Delhi District Court
State vs 1. Sonu on 9 February, 2015
IN THE COURT OF SH. SANJAY BANSAL:
ADDITIONAL SESSIONS JUDGE-03 (East):
KARKARDOOMA COURTS: DELHI.
S.C. No: 47/2014
Case ID No. 02402R0172712010
State Versus 1. Sonu
S/o Raghubir Singh
R/o C-132, Gali No. 11
East Kanti Nagar, Delhi.
2. Jinku @ Jinga
S/o Harender Singh
R/o Rakesh Ka Makaan, Gali No. 3
West Kanti Nagar, Delhi.
3. Lakhan
S/o Ashok Kumar
R/o House No. 1858, Gali No. 9
Rajgarh Colony, Krishna Nagar, Delhi.
FIR No: 55/2010
PS.: Krishna Nagar
U/s.: 394/397/34 IPC
Chargesheet filed on: 11.06.2010
Judgment reserved on: 09.02.2015
Judgment delivered on: 09.02.2015
JUDGMENT:
1. One Manoj Chauhan, on 10.03.2010 at about 1.30 a. m. was going back to his house on foot and when he reached opposite Sri Ram Hospital, one white maruti car stopped near him in which there were four persons. They asked route to Krishna Nagar. Immediately two of them pointed knife upon him and one of them held him from behind. They took away his cash of Rs. 40,000/- and one gold ring. When Manoj Chauhan protested, one of them gave knife blows on his chest, back and head and caused injuries to him. He also received injuries in his SC No. 47/2014 State Vs. Sonu etc. Page No. 1 of 14 hand when he tried to snatch the knife. All of them fled away.
2. One police official met him and took him to Dr. Hedgwar Arogya Sansthan Hospital. Upon recording the statement of Manoj Chauhan, a case under Sec. 394/397/34 IPC was registered. Investigation was taken up.
3. Information was received about arrest of four persons namely Sonu, Jinku @ Jinga, Deepak and Lakhan in case FIR No. 183/2010 under Sec. 394/397/34 IPC at PS Shakarpur. It was also informed that they had disclosed their involvement in the present case. Three of them were also arrested in the present matter and Deepak was released after interrogation. The maruti car was found abandoned and was deposited at PS Welcome, Delhi. It was reported to be a stolen vehicle vide FIR No. 66/10 under Sec. 379 IPC PS Krishna Nagar. TIP proceedings were got conducted. Accused Lakhan and Jinku refused to participate in the same whereas accused Sonu participated and he was duly identified by the complainant. However, no recovery could be effected. The fourth accused was found to be one Karan who could not be arrested and proceedings under Sec. 82 CrPC were issued against him. Chargesheet was submitted against the three accused persons. As the offence punishable under Sec. 397 IPC was exclusively triable by the Court of Sessions, case was committed to it after compliance of provision of Sec. 207 CrPC.
4. Vide order dated 15.07.2010, charges under Sec. 397/34 and 394/34 IPC were framed against these three accused persons to which these accused persons pleaded not guilty and claimed trial.
5. After framing of charges, matter was posted for prosecution SC No. 47/2014 State Vs. Sonu etc. Page No. 2 of 14 evidence and PW-1 Const. Jagbir was examined who deposed that accused persons Lakhan, Sonu and Jinku on 29.03.2010 were on one day police remand and they pointed out the place of occurrence of this case vide memo Ex. PW 1/A. This witness also deposed that disclosure statements of these accused persons Ex. PW 1/B 1 to B 3 were also recorded.
6. After recording evidence of this witness, supplementary chargesheet was filed against fourth accused namely Karan and vide order dated 06.12.2010 charges were also framed against this accused under Sections 397/34 & 394/34 IPC to which this accused too pleaded not guilty and claimed trial.
7. Thereafter statements of following prosecution witnesses were recorded.
8. PW-2 HC Surender who has recorded the DD entry No. 3 A at about 1.36 a.m. copy of which is Ex. PW 2/A. He also recorded FIR in question, copy of which is Ex. PW 2/B. He had also made endorsement Ex. PW 2/C on the rukka which was brought by Const. Krishan Kumar.
