant. It is further deposed that he obtained signature of complainant on the arrest documents of accused Yoginder @ Yogesh. An amount of Rs. 120/- was recovered from the personal search of accused Yoginder besides one black purse. It is further deposed that Rs. 1380/-, which were part of looted cash, were also recovered from the possession of Yoginder @ Yogesh and it was part of his share of Rs. 2600/- out of total robbed amount of Rs. 10,600/-. He seized the amount vide seizure memo Ex. PW4/D. He also obtained the nature of injury on the MLC of injured and doctor opined nature of injury as simple. He also collected X-ray report and CT Scan report of injured Gulshan Kumar Mark PW5/1 and Mark PW5/2 and placed on file. He has identified Currency Notes of Rs. 1380/- as Ex. P1 (colly).
6.5.2. During cross examination, he has deposed that father of injured Bhagwati Prasad met him at the spot besides some other persons. It is further deposed that he visited GTB Hospital where injured Gulshan Kumar met him and made his statement. It is further deposed that it came into his notice that injured was taken to private hospital first and then to GTB Hospital but was neither aware about the name of that private hospital nor visited that hospital during investigation. Even injured did not produce any document pertaining to treatment in private hospital. He came to know from public person present at spot about the incident of firing but no clue could come forward during the inspection of spot about such gunshot firing. No FIR No. 658/13 5 State Vs. Neeraj & Ors. 14 of 31 vehicle was parked near the spot when he reached there. He arrested accused Neeraj at PS as PCR official handed over the custody of accused Neeraj to Duty Officer, but he did not examine those PCR officials or DO. Accused Neeraj met him at PS in DO Room. It is further deposed that accused Yogender was arrested and led them to the place of incident, but no recovery of weapon of offence i.e. countrymade pistol could be affected from him. No public person from the neighborhood was examined by him and even recovery of any other article was not affected from accused Neeraj. It is admitted that he did not seize clothes of injured Gulshan Kumar, but site plan was prepared at his instance, whereas his signatures were not obtained on site plan.
6.6. PW6 HC Kamal Singh has proved FIR Ex. PW5/C recorded on the basis of rukka Ex. PW5/B sent by ASI Kavi Raj through Ct. Ravi Kumar. He also lodged DD no. 10A Ex.PW5/C regarding typing of FIR and also made endorsement on rukka Ex.PW6/A. Investigation of this case was assigned to ASI Kavi Raj to whom rukka and copy of FIR were delivered through Ct. Ravi Kumar. He has issued certificate u/s 65B of evidence Act pertaining to the correctness of FIR Ex.PW6/B. 6.7. PW7 Ct. Ravi Kumar joined the investigation of this case with IO and visited the spot where public persons produced accused Neeraj. He was deputed guard to the spot when ASI Kavi Raj went to FIR No. 658/13 5 State Vs. Neeraj & Ors. 15 of 31 hospital. He took rukka Ex.PW5/B to PS and handed over rukka alongwith copy of FIR to ASI Kavi Raj for investigation. Accused Neeraj was arrested vide arrest memo Ex.PW5/E1 and personal search memo Ex.PW5/E2 in his presence.
6.7.1. During cross examination, he has admitted that no eye witness met him at the spot. He was not aware about the names of those persons who produced the accused Neeraj before them and even IO did not record the statements of those public persons. Except accused Neeraj, no other accused was arrested in his presence and accused Neeraj was arrested prior to taking of rukka to PS. It is admitted that no recovery was affected from accused Neeraj in his presence. He did not see any scooty parked / stationed nearby the spot and even no vehicle was seized by the IO in his presence. No site plan was prepared by IO in his presence, but it was prepared.
