Delhi District Court
1 State vs Riyaz, Fir No.38/08, Ps Mayur Vihar on 1 February, 2010
1 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar
IN THE COURT OF SHRI DILBAG SINGH: ADDL. SESSIONS JUDGE
01(E): KARKARDOOMA COURTS: DELHI.
Sessions Case No.04/09
Date of institution: 5.3.2009
Date on which reserved for orders:02.01.2010
Date of delivery of order:25.1.2010
State v/s Riyaz S/o Abdul Wahab
R/o H.No.20/372, Trilok Puri, Delhi.
FIR NO.38/08
PS Mayur Vihar
U/s 392/394/397 IPC & 25 & 27 of Arms Act.
JUDGMENT:
1. Case of the prosecution as disclosed from the report under Section 173 Cr.P.C. in brief is as follows. On 10.2.2008, SI Girdhari Lal alongwith Ct. Pawan, while patrolling reached in the area of Mayur Vihar, Phase1, Pocket1, opposite Ram Mandir, where they heard the noise of one Aakash, who had been robbed. They also saw 4/5 boys running. Out of those 4/5 boys, one boy namely Riyaz was overpowered by them while others managed to escape. SI Girdhari Lal recorded the statement of Aakash, the crux of which is being given infra.
2. Shri Aakash interalia stated that on 10.2.2008,around 8 p.m.,he was present at Mayur Vihar Phase1,Pocket1 near Ram Mandir.That he was 2 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar talking with his father on mobile phone. That suddenly, someone caught hold of him from his neck. That when he turned, he saw a boy whose name later on was revealed as Riyaz, had caught hold of him from his neck and put a knife on his neck and directed him to keep quite. That in the meantime 3/4 other associates of Riyaz surrounded him. That Riyaz removed gold chain from his neck and his other associates removed his mobile phone make NOKIA 6300 from the left side pocket of his wearing pant, snatched his other mobile make NOKIA 3060, removed his purse containing Rs.800/, driving licence, debit card, credit card and some visiting cards from the pocket of his pant. That thereafter he was assaulted with the butt of knife. That Riyaz had threatened him to remain quite and in case he would raise alarm, he would be killed. That on seeing the police officials coming, he raised alarm and with the help of police officials, Riyaz was overpowered,while his others associates managed to escape from the spot.
3. On the above discussed statement (Ex.PW3/A) of Aakash, ruqqa (Ex.PW4/A) was recorded by SI Girdhari Lal, on the basis of which, a case was registered u/s 394/397/411 IPC as well as u/s 27/54/59 Arms Act. SI Girdhari Lal prepared the site plan at the instance of Aakash, recorded the 3 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar statements of witnesses, prepared the sketch of the knife, sealed it in a cloth parcel and seal GLK was affixed over the parcel. He recorded the disclosure statement of the accused, arrested him, conducted his personal search and after completion of necessary investigation, he filed the challan.
4. Ld. M.M. in compliance of the provisions of Section 207 Cr.P.C. supplied copies to the accused and ultimately the case was allocated to this court.
5. On 18.3.2009, charge under Section 392/394/397 IPC and u/s 25 and 27 of Arms Act were framed against the accused, to which he pleaded not guilty and claimed trial.
6. In support of its case, prosecution has examined PW1 ASI Dharshan Lal, PW2 Const. Pawan Kumar, PW3 Shri Aakash Minocha and PW4 SI Girdhari Lal.
7. PW1 ASI Darshan Lal has testified that on 10.2.2008, around 10 p.m., he recorded the FIR of this case on the basis of ruqqa presented by Ct. Pawan Kumar, sent by SI Girdhari Lal. He proved copy of the same as Ex.PW1/A and his endorsement on the margin of the ruqqa concerning DD NO.28A at point X. He further testified that investigation of the case 4 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar was handed over to SI Girdhari Lal.
8. PW2 Const. Pawan Kumar and PW4 SI Girdhari Lal have testified about the manner in which the investigation of the case was conducted. They have testified that on 10.2.2008, around 8.10 p.m., they were present opposite Ram Mandir, Mayur Vihar, Phase1, they saw 3 / 4 persons were running and one person was raising alarm that his mobile phone and chain were snatched. That they with the help of complainant overpowered accused Riyaz, while the others managed to escape. That on cursory search of accused Riyaz, a gold chain was recovered from his possession, which was identified by complainant Aakash Minocha. That one knife was also recovered from the right dub of the pant worn by the accused. That statement of the complainant Ex.PW3/A was recorded, ruqqa Ex.PW4/A was prepared on the basis of which case was got registered, vide FIR Ex.PW1/A. That sketch of the knife Ex.PW4/B was prepared at the instance of complainant. That knife was converted into cloth parcel and sealed with the seal of GLK which was seized vide memo Ex.PW2/B. That gold chain was also converted into cloth parcel, sealed with the seal of GLK and was seized vide memo Ex.PW2/C. That disclosure statement of accused was recorded as Ex.PW4/C. They have 5 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar further testified that accused Riyaz was arrested vide arrest memo Ex.PW2/D and his personal search was conducted vide memo Ex.PW2/E.