9. PW-3 is Manoj Chauhan/the complainant. He has deposed about the incident and deposed that on 10.03.2010 at about 1.30 a.m. he was returning to his house from the house of his uncle Amrit Lal. When he reached before Swaran Cinema near a nursing home, one white colour maruti car stopped near him. Four persons were inside the car who were in the age group of 25-30 years. They asked the complainant about way to Krishna Nagar. He deposed that they proceeded to some distance and suddenly two of them came out of the car. The SC No. 47/2014 State Vs. Sonu etc. Page No. 3 of 14 said two boys pointed out knife to him while the other two were in the car. The boys who had pointed out knife demanded his belongings. Complainant (PW-3) took out cash of Rs. 40,000/- from his pocket and gold ring and gave the same to them. He also deposed that the boys forcibly tried to put him inside the car but he resisted. One of the boys gave him knife blow on his left chest and the other on his back. He deposed that when he was trying to snatch the knife, he received injuries to his palm and head. When he was resisting, the other two boys also came out and they also tried to put him inside the car. He resisted further and one boy sat on the driving seat. PW 3 rescued himself by jumping to the other side of the road. All of them fled away in the car. He deposed that he saw two police officials coming on scooter and he told them all the facts. They took him to Dr. Hedgewar Hospital. Local police also arrived there and his statement Ex. PW 3/A was recorded.
10. He deposed about participating in TIP proceedings on 26.03.2010 and deposed about identifying accused Sonu therein. He identified his signatures on the said proceedings. He deposed about identifying the other two accused persons in the police station later on. He deposed about identifying accused Karan also in police station thereafter.
11. He deposed that accused Karan (juvenile) and Lakhan were the persons who had placed knife upon him. He also deposed that accused Jinku and Sonu were the other two accused who had assisted them.
12. In cross-examination, he stated that he could not tell the number of the Maruti car. He stated that house of his uncle was at Krishna Nagar. He SC No. 47/2014 State Vs. Sonu etc. Page No. 4 of 14 denied the suggestion that accused Sonu was shown to him before TIP. PW-3 in cross-examination further stated that he did not remember the name of the nursing home. He denied the suggestion that there were more than four persons in the car.
13. PW-4 Const. Krishan Kumar deposed that he was on patrolling duty from 12 midnight to 5 a.m. At about 1.45 a.m. he reached at Sri Ram Hospital where he met ASI Surender Pal Hooda (PW-11). PW 11 informed PW-4 about the incident and PW-4 thereafter accompanied him to Hedgwar Hospital. He deposed about witnessing the recording of statement of the injured Manoj Chauhan (PW-3). He deposed about taking rukka to police station for getting the case registered. He also deposed about seizure of blood stained shirt of the injured vide memo Ex. PW4/A which was sealed with the seal of CMO DHAS.
14. PW-5 ASI Jaipal Sharma deposed about arrest of accused persons Sonu, Jinku and Lakhan on 16.03.2010 in FIR No. 183/2010 PS Shakarpur. He deposed about making of disclosure statements of these accused persons which are Ex.PW-5/A to C. He deposed about informing PS Krishna Nagar on 17.03.2010.
15. It is pertinent to mention here that after recording the evidence of these witnesses, vide order dated 29.03.2012, accused Karan was declared juvenile and SHO was directed to file separate chargesheet against this juvenile before JJB and case was fixed for remaining prosecution evidence against remaining accused persons.
16. PW-6 Const. Latafat Ali also deposed about arrest of these three SC No. 47/2014 State Vs. Sonu etc. Page No. 5 of 14 accused persons on 16.03.2010.
17. PW-9 Dr. Amit Gupta proved the MLC of the injured/complainant as Ex. PW9/A. PW-7 Dr. Ved Pal Yadav proved the opinion regarding nature of injuries. As per his opinion injuries were simple.
18. PW-8 HC Anil Kumar deposed that on 09.03.2010 he was posted at PS Farsh Bazar. At about 1.45 a.m. he was patrolling the area with Const. Surender. He deposed about meeting injured Manoj Chauhan (PW-3) in front of Sri Ram Hospital. He deposed that injured was bleeding from his chest. He also deposed that injured apprised him of the incident. This witness took him to Dr. Hedgwar Hospital. Nothing has come out during his cross-examination.
19. PW-10 is Ms. Sunena Sharma, the learned MM who had conducted TIP proceedings of three accused namely Sonu, Jinku and Lakhan which are Ex. PW10/A to C. Accused Sonu was duly identified in those proceedings.
20. PW-11 ASI Surender Pal is the Investigating Officer. He deposed that after receipt of DD No. 3A, he along with Const. Kishan Kumar reached near the spot where he came to know that injured had been rushed to Dr. Hedgewar Hospital. Thereafter he reached there and found the injured admitted there and obtained his MLC. He also recorded the statement of injured and put his endorsement Ex. PW11/A and sent the same to police station through Const. Kishan Kumar for getting the case registered. This witness also seized articles vide memo Ex. PW4/A. This witness also prepared site plan Ex. PW11/B. This witness further deposed that on 17.03.2010 on receipt of information regarding SC No. 47/2014 State Vs. Sonu etc. Page No. 6 of 14 arrest of accused persons, he arrested accused persons Jinku, Sonu and Lakhan in this case and got conducted test identification parade proceedings of accused persons. This witness also deposed that he arrested Karan in this case and later on filed chargesheet against him before JJB.