7. I have heard the arguments and perused the record. As per case of the prosecution, both accused along with their two other associates committed the robbery from Gulshan Kumar and Anil Verma @ Vicky who were sitting outside the house of Virender. Accused also caused head injuries to Gulshan by handle of pistol. To prove these allegations, testimony of PW1 Gulshan Kumar is relevant. Though he did not remember the date and month of incident, yet he has deposed that on day of Goverdhan at about FIR No. 658/13 5 State Vs. Neeraj & Ors. 16 of 31 10.30 pm, in winter season, he along with his cousin Anil Sharma @ Vicky was sitting outside of house of his uncle when both accused came on scooty and demanded money from him and Anil @ Vicky. It is further deposed that both accused robbed an amount of Rs. 6600/- out of his possession. Accused Neeraj aimed pistol on his forehead and accused Yogender @ Yogesh caused head injury by handle of pistol. He has also deposed that both accused also robbed Rs. 4,000/- out of the possession of Anil Sharma. It is further deposed that accused also opened fire in air when he refused to part with the money. It is further deposed that he raised alarm and accused Neeraj was apprehended red handed at the spot, but other accused Yogesh @ Yogender ran away and accused Neeraj passed on pistol and robbed amount to him. PW1 has further deposed that he was removed to hospital by his mother and uncle where he was treated and his MLC was prepared. Police recorded his statement Ex.PW1/A in hospital on which basis FIR was lodged.
8. The above-said testimony of PW1 Gulshan Kumar is duly corroborated by the testimony of PW2 Anil Sharma @ Vicky with some omissions and modifications, however he has corroborated that accused Neeraj and Yogesh @ Yogender robbed Rs. 4,000/- out of his pocket and Rs.6,600/- from Gulshan on gunpoint. Though he has deposed that accused Neeraj had pistol in his hand and caused head injury to Gulshan by that pistol which is in contradiction to the statement of PW1 which is Ex.PW1/A, yet he has duly proved that FIR No. 658/13 5 State Vs. Neeraj & Ors. 17 of 31 the incident of robbery was committed by the accused with him and his cousin Gulshan. PW1 Gulshan was the injured of incident and has stood by his statement given to police during investigation that he was caused injury by accused Yogesh @ Yogender and PW2 has corroborated it with some modification. The testimony of PW2 is also of a victim and cannot be rejected out rightly for the want of corroboration from other eye witness and similar proposition has held in Surendra Singh Rautela Alias Surendra Singh Bangali v. State of Bihar (Now state of Jharkhand) (2002) 1 SCC 266 that the evidence of eye witness cannot be discarded merely because another eye witness had not supported the prosecution case. Even otherwise, the testimony of a witness has to be read as whole and not in isolation. PW1 is injured and has categorically deposed about the presence of his cousin Anil @ Vicky with him at the time of incident. Rather he has been suggested and has admitted that suggestion of accused that he along with his cousin was consuming liquor while sitting on the slab of the house of his uncle on that day at about 9.30 pm. This affirmative testimony of PW1 has not been rebutted by the accused and has proved the presence of Anil at the time of incident with him.
9. Further, PW1 has deposed that first of all both accused came to them and accused Yogesh opened fire in the air and thereafter robbed Rs. 6,600/- out of his pocket and accused also Yogesh hit handle on pistol on his head. This testimony has also been FIR No. 658/13 5 State Vs. Neeraj & Ors. 18 of 31 corroborated by PW2 Anil Sharma and has not been controverted by accused thereby putting any adverse suggestion to it. Though PW1 and PW2 have deposed that both accused opened fire in air before robbing them and it is an improvement to their earlier testimonies, yet this fact has not been disputed by the accused. Rather accused have put a suggestion to PW1 that "it is wrong to suggest that a quarrel had taken place between me and my cousin Anil @ Vicky from one side and both accused persons and their associates from other side when they were consuming liquor while sitting on slab of house of my maternal uncle at the time of incident". This suggestion has established that accused persons have admitted their presence at the spot at the time of incident and also admitted their quarrel with the accused. In fact, this suggestion has duly proved the case of the prosecution by and large.