9. PW3 Shri Aakash Minocha has testified about the manner in which the incident had occurred. He has testified that on 10.2.2008, around 7.45
- 8.00 p.m., he was present near Ram Mandir, Pocket1, Mayur Vihar, Phase1. That he was talking with his friend on his father's mobile phone. That suddenly he felt something on his neck from behind and when he turned, he saw that one person had put knife on his neck. That he immediately found himself surrounded by 3 / 4 other persons. That one of them took out his mobile phone NOKIA 6300 from his pocket. That another person took out his purse containing Rs.700/ 800/, debit card, driving licence, credit card and identity card and directed him to keep quite and to move silently. That when he started moving, then he was directed to go in other direction and was threatened not to raise alarm failing which he would be stabbed. That thereafter he was assaulted with the butt of that knife which was in the hand of accused who had put knife on his neck. That on sensing the presence of police, he raised alarm and he with the help of two police officials, who were on the bike, overpowered one of the boy while others managed to escape. That his gold chain was 6 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar recovered from the possession of accused. That knife was also recovered from accused. That later on the name of accused was revealed as Riyaz. He further testified that accused Riyaz, present before the court, is the same person who had put the knife upon him. That his statement was recorded by the police which is Ex.PW3/A. That sketch of the knife Ex.PW2/A was prepared which was seized vide seizure memo Ex.PW2/B. He further testified that his gold chain was also seized by the police vide seizure memo Ex.PW2/C. He further testified that accused Riyaz was arrested in his presence vide arrest memo Ex.PW2/D and his personal search was conducted vide memo Ex.PW2/E. That he received his chain on superdari vide superdginama Ex.PW3/B.
10. Statement of accused was recorded u/s 313 Cr.P.C. without oath in order to give an opportunity to the accused to explain the circumstances appearing in evidence against him. Accused has denied the case of the prosecution in its entirety and has submitted that he has been falsely implicated in this case.
11. Arguments were heard at the bar. Ld defence Cl. Sh. FA Khan has vehemently argued that prosecution has failed to establish its case. That there are irreconcilable contradictions in the testimonies of PWs. That PW 7 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar Sh. Aakash Minocha in his report Ex.PW3/A has stated that he was talking to his father whereas in the statement before this court he has testified that he was talking with his friend and versions have become irreconcilable. That PW Sh. Akash Minocha has testified that two police officials were on the bike whereas police officials have stated that they were on foot. That in the complaint Ex.PW3/A Sh. Akash Minocha does not make a mention about the police officials being on motorcycle. That PW3 has testified in his cross examination that he had gone separately to the police station with his father which is not the case of the prosecution and PW2 and PW4 have not testified to this effect. That version of PW3 in cross examination at page 6 to the effect that police officials had snatched the knife from the accused at the spot and his gold chain was recovered from the accused in the police station strikes at the root of the case of the prosecution. That reaffirmation by PW3 to the effect that his gold chain was recovered from the possession of the accused in the police station in a room at ground floor makes the case of the prosecution completely doubtful. That further admissions of PW3 in the last para of cross examination dated 15.7.09 to the effect that there were 56 police officials in the PS and one of the constable had taken out the chain from 8 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar the possession of accused Riyaz dashes the case of the prosecution to the ground. Ld counsel has also argued that MHCM has not been examined by the prosecution due to which link in the chain of circumstantial evidence stands broken. That ownership of chain has not been proved and at the maximum an offence u/s 103 Delhi Police Act can be said to be made out against the accused. That PWs have given inconsistent versions concerning recovery of knife and gold chain. Ld counsel has submitted that PW4 has testified that gold chain was found in the pocket of kurta worn by the accused which was identified by the complainant Aakash Minocha and knife was recovered from the right dub of the pant of the accused whereas Ct. Pawan Kumar has testified that chain was recovered at the spot and he had noticed that it was in the hand of SI Girdhari Lal. He has also argued that version of PW2 in his cross is to the effect that knife was recovered from the right hand of the accused. It has been argued that PW2 testified that signatures of the complainant were not obtained on the seizure memo whereas seizure memos find signatures of complainant Akash Minocha. He has also argued that he, accused Riyaz and IO alone had singed the seizure memos. Ld counsel has argued that this is not inconsonance with the records of the case in 9 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar which signature of PW Akash Minocha are there. Ld counsel has further argued that non joining of public witnesses is fatal to the case of the prosecution. He has also argued that conduct of the IO is unnatural as is evident from the answers given in cross examination wherein IO stated that he had not incorporated the fact of escaping of other accused persons in case diary. Ld counsel has also assailed the case of the prosecution on the ground that PW4 has testified in contradiction with the version of other witnesses by testifying in cross examination that complainant was set free from the investigation at the spot which is in teeth with the version of PW Akash who has testified that he had gone to the police station on the same night along with his father. PW4 on the other hand testified that complainant had contacted him in the police station for the purpose of superdari and not otherwise. Ld defece counsel has also assailed the case of the prosecution on the ground that accused was taken to the spot again around 11.00 or 11.30 pm which version is again in teeth with the version of other witnesses. Ld counsel Sh. F.A Khan submitted that investigation is very faulty and accused has become entitled to benefit of doubt.
