Delhi District Court
State vs . Laal Mohd. @ Lalu on 1 August, 2023
IN THE COURT OF SH. AJAY NARWAL, MM-02, NORTH DISTRICT,
ROHINI COURTS, DELHI
State vs. Laal Mohd. @ Lalu
FIR No. 32/2021
PS: SP Badli
U/S: 392/394/411/34 IPC
ID number of the case : 3046/2021
Date of commission of offence : 19.01.2021
Date of institution of the case : 26.04.2021
Name of the complainant : Pradeep Kumar Vishwakarama
Name of accused : 1. Laal Md. @ Laalu S/o Sh. Md. Israil, R/o
4/388, J.J. Colony, Bhalswa Dairy, Delhi.
2. Ankit @ Rahul S/o Ram Sagar Saini R/o
H.No. 457, gali no. 6, Rajeev Nagar,
Bhalaswa Dairy, Delhi.
3. Mahavir @ Golu @ Khabri S/o Govind
Ram R/o H.No. B-836, K Block, Jahangir
Puri, Delhi.
Offence complained of or proved : U/s 392/394/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 01.08.2023
JUDGMENT
1. The case of the prosecution in brief is that on 19.01.2021 at about 06.10 AM at Mubarak Chowk bus stand towards Sindhu Boarder, Karnal Bypass within the jurisdiction of PS SP Badli, all the accused persons committed robbery from complainant Pardeep Kumar Vishwakarama s/o Phool Chand of Rs. 7,000/- as well as FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 1 of 25 two mobile phone make MI Note-8 Pro & Samsung Galaxy 6S belonging to complainant without his consent using white eco car bearing no. DL 6CL 4325 and the accused persons voluntary causing hurt while committing the robbery on the highway between sunset and sunrise and thereby accused persons committed offence punishable under Section 392/394/34 IPC. Further, on 20.01.2021 from the bed of the room at H.No.457, gali no.6, Rajiv Nagar, Bhalaswa Dairy, accused Ankit @ Rahul got recovered mobile phone make Realme of dark grey colour belonging to the complainant Pardeep Kumar alongwith one more mobile phone in DD No.2 dated 20.01.2021 of operation cell/NW Delhi which was seized vide seizure memo Mark X which was dishonestly received or retained by accused Ankit knowing or having a reason to believe the same to be the stolen property which was robbed on abovesaid date and time and thereby accused Ankit also committed offence punishable under section 411 IPC. Thereafter, an FIR was registered in the present case.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above-named accused persons and challan was presented in the Court.
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 2 of 25
3. Copies of challan and relevant documents were supplied to the accused person free of costs as envisaged under Section 207 of Cr.P.C.
4. A prima facie case under Section 392/394/34 of IPC was found to be made out against the accused persons namely Laal Mohd. @ Laalu, Ankit @ Rahul and Mahavir @ Gola and also under Section 411 of IPC against the accused Ankit. Accordingly, on 31.01.2022, charge was framed upon the accused persons under Section 392/394/34 IPC and separate charge against accused Ankit was framed under 411 of IPC. The accused persons pleaded not guilty and claimed trial.
5. Vide his separate statement recorded, the accused persons admitted the following documents under Section 294 Cr.PC. It is pertinent to mention that accused persons admitted the existence of FIR and not the truth of the contents thereof:-
Sl. Documents Proved Witnesses dropped
No.
1. Statement of HC Chetan who took rukka to HC Chetan
the PS for registration of FIR
2. FIR No. 32/2021, PS S.P. Badli DO/ASI Vinod
3. DD No.8A dated 19.01.2021 PS SP Badli DO/ASI Vinesh
4. Register no. 19 MHC(M), PS SP Badli
5. TIP proceedings. Ld. MM Sh. Sukrit
Singh.
In view of the admission of above documents under Section 294 Cr.PC, the formal examination of aforesaid witnesses were dispensed with.