10. Even, PW1 has deposed that accused Yogesh @ Yogender caused injury on his head by hitting handle of his pistol and accused Neeraj aimed pistol on his forehead and also gave fist blow on his chest and this deposition has also not been denied by the accused during cross examination thereby putting any adverse suggestion. PW1 has denied that injuries sustained by him were self inflicted. Though testimony of PW2 has a number of contradictions in comparison to the testimony of PW1, yet the material fact of robbery by accused together has been duly corroborated by him thereby deposing that he along with Gulshan was robbed by the accused FIR No. 658/13 5 State Vs. Neeraj & Ors. 19 of 31 Neeraj and Yogesh @ Yogender after causing injury to Gulshan. It is further proved that accused Neeraj was overpowered at the spot but he passed on katta / country made pistol and robbed amount to his co-accused Yogender who ran away from the spot after the incident. As such, the testimonies of both witnesses have duly proved the incident in terms of the case of the prosecution.
11. Further, during the cross examination by Ld. APP for State, PW2 Anil @ Vicky has admitted that Yogesh hit butt / handle of the pistol on the head of Gulshan to cause injury to him. He has also proved his presence with Gulshan at the spot besides robbery of Rs. 4,000/- from him on the point of pistol by Yogesh. As such, the testimonies of both PWs have proved beyond doubt that accused robbed PW1 and PW2 and caused injuries to Gulshan during the incident. Though the presence of other associates of both accused has been denied by PW2, yet it is of no use as other associates have not been charge-sheeted by the prosecution and merely denial of presence of associates by PW2 is of no use.
12. Further, the testimony of PW1 regarding sustaining injury during incident has been duly corroborated by MLC of injured proved by PW3 Dr. Kartik. PW1 was taken to hospital by his mother Smt. Saroj and her name is duly mentioned on the MLC. The injuries sustained by PW1 were opined simple vide endorsement Ex.PW3/A and were caused on the forehead and parietal region. The injuries have duly FIR No. 658/13 5 State Vs. Neeraj & Ors. 20 of 31 corroborated to the testimonies of victims. Even this MLC has also corroborated the affirmative suggestion put to PW1 and PW2 that they were consuming alcohol at the time of incident and smell of Alcohol has also observed by the doctor who conducted the MLC of PW1. It is also corroborated that accused Neeraj was apprehended at the spot and was arrested by PW5. PW5 has proved the arrest of accused Neeraj vide arrest papers Ex.PW5/E and Ex.PW5/F. Though the testimony of PW5 is slight different that accused Neeraj was handed over to DO at PS by PCR officials, whereas PW1 has deposed that accused remained in the custody of his uncle Virender, yet it is of no use. PW5 has duly proved that accused was apprehended by the PW1 and PW2 along with other persons at the spot and thereafter he was arrested. It is irrelevant as to whether he was arrested at the spot or at PS but it has duly proved that he was apprehended at spot soon after the incident and was one of the assailants. PW7 Ct. Ravi Kumar has also corroborated the arrest of accused Neeraj and his testimony is in same line of IO as well as PW1. As such, arrest of accused stands proved beyond doubt.
13. Accused Yogesh @ Yogender was arrested later on and his arrest has been proved by PW4 vide arrest papers Ex.PW4/A1 and Ex. PW4/A2. A recovery of Rs.1,380/- has been alleged from the possession of Yogesh which was part of robbed amount, but PW1 and PW2 have denied this recovery on the ground that they were neither informed about this recovery nor amount was shown to them FIR No. 658/13 5 State Vs. Neeraj & Ors. 21 of 31 after such recovery. Ld. Counsel for the accused has argued that the testimonies of PW1 and PW2 are not reliable as they have failed to prove the recovery of alleged robbed amount. It is further argued that both witnesses have denied such recovery due to it may not be ruled out that either police have planted this recovery upon accused or both the witnesses have concocted a false story. However, this submission has no force. An amount of Rs. 1380/- was recovered out of the possession of the accused Yogesh but has been disputed by victims on the ground that it was neither intimated nor shown to them, but this dispute is not going to effect the case of the prosecution in any manner. There is no charge of Section 411 IPC against the accused about this recovery of stolen amount. The material and main allegation against the accused was as to whether they have committed the robbery of cash out of the possession of the PW1 and PW2 or not and this fact has been duly proved beyond doubt. The remaining testimony of the PW1 and PW2 cannot be disputed merely because the police did not intimate to the witnesses about this recovery. Even if it is assumed that this recovery is doubtful, then also it stands proved that PW1 and PW2 were robbed by the accused persons.