21. Statements of the accused persons were recorded under Sec. 313 CrPC in which all these three accused persons denied the prosecution case in toto as alleged. All these accused persons pleaded that they had been lifted from their respective houses on 14/15.03.2010 and later on implicated in three cases including this one.
22. All these accused wanted to lead the evidence in their defence.
23. DW-1 Pintoo (on behalf of Jinku) deposed that said accused Jinku is his real younger brother. This witness further deposed that on 15.03.2010, he (this witness) was residing in Gali No. 3, West Kanti Nagar in the house of one Rakesh as his tenant and on that date, at about 8/8.30 p.m. his brother Jinku @ Jhinga was taken away from the said house by 3-4 persons who were in plain clothes. This witness further deposed that he asked the matter on which they told that they were police officials and informed that they were taking his brother for some inquiry and would be let off after the same. This witness further deposed that on the intervening night of 09/10th March, 2010 his brother was sleeping with him throughout the night and had not committed any crime.
24. No other defence witness was examined by accused persons.
25. I have heard Sh. Kamal Akhter, learned Addl. PP for State and Sh. Dinesh Yaduvanshi, learned counsel for the accused persons. I have also SC No. 47/2014 State Vs. Sonu etc. Page No. 7 of 14 perused the record.
26. It is submitted by the learned Addl. PP that prosecution witnesses have fully supported the case of the prosecution and hence accused persons be held guilty. It is also submitted that PW-3 has identified them with their roles played by them in the present crime and that there is no reason for false implication of the accused persons in this case of such nature particularly when no ill-will, grudge or enmity has either been alleged or proved. It is also submitted that simple explanation of accused persons that they were lifted from their respective houses and then implicated in this case has no value in the eyes of law.
27. On the other hand, learned counsel for the accused persons submitted that prosecution case is full of flaws and contradictions. He argued that testimony of PW-3 is not reliable and should be discarded.
28. Elaborating his arguments, learned defence counsel pointed out some contradictions emerging from testimony of PW-3 Manoj Chauhan/victim. PW-3 in the FIR stated that one person had caused injury with knife whereas in the witness box, he deposed that two persons had shown knife to him. In the FIR, victim stated that he was returning from his uncle's house which was at West Arjun Nagar but in the witness box, he stated that the said house was at Krishna Nagar. Further, spot of the incident in the FIR was stated in front of Sri Ram Hospital whereas in the witness box, spot of incident was described at Swarn Cinema. In the FIR, it was stated that one police official had met the victim whereas in the evidence, two police officials are stated to have met the SC No. 47/2014 State Vs. Sonu etc. Page No. 8 of 14 victim. Learned counsel further pointed out that PW-3 did not even tell the registration number of the Maruti car in which the accused persons had allegedly come. Further, no description is given of the clothes worn by the accused persons. Learned counsel submitted that accused persons were lifted from their houses and falsely implicated in this case. It is also submitted by him that in the FIR and in his statement recorded before this court, PW-3 complainant submitted that culprits were of age group of 25-30 years but record itself shows that none of the accused was more than 21 years at the time of the alleged offence.
29. I have considered the submissions.
30. PW-3 had apparently received various injuries. As per MLC Ex.PW9/A, PW-3 had received the following injuries:
i) Stab injury on left side chest ancillary region 3 cm x 1 cm.;
ii) Stab wound on left nipple area 4 cm x 1 cm.;
iii) Stab wound on left temporal area 4 cm x 1 cm.; and
iv) CLW on left hand 4 cm x 2 cm.
31. Evidence of an injured person is accorded special status under the law. The fact that the witness had received injuries proves his presence at the spot. Reference may be made to (2010) 10 SCC 259 titled "Abdul Sayeed v.
State of M.P.", wherein Hon'ble Supreme Court observed as follows:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
32. However, if there are some major contradictions, testimony of even SC No. 47/2014 State Vs. Sonu etc. Page No. 9 of 14 an injured witness becomes liable to be discarded. Thus, it is to be seen whether there are any contradictions or not, and if so, whether these are major or minor contradictions?
33. Regarding contradictions, the judgment of Hon'ble Supreme Court reported as (2011) 6 SCC 279 titled "A. Shankar v. State of Karnataka" may be noted. It was observed by Hon'ble Apex Court as under:
"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 credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
[Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaroop & Anr. v. State of U.P.,AIR 2011 SC 280]"
34. Further in State of H.P. v. Lekh Raj, (2000) 1 SCC 247, it was observed as under:
SC No. 47/2014 State Vs. Sonu etc. Page No. 10 of 14 "7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala, [1974] 3 SCC 767, held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of Madhya Pradesh, [1981] SCC (Crl.) 676, this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v, Kalki & Anr., [1981] 2 SCC 752 held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, 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.