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 3 of 25
6. In order to prove its case, prosecution examined following five witnesses:-
7. PW1 Sh. Pradeep deposed that on 19.01.2021, he left his house as he had to go to Ambala and reached Karnal bypass at about 6.00 am and started waiting for the public transport and after some time, one EECO car, white colour came there and the person sitting in the said car asked him as to where he had to go and he told him that he would go Bhalgarh and he said that he was also going there and some other passengers were also present in the said car, therefore, he also sat in the said car behind the driver's seat and the driver of the said car started driving the same and he took the said car on the service road, when he objected the same, he said that he had to take another person also. He further deposed that thereafter, two persons, who are the sitting in front of his seat asked him to hand over whatever money and other valuable items, he had, to them and thereafter, one of his mobile phones, make Samsung was taken by them and he had also handed to him his another mobile phone make Redmi note-8 Pro when they were trying to snatch his purse, he himself handed over his purse containing Rs. 7,000/- and other documents to them and thereafter, they took out the mobile sims from the said mobiles and handed over the SIMS to him and retained the mobile with them, on the same way, they took out Rs. 7,000/- from the said purse and thereafter, handed over the said purse to him and in the meantime, driver of the said car kept driving the same and took u-turn from Nangli and left him near the flyover of Bhalswa and thereafter, he came to auto stand and took the mobile phone of one of the auto drivers and made a call to his father.
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 4 of 25 He further deposed that he came there and thereafter he made a call at 100 number, police arrived there and he narrated the whole incident to the police officials, his statement was recorded by the police official i.e., Ex.PW1/A. He further deposed that after 3-4 days of the incident, he received the call from the police station stating that his mobile phone had been recovered and accordingly, he went to police station and later on, he got released his mobile phones on supardari, he had participated in the TIP proceedings of accused persons and there, he also identified the accused persons in the presence of Ld. Magistrate. Witness identified all the accused persons in the court during the TIP Proceedings, he had identified two of the accused persons and that time, could not identify the third accused as the TIP proceedings were conducted through computer and at the time of the TIP proceedings of the third accused, the screen was blured. However, one day, he had gone to the police station as his statement had to be recorded there and in the police station, all the three accused persons were present and he had identified them there and told to the police officials. Witness correctly identified the case property i.e., mobile phone and bill of the mobile phone, make Redmi Note Pro i.e. Ex.PW1/B. Ld. APP cross examined the said witness as he was not disclosing the complete facts and witness admitted that accused persons said that "JO BHI TERE PASS HAIN SE NIKAL DE NAHIN TO TUJHE CHODENGE NAHI" and that due to the fear, he did not object, and he had shown the place of incident to the police official, who prepared the site plan at his instance. Copy of TIP proceedings of accused Lal Mohammad i.e. Mark 1-A (colly). The security bond given by him at the time of FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 5 of 25 supardari of his Redmi Note-8 Pro mobile phone i.e. Ex. PW1/C. The Affidavit given by him at the time of supardari of his mobile phone, make Samsung i.e. Ex. PW1/D. He further deposed that he did not give the bill of mobile phone, make Samsung to the police official as same has been lost. Panchnama prepared at the time of release of his mobile phones and he could not tell whether registration number of the said EECO car DL6CL-4625 due to lapse of long time. He denied that he was deliberately not disclosing the registration number of the said car. He denied that accused persons had beaten him with slaps and fist blows at the time of incident. Confronted from his statement recorded us 161 of Cr.PC Le Mark C from portion A to A-1, where it is so recorded and which has been read over to the witness in vernacular. (Vol. They looted him by showing knife to him), his above said Redmi 8 Note pro was in the name of his brother Sh, Santosh Kumar. Witness was duly cross examined by Ld. Defence counsel for the accused persons.
8. PW2: Sh. Santosh Kumar vishwakarma deposed that on 03.03.2021, he went to PS SP Badli along with his brother Sh. Pradeep and provided the bill of the mobile make Redmi Note-8 pro which involved in the present case and the said phone was used by his brother Pradeep to the IO. IO recorded his statement in this regard. Witness was duly cross examined by Ld. Defence counsel for the accused persons.