14. Ld. Counsel for accused has further argued that neither the blood stains were lifted from the spot nor clothes of injured were seized by the IO due to it could not be proved that the PW1 Gulshan sustained any injury. It is further argued that even this fact has FIR No. 658/13 5 State Vs. Neeraj & Ors. 22 of 31 proved that the conduct of the witness is not upto mark and is unreliable. However, this argument has no force. The incident could not be disputed merely by non-seizure of the blood stains or blood stained clothes of injured by the IO especially when MLC of injured has duly proved that Gulshan sustained injuries in similar manner as observed in MLC. PW1, PW2 and PW5 have duly proved that blood oozed out of the injuries of Gulshan and even he was suggested by accused during cross examination that injury sustained by him was self inflicted. This suggestion has duly proved that PW1 not only sustained injury but also his MLC with lacerated wounds was prepared. In fact, by sustaining of such nature of injuries by PW1, oozing out of the blood was eminent and if blood was not seized by the IO, then it was fault of the IO and accused cannot be given benefit of defective investigation. IO has duly admitted that blood stains were lying at the spot and even clothes of the injured also sustained blood stains, but he did not seize those clothes or blood stains from the spot during investigation and there is no fault of injured in it. It is held in Abdul Sayeed V. State of Madhya Pradesh & others, (2010) 10 SCC 259 that weight is to be attached to the evidence of a witness that was himself injured in the course of occurrence and testimony of such 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 assailants in order to falsely implicate someone. As such, the plea taken by the accused is not sustainable.
FIR No. 658/13 5 State Vs. Neeraj & Ors. 23 of 31
15. Ld. Counsel for accused has argued that testimonies of PW1 and PW2 are not on the line of their statements u/s 161 Cr. PC, due to testimonies are not reliable. It is further argued that the testimonies have a lot of contradiction which have rendered the case of the prosecution unreliable. However, these arguments have not substance on many grounds. Firstly, the accused have not disputed the case of the prosecution on material grounds despite detailed cross examination of the witnesses. Secondly, the witnesses have not been confronted with their earlier statement recorded by the police during investigation in terms of section 145 of Evidence Act. The Hon'ble Supreme Court of India has laid down the procedure to confront the earlier statement of the witnesses to avail the benefits of such confrontation. It is held in V. K. Mishra And Another v. State of Uttrakhand And Another (2015) 9 SCC 588:
16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. the statement made by a witness before the police under Section 161 (1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to witness on what he has stated a the trial as laid down in the proviso to section 162(1) Cr.P.C. the statements under section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the court; and (iii) the reexamination of the witness if necessary.
FIR No. 658/13 5 State Vs. Neeraj & Ors. 24 of 31
17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved"
clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross examination and also during the cross examination of the investigating officer. The statement before the investigation officer can be used for contradiction but only after strict compliance with section 145 of the Evidence Act this is by drawing attention to the parts intended for contradiction.
19. Under section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduce into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross examination. The attention of witness is drawn to that part and this must reflect in his cross examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need further proof of contradiction and it will be read while appreciating the evidence. If denied having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention must be drawn to the passage marked for the purpose of contradiction; it will then be proved in the deposition of investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part which the maker of the statement was intended to be FIR No. 658/13 5 State Vs. Neeraj & Ors. 25 of 31 contradicted. If the witness was not confronted with that part of the statement with which the defense wanted to contradict him, then the court cannot suo-motu make use of statements to police not proved in compliance with section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.
16. It has been held in State of UP v. M.K. Anthony, (1985) 1 SCC 505 and Leela Ram v. State of Haryana (1999) 9 SCC 525 that the difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself wound not prompt the court to reject the evidence on minor variations and discrepancies. In Leela Ram (supra), this Court observed in paragraph 9 of the report:
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations 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."
25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for FIR No. 658/13 5 State Vs. Neeraj & Ors. 26 of 31 impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:
'155. Impeaching credit of witness - The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him (1) - (2).
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;'
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to 'contradict' the witness the cores-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness.