8. Referring to and relying upon the earlier judgments of this Court in State of U.P. v, M.K. Anthony, AIR (1985) SC 48, Tehsildar Singh and Anr. v State of U.P., AIR (1959) SC 1012; Appabhai and Anr. v. State of Gujarat, JT (1988) 1 SC 249; Rami alias Rameshwar v. State of Madhya Pradesh, JT (1999) 7 SC 247 and Bhura alias Sajjan Kumar v. State of Madhya Pradesh, JT (1999) 7 SC 247, this Court in a recent case Leela Ram v. State of Haryana and Anr., JT(1999) 8 SC 274 held:
"There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a 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 embelishment, 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..........
The Court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing while some others run away from the scene and yet SC No. 47/2014 State Vs. Sonu etc. Page No. 11 of 14 there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise."
35. Considered in light of the law as noted above, the contradictions as pointed out by learned defence counsel, in my view, are only minor contradictions which do not affect core of the prosecution case. The place where the uncle of PW-3 resided is not of any relevance. The spot of incident is very much clear from testimony of PW-3 which has been further clarified by the IO/PW-11 through the site plan. PW-3 has categorically stated that the incident happened before Swarn Cinema near a Nursing Home. He explained that both the places are nearby. PW-3 in his statement Ex.PW3/A had stated the name of the Nursing Home as Sri Ram Hospital. It does not prejudicially affect his testimony if he was not able to recall the said name in the witness box.
36. The mental condition of PW-3 at the time he gave his statement Ex.PW3/A has to be kept in mind. PW-3 must have been in a state of severe shock at that time. Therefore, if PW-3 did not say in Ex.PW3/A that two person had shown knife makes no difference.
37. Learned defence counsel submitted that PW-3 had told the age of the offenders between 25-30 years whereas none of the offender was above 20 years. In my view, inability of PW-3 to tell exact age of the accused persons cannot be such a factor which will demolish his testimony.
38. Inability of PW-3 to tell the number of the Maruti car in which accused persons had come is also of no significance. The pace at which the SC No. 47/2014 State Vs. Sonu etc. Page No. 12 of 14 shocking and painful events were happening with PW-3 gave him no opportunity to note down number of the said car.
39. PW-3 did tell that accused persons were wearing pants and shirts but could not tell their colour. Merely because he could not tell colour of the clothes, his testimony cannot be discarded.
40. Learned defence counsel further had highlighted that statement u/s 161 CrPC of PW-8 was recorded on 20.03.2010 whereas the incident was of 09.03.2010. He submitted that this much time gap must lead to conclusion that PW-8 is a planted witness. I find no merit in this argument. Merely because of fault of the IO in recording the statement belatedly, testimony of PW-8 cannot be discarded. There is further no merit in the submission of learned defence counsel that testimony of PW-3 should be doubted because PW-3 failed to say in Ex. PW3/A that there were two police officials who had met him after the incident (as deposed to by PW-8). The condition of PW-3 at that time cannot be overlooked. He was robbed and badly injured minutes before he met PW-8. Moreover, in MLC Ex. PW-9/A, it recorded that PW-8 was the person who had brought injured/PW-3 to the hospital. This corroboration is sufficient.
41. PW-3 appears to be reliable witness. There was no reason for him to falsely implicate the accused persons. No such reason has been brought on record. PW-3 had identified accused Sonu in judicial TIP. Accused Jinku and Lakhan had refused to join the TIP. They have been unable to bring on record any material which could justify their refusal to join the TIP. As such the said refusal has to be viewed adversely. Further, in the case of Munna v. State (NCT SC No. 47/2014 State Vs. Sonu etc. Page No. 13 of 14 of Delhi) 106 (2003) DLT 592 (SC), it was held that where an accused himself refuses to participate in TIP, it is not open to him to contend that identification by the witness for the first time in the court cannot be relied upon. Hence, prosecution was able to establish identity of all the accused persons satisfactorily.
42. Testimony of DW-1 is not of any value. He made only a bald statement without any corroborative material.
43. It is pertinent to mention here that age verification of all the accused persons was carried out and all of them were found to be major on date of committing the crime.
44. As a result of the above discussion, it is held that prosecution has been able to prove the charges beyond reasonable doubts.
45. Accused Lakhan, at the time of committing the robbery, was armed with a knife which is a deadly weapon. The knife was shown to the victim as well. Further, victim/PW-3 was injured also. Therefore, he is held guilty and convicted for offence punishable under Sec. 392 r/w 397 IPC and 394 IPC.
46. Accused Sonu and Jinku @ Jinga are accordingly held guilty and convicted for the offence punishable under Sec. 392 and 394 IPC.
47. Let the convicts be heard on sentence.
Announced in open court on 9th day of February, 2015 (Sanjay Bansal) ASJ-03 (East) KKD Courts: Delhi.
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