9. PW3ASI Chetan deposed that on 19.01.2021, he was posted as HC at PS SP Badli FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 6 of 25 and his duty hours were from 8.00 pm to 8.00 am as he was on emergency duty and on that day, at about 6.00 am, PCR call vide DD No. 8 A was received, thereafter, he along with SI Uday Singh went to Karnal bypass and where, complainant Kumar was found present. SI Uday Singh enquired about the case from Sh. Pradeep Kumar and thereafter, Pradeep Kumar had shown the road going towards Sindu Border from Mukarba Chowk Bus stand from where he took lift in a car and thereafter, we tried to search the offenders with complainant but of no avail. He further deposed that thereafter, IO/SI Uday Singh recorded the statement of Sh. Pradeep Kumar, thereafter, IO prepared the tehrir and handed over the same to him for registration of FIR and he handed over the tehrir to DO PS SP Badli and got the FIR registered and returned to the spot and handed over the original rukka and copy of FIR to IO and thereafter, IO prepared the site plan at the instance of Pradeep Kumar. IO recorded his statement in this regard. Witness was cross examined by the Ld. Defence counsel for the accused persons.
10. PW-4 HC Narender deposed that on 20.01.2021, he was posted at Operation Cell, North West District, Delhi, on that day he along with Ct. Anlash, Ct. Himanshu, Ct. Praveen, Ct. Bholu, Ct. Sandeep Nish and Ct. Pradeep were on patrolling duty in the north west district vie DD No. 2 dated 20.01.2021 then, at about 6.00 am, one secret informer met Ct. Ankush and apprised that 4-5 boys who are in habit of committing the robbery and theft are roaming in Maruti Eco car of white colour. The said boys have already committed number of incidents and the said vehicle may be available at ring FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 7 of 25 road in search of any probable victim and if raided, they may be caught and thereafter he asked 4-5 passersby on the Bhalswa Chowk to join the raiding party after telling them facts and circumstances, however, they all left without telling their names and addresses and after reasonable excuses. He further deposed that no written notice was given due to paucity of time, without wasting any further time, they made two separate party and started patrolling on the ring road in separate vehicles then at about 8.00 am, one Eco car was found coming from the side of Jahangir Puri towards Mukarba Chowk near Bhalswa flyover then secret informer pointed out towards the same as the same Eco car where the accused may be present, and thereafter, he asked the secret informer to deboard the vehicle and thereafter, he signaled the other raiding party sitting in the private vehicle about the said white Eco car and the said Eco car was signaled to stop, it was having registration no. DL6CL-4325 and thereafter, he stopped his vehicle in front of the said ECO car and the other raiding party stopped their car just on the back side of the said ECO car, which was being driven by SI Himanshu. He further deposed that thereafter, the persons sitting in the said Eco car were trying to flee away from the spot, however, with the help of raiding party, we apprehended those persons, whose names, we came to know as Mahavir @ Golu @ Khabri s/o Sh. Govind Ram, Amit Kumar @ Lambu, s/o Sh. Sibu Mandal, Sachitanand Saini @ Lali s/o Vinod, Lal Mohd @ Lallu s/o Mohd. Israil and Ankit @ Rahul s/o Sh. Ram Sagar. Thereafter, they online checked about the ownership of the said ECO car, wherein they came to know that the said ECO car was found to be stolen in case FIR No. 1056/2021, PS Wazirabad. He further FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 8 of 25 deposed that the apprehended persons told them that they had stolen the said ECO car from village Jagatpur on 11/12.01.2021 and thereafter, he interrogated each of the accused separately. The said ECO car was seized by him vide seizure memo now Ex. PW4/A and thereafter, Ankit @ Rahul took us to his home from there, he pointed out towards the bed lying in the room and from the mattress of the bed, he produced two mobile phones, wherein one was of Redmi robbed on 19.01.2021, he seized the said mobile phone u/s 102 of Cr.P.C vide seizure memo Ex. PW4/B and the accused Mahavir @ Khabri also took them to his home and made them to recover two mobile phones from the bed lying in the room of the accused Mahavir @ Khabri, he also seized the same vide seizure memo Ex. PW4/C, wherein one mobile phone was of Samsung and robbed on 19.01.2021 from Mukarba Chowk, the two apprehended persons were JCL and he arrested the other three apprehended persons namely Ankit, Mahavir and Lal Mohd and recorded their disclosure statement separately. He further deposed that thereafter, he got the medical examination of the accused persons, the accused persons were kept in muffled face and information regarding the same was given to PS SP Badli. The case property was deposited with PS Jahangir Puri from where later