In view of this law laid down by the Hon'ble Apex Court, it stands proved that the testimony of a witness is evidence if it is recorded before the court and statement given to police is not evidence in view of bar under section 162 Cr.P.C. Though the statement u/s 161 Cr.P.C. may be used to contradict a witness to his earlier statement, yet the procedure laid down to this effect has to be followed and merely confronting of contradiction to a witness without confrontation to IO is of no use and does not prove that contradiction.
FIR No. 658/13 5 State Vs. Neeraj & Ors. 27 of 31
17. In the present case, testimony of PW1 and PW2 before this court is actual evidence which has duly proved the mode and manner of incident beyond doubt. The contradictions emerged in their testimonies are minor as witnesses have just skipped minute details of incident which has not affected the core issue of robbery by accused persons and is not going to effect the case of the prosecution. It has been held in Sunil Kumar Sambhu dayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657 that the contradictions / omissions must be of such nature which materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety. As such, the testimonies of the PWs have duly proved the involvement of the accused in the incident and minor contradictions emerged during the testimonies of the PWs could not doubt the case of the prosecution.
18. Ld. Counsel for the prosecution has pleaded that the accused are entitled for the benefit of doubt. However, benefit of doubt is not a symbolic doubt but it must be material as held in AIR 2003 SC 3609 titled State of Punjab v. Karnail Singh as under:
12. That "exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroying social defense. Justice cannot be made sterile on the plea that it is better to let hundred of guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law as held FIR No. 658/13 5 State Vs. Neeraj & Ors. 28 of 31 Gurbachan Singh v. Satpal Singh & Ors. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial: if a case has some flaws in evidence because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, is not fetish- A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties".
As such, accused is not entitled for the benefit of doubt for such minor contradictions.
19. Admittedly, both the accused were together at the time of incident and one of them caused injury to the injured Gulshan, however the mischief of Section 394 IPC has covered and made liable both accused. Section 394 IPC contemplates that voluntarily causing hurt in robbery or attempting to cause robbery by the person who caused injury has also made the other associate liable for such crime irrespective of the fact whether he caused such injury or not. The presence of both accused together is sufficient to bring them within the ambit of Section 394 IPC. In this case also, PW1 and PW2 have duly proved that both accused were together at the time of incident and one of them caused injuries to PW1 by the handle of FIR No. 658/13 5 State Vs. Neeraj & Ors. 29 of 31 pistol and it is sufficient in itself to prove that both accused are jointly liable for section 394 IPC. As such, it stands proved that both the accused are liable u/s 394/34 IPC.
20. So far the offence under section 397 IPC is concerned, this charge has been framed against the accused regarding use of dangerous weapon during the incident. However, no recovery of weapon allegedly used during the incident has been made. Even no plausible explanation has been tendered by the prosecution to this effect. Though use of dangerous has been duly proved by the testimonies of eye witnesses coupled with MLC of injured, yet it is not sufficient to prove the charges u/s 397 IPC against the accused. Accused Yogender @ Yogesh allegedly passed on this weapon and robbed amount to his other associate Aunj who has neither been arrested nor charge-sheeted due to this fact could not be proved.
21. Ld. Counsel for accused has argued that recovery of fired cartridge cases could not be made to prove that any such firing incident had taken place and this fact has proved that there was no use of weapon during the incident. Though robbery on the point of pistol has been duly proved by the prosecution, yet in the absence of recovery of the weapon used during the incident, it is not safe to convict the accused for the offence u/s 397 IPC and, he is entitled for benefit of doubt.
FIR No. 658/13 5 State Vs. Neeraj & Ors. 30 of 31
22. Keeping in view of the facts and circumstances of the case, I am of the considered opinion that prosecution has successfully proved the charges u/s 394/34 IPC against both accused, but charges u/s 397 IPC could not be proved against accused Yogender @ Yogesh. Both accused are convicted u/s 394/34 IPC, but accused Yogender @ Yogesh is acquitted u/s 397 IPC.
Announced in open court (Devender Kumar)
today on 17.07.2017 Addl. Sessions Judge-03 (NE)
Karkardooma Court/Delhi
FIR No. 658/13 5 State Vs. Neeraj & Ors. 31 of 31