on SI Uday transferred the mobile phone make Samsung and Red MI note-8 pro through road certificate from PS Jahangir Puri to PS SP Badli. IO/SI Uday met him and recorded his statement in this regard on 24.03.2021. Witness correctly identified the accused persons namely Lal Mohd, Ankit and Mahavir in the court during his examination. Witness also correctly identified the case property while showing the three photographs of the mobile FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 9 of 25 phone of Red Mi Dark Grey colour, which were already record and witness replied that it is the same mobile phone which was visible in the photographs, which was recovered from accused Ankit by him on 20.01.2021. Ld. Counsels for the accused persons submit that it is not the case property in the present case and need not to be produced. In view of the same, production of the ECO car is hereby dispensed with. Witness was duly cross examined by Ld. Defence counsel for the accused persons.
11. PW5 Inspector Uday Singh, deposed that on 19.01.2021, he was posted at PS SP Badli as SI and on that day, on receipt of DD No. 8 A, he along with HC Chetan went to Karnal bypass, where caller Sh. Pradeep Kumar met them and thereafter, he recorded the statement of Sh. Pradeep Kumar and Pradeep Kumar had also shown them the place at Mukarba Chowk bus stand going towards Sindhu border from where the lift was given by the accused persons in the car. He further deposed that thereafter, he prepared the tehrir and handed over the same to HC Chetan for registration of FIR, who went to PS, got the FIR registered and returned to the spot along with copy of FIR and original rukka and handed over the same to him and thereafter, he prepared the site plan at the instance of Sh. Pradeep, thereafter, they tried to search for the accused persons but of no avail. He further deposed that thereafter, they relieved the complainant from the spot and came back to the PS and he recorded the supplementary statement of complainant Sh. Pradeep Kumar. He recorded the statement of HC Chetan in the PS and thereafter, he got the information from Special staff that they have apprehended certain accused persons in FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 10 of 25 Kalandra proceedings, who made the disclosure of their involvement in the present case and also got recovered the case property of the present case and thereafter, he moved the application before the concerned court for interrogation and formal arrest and thereafter, he formally arrested the accused Lal Mohd. Mahavir and Ankit from Tihar Jail as per permission granted. He further deposed that he also recorded the disclosure statement of accused persons and the case property involved in the present case was recovered by the special staff and deposited with PS Jahangir Puri, he got the same brought to PS SP Badli through road certificate and on 01.02.2021, TIP of the accused persons were got conducted through V.C, wherein the complainant Pradeep Kumar identified the accused Lal Mohd and Mahavir, however, complainant was not able to identified the accused Ankit. The TIP proceedings are already Mark 1-A to 1-C. He further deposed that on 05.02.2021, complainant Pradeep Kumar visited the PS to know about the status of his case, wherein the accused persons were sitting and there complainant Pradeep Kumar identified the accused Ankit as well and gave the explanation that he was not able to identify the accused Ankit during TIP proceedings as it was conducted through computer and the screen was blurred now he had seen accused Ankit physically and correctly identified him as one of the offenders, complainant also told us that accused persons had also given beatings to him while committing the offence as the accused slapped him and beaten him by fist blows. Complainant also told that he was nervous on the day of offence and that is why he was not able to tell this fact during his first statement recorded on the fateful day. He recorded his statement in this regard. He further FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 11 of 25 deposed that on 03.03.2021, complainant got his mobile phone released on supardari after obtaining the order from the concerned court vide supardaginamas i.e. Ex.PW1/C and Ex PW1/D. The bill of the mobile phone of Redmi Note-8 pro produced by complainant was taken on record i.e. Ex. PW1/B. As the mobile phone was in the name of Santosh, he also examined him and recorded his statement in this regard. Witness correctly identified the accused persons namely Lal Mohd, Ankit and Mahavir in the court. After completion of investigation, he filed the charge sheet before the concerned court. Witness also identified the case property as it was shown in the photographs. Ld. Counsels for the accused persons submit that it is not the case property in the present case and need not to be produced. In view of the same, production of the ECO car is hereby dispensed with. Witness was duly cross examined by ld. Defence counsel.
12. Subsequently, PE was closed vide order dated 02.05.2023.
Statement under section 313 Cr.PC
13. After completion of prosecution evidence, joint statement of accused persons under Section 313 Cr.P.C. was recorded on 22.05.2023. All incriminating material brought on record were put to the accused persons, to which they denied the allegations made against them and pleaded that they have been falsely implicated in this case. Accused persons did not opt to lead any evidence in their defence and the same was closed.
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 12 of 25
14. Arguments heard. Record perused.
15. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the ac- cused persons beyond reasonable doubt as testimony of all the witnesses were not im- peached by the accused persons. It is submitted by the learned defence counsel that the accused persons have been charged for the offences punishable under section 392/394/411/34 of IPC but the prosecution has failed to prove the case to prove the guilt of the accused persons beyond reasonable doubt.
16. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
17. At this stage, it would be advantageous to refer section 392 and 394 of IPC which reads as under:-
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway be-
tween sunset and sunrise, the imprisonment may be ex-
tended to fourteen years.
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 13 of 25
18. Section 390 of the IPC defines robbery and reads as under:-
In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntar- ily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extor- tion by putting that person in fear of instant death, of in- stant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, in- duces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other per- son in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations.
19. In the judgment of Venu Vs State (2008) 3 SCC 94, the Hon'ble Supreme Court defined the essential ingredients of the offence u/s 392 IPC as under:-
"8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 14 of 25
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft."
20. Section 394 of IPC provides for voluntarily causing hurt while committing rob- bery and reads as under:-
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit rob-
bery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprison-
ment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
21. Now let us discuss the oral evidence of the public witness in this case. In order to prove its case, the prosecution has examined only one pubic witness i.e. PW-1, Sh. Pardeep S/o Phool Chand who is the complainant in this case. He proved his statement Ex. PW-1/A. He deposed that on the date of incident, i.e. on 19.01.2021, he left his house as he had to go to Ambala and reached Karnal bypass at about 6.00 am and started waiting for the public transport and after some time, one EECO car, white colour came there and the person sitting in the said car asked him as to where he had to go and he told him that he would go Bhalgarh and he said that he was also going there and some FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 15 of 25 other passengers were also present in the said car, therefore, he also sat in the said car behind the driver's seat and the driver of the said car started driving the same and he took the said car on the service road, when he objected the same, he said that he had to take another person also. He further deposed that thereafter, two persons, who are the sitting in front of his seat asked him to hand over whatever money and other valuable items, he had, to them and thereafter, one of his mobile phones, make Samsung was taken by them and he had also handed to him another mobile phone make Redmi note-8 Pro when they were trying to snatch his purse, he himself handed over his purse contain- ing Rs. 7,000/- and other documents to them and thereafter, they took out the mobile sims from the said mobiles and handed over the SIMS to him and retained the mobile with them, on the same way, they took out Rs. 7,000/- from the said purse and thereafter, handed over the said purse to him. He further deposed he had participated in the TIP proceedings of accused persons. PW-1 identified all the accused persons in the court. He further deposed that during the TIP Proceedings, he had identified two of the accused persons and that time, could not identify the third accused as the TIP proceedings were conducted through computer and at the time of the TIP proceedings of the third accused, the screen was blured.
22. Ld. Counsel for the accused persons during final arguments submitted that PW-1 turned hostile and didn't support the case of prosecution as such his evidence cannot be relied upon. The Hon'ble Supreme Court in the case of Rajesh Yadav & anrs etc. Vs. FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 16 of 25 State of U.P., Criminal Appeal No.s 339-340 OF 2014 has observed as follows with respect to hostile witness:-
"21.The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean tes- timony of a witness turning to depose in favour of the op- posite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not de- nuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief ex- amination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situa- tion where the chief examination was completed and there are circumstances indicating the reasons behind the sub- sequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the cor- rect conclusion.
23. On the law laid down in dealing with the testimony of a witness over an issue, we would like to place reliance on the decision of this Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567:
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 17 of 25 "81. It is settled legal proposition that: "6. ... the evi-
dence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hos-
tile and cross-examined him. The evidence of such wit-
nesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the ex-
tent their version is found to be dependable on a careful scrutiny thereof."
24. The aforesaid judgement of Hon'ble Supreme Court has observed that evidence of hostile cannot be rejected in toto and the testimony of such witness can be accepted to the extent their version is appears to be dependable on a careful scrutiny. Coming to the testimony of PW-1, he has clearly deposed that all the incident during which offence was committed against him and he has also identified the accused persons before the Court. Further, it should also be noted that PW-1 has identified the accused persons namely Lal Mohammad and Mahavir during the TIP proceedings and the accused persons had ad- mitted the genuineness of TIP proceedings Ex. P-5 u/s 294 Cr.PC. It is a relevant fact which becomes all the more important after considering that accused persons namely Lal Mohammad and Mahavir have correctly identified by PW-1 accused during the trial. PW-1 didn't identify the third accused persons namely Ankit, however, PW-1 identified the said accused during the trial and submitted that he couldn't identify the accused Ankit during the TIP as proceedings were conducted through computer and the screen was blurred at that time. The recovered case property i.e. Mobile was also identified by PW-1 during his examination. On careful scrutiny of testimony of the testimony of PW-1 found to be reliable as he clearly deposed the entire incident and there are no major con-
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 18 of 25 tradictions in his testimony and he has supported the story of the prosecution. Further, PW-1 has also identified all the three accused persons before the Court.
25. Ld. Counsel for the accused persons during final arguments submitted that there are minor contradictions in the testimony of the PW-1 as he was not able to remember number the number of EECO car which was used by the accused persons while commit- ting the offence and he was not able to remember the name of the auto driver from whose mobile he called the police. The minor contradiction in the testimony of PW-1 is not fatal to the case of the prosecution. It is pertinent to mention that apart from minor contradictions, PW-1 has remained consistent his her cross examination and during his deposition, he supported the case of the prosecution. At this stage, it further become rel- evant that in the case of State of Karnataka v. Suvarnamma and Anothers (14.10.2014), it was observed that:-
" Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if, a video tape is replayed on the mental screen.
"(10) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once, that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks, infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 19 of 25 evidence is shaken as to rander is unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to from the opinion about the general tenor of evidence given by the witness, the appellate court which had not disbenefit will have to attach due weightage to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals".
26. Ld. Counsel for the accused persons during final arguments submitted that apart from the PW-1, prosecution has not examined any other public witness. It is settled principle of law that conviction can be based upon the sole testimony of a witness if it inspires confidence. There is no rule of law that independent corroboration is required in all cases/circumstances. Reliance may be placed upon the law laid down in Appabhai v. State of Gujarat AIR 1988 SC 696. Further, in the case of State of UP Vs Anil Singh, AIR 1988 SC 1998, the Hon'ble Apex Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. The Court held that if there is a ring of truth in the main, the case should not be rejected. The Hon'ble Supreme Court FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 20 of 25 observed that it is necessary to remember that 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. One is as important as the other. Both are public duties which the Judge has to perform. It is unfortunate to note that the trend is to have easy recourse of appreciating evidence and reject it on the ground of some discrepancy here and there without making any effort to disengage the truth from falsehood.
27. Furthermore, in Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336, it was held by Hon'ble Delhi High Court that it is very hard these days to get association of public witnesses in criminal investigation and normally, nobody from the public is pre- pared to suffer any inconvenience for the sake of society.
28. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held that in our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony.
29. Ld. Counsel for the accused persons during final arguments submitted that only one public witness was examined by the prosecution and all other witnesses examined by the prosecution are police witnesses who testimonies cannot be relied upon. In the in- stant case, it is an undisputed fact that only public witness was examined by the prosecu- tion who was the complainant in the present matter. However, mere non-examination of FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 21 of 25 other public witnesses apart from the complainant would not automatically make the tes- timony of police witnesses doubtful. It is pertinent to mention that PW-1 has stated cate- gorically in his testimony the accused persons took the car to the service road and com- mitted the offence at 6 am. The offence was committed at 6 am and at service road. At 6 am that too at a lonely place, it is not expected to find normal public person as such non- examination of public witness apart from the PW-1 appears to be justified.
30. It is relevant to note that it is a settled proposition of law that the testimony of po- lice officials cannot be discarded away merely because of the fact that no public wit- nesses were examined. It is another matter that their testimonies should be scrutinized in more detail. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir vs. State of Delhi [(1996) 3 SCC 338, wherein deal- ing with a similar question, the Hon'ble Apex Court held the inter-alia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 22 of 25 can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
31. Further, the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar v. State of Maharashtra (1995) 4 SCC 255 dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
32. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
33. In the instant case, it should be noted that PW-1 has deposed that the accused persons took the car to the service road and committed the offence at 6 am. The offence was committed at 6 am and at service road. At 6 am that too at a lonely place, it is not FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 23 of 25 expected to find normal public person. In such situation, it could not be expected from the IO to join public persons. The recovered case property was correctly identified by the complainant and the same was released to him on superdari. PW-1 has been found to be reliable and his testimony do not suffer from any material contradictions on the point of recovery. In view of the above said discussion, the prosecution is successful in prov- ing the charge u/s 392 of IPC against the accused persons.
34. It is apposite to mention that as per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. The essential ingredient of Sec- tion 394 of IPC is that the accused persons while committing robbery voluntarily caused hurt to the victim. Perusal of the testimony of PW-1 would reveal that he has not stated anything with respect to the fact that accused persons caused hurt to him. Infact, Ld. APP for the State gave a suggestion to the accused persons had beaten him slaps and fist blows at the time of incident which was denied by PW-1. Hence, prosecution has failed to prove the case under Section 394 of IPC against the accused persons beyond reason- able doubt.
35. It is pertinent to mention that once the accused is found guilty of committing the offence under Section 392 of IPC than on same facts he cannot be held guilty of com-
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 24 of 25 mitting the offence of Section 411 of IPC. Reference can be to the judgement of the Hon'ble High of Allahabad in the case of Gopi Jaiswal V. State of Uttar Pradesh, Criminal Appeal No. - 1899 of 2009 wherein following was observed:-
"A real thief cannot be a receiver of a stolen prop- erty. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under Section 411 IPC".
36. In view of the above said discussion, the prosecution has failed to prove the charges u/s 394 IPC against the accused persons and successful in proving the charge u/s 392 of IPC against the accused persons. Accordingly, accused Laal Md. @ Laalu S/o Sh. Md. Israil, Ankit @ Rahul S/o Ram Sagar Saini and Mahavir @ Golu @ Khabri S/o Govind Ram are hereby acquitted u/s 394/411 of IPC and convicted under u/s 392 IPC.
37. Put up for arguments on sentence pursuant to the compliance being done of the judgment of Karan Vs. State (NCT of Delhi CRL.A. 352/2020, Delhi High Court).
38. Copy of judgment be given to convicts free of cost.
Dictated directly into the computer (AJAY NARWAL)
and announced in the open Court, MM-02 (North)/
On 01st August, 2023. Rohini Courts, Delhi
01.08.2023
FIR No. 32/2021 State V. Laal Mohd. & Anr Page No. 25 of 25