10 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar
12. Ld PP on the other hand has vehemently argued that prosecution has established its case against the accused by way of testimony of PW3 Sh. Akash Minocha. He has submitted vehemently that cross examination of PW1 goes to show the present day real scenario. That from cross examination it is evident that Sh. Akash Minocha was under extreme pressure. Ld PP submitted that in such cases it becomes the duty of the court to lean in favour of the prosecution as otherwise criminals will be in a position to threaten the witnesses and administration of justice will be put to havoc. Ld PP has submitted that accused is involved in many other cases and is a dangerous person. He submitted that from the contradictions, the case of the prosecution u/s 27 of the Arms Act, 397 IPC and 411 IPC can be said to have been effected at the maximum and that too to very minor extent. He has submitted that ingredients of section 392 IPC have been categorically proved by the prosecution in this case to their hilt.
13. I have carefully perused the records of the case and considered the submissions.
14. Before proceeding further I deem it expedient to refer to some legal precedents which will help in determination of the points in controversy of 11 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar the case.
15. Hon'ble Supreme court in B.K. Channappa Vs State of Karnataka reported in AR 2007 SC 432 has held that if the witnesses are examined after a considerable gap from the date of incident and are subjected to searching lengthy cross examination, then some discrepancies are bound to occur in their testimonies. That duty of the court is to see as to whether the contradictions are very serious, vital and significant so as to disbelieve and discard substratum of the prosecution case. If the testimony matches with the case put forth by the prosecution on a broader probability then the case of the prosecution has to be believed. In this case witnesses were examined after a period of five years.
16. In Vikram Vs State of Maharastra reported in AIR 2007 SC 1893 similar view was taken when the witnesses were examined after a period of two and a half years of the incident.
17. In AIR 2007 SC 2257, it has been held that conviction can be had on the testimony of a single witness and improvements made by the witness as to irrelevant details are not to be labeled as omission and contradictions. It was also held that unnatural conduct of accused will strengthen the case of the prosecution if no explanation about unnatural 12 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar conduct is given. (In this case prosecution had alleged that accused had killed his wife. Case of the accused was that he had come to the house after the incident. Non lodging of the FIR on the part of the accused in absence of any explanation in this regard was held to be circumstance strengthening the case of the prosecution).
18. In AIR 2007 SC 3106 titled as Girja Prasad Vs State of MP it has been held that police witnesses are not to be disbelieved simply for the reason that they are police officials. Presumption of honest behavior applies equally to police officials and credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness.
19. In Kulesh Mandal Vs State of West Bengal reported in AIR 2007 SC 3228 it has been held that material discrepancies are those discrepancies which are not expected of normal person. Normal discrepancies do not corrode creditability of a parties case. In this very case it was held that testimonies of relatives / interested witnesses are not to be discarded simply for the reason that it was the testimony of a witness or closed relative. AIR 1953 SC 364 (Dalip Singh & Ors Vs State of Punjab) was relied and observations of famous Judge Justice Vivian Bose were quoted. AIR 1965 SC 202 (Masalti & Ors. Vs State of UP) was relied upon 13 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar and it was held that testimonies of partisan / related / interested witnesses are to be perused with extra care and caution and if found credit worthy, can be made basis of conviction. State of Punjab Vs Jagir Singh AIR 1973 SC 2407 was relied with AIR 1981 SC 1390 wherein it was observed that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized.
20. In Krishan Mochi & Ors. Vs State of Bihar reported in 2002 AIR SCW 1909 the above mentioned position was explained further. Method of appreciation of testimonies of oral and medical nature in juxta position was explained and it was held that if oral evidence is trustworthy then medical evidence being opinionative in nature shall go on a lower pedestal then the oral testification.
21. Hon'ble Supreme Court has explained about the maxim 'falsus in uno, falsus in omnimus' in many cases in general and for the sake of referring I 14 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar am referring Nishar Ali Vs State of Utter Pradesh. In this case it was held that this maxim has not received general acceptance in India and is not a mandatory rule of evidence. It was also observed that merely because co accused is acquitted, this fact is not such a fact which will entitle the other accused for acquittal. It has been held that in India application of this maxim can be a dangerous one as, if applied, it may lead to a dead stop for administration of criminal justice. It was observed that the witnesses just cannot help in giving embroidery to a story, however, true in the main. It was further observed that the aforesaid maxim is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment (Shehrab & Ors Vs State of MP (1972) 3 SCC 751). It was further observed by relying Umarahir & Ors Vs State of Bihar, AIR 1965 SC 277 that an attempt has to be made to in terms of felicitous metaphor, to separate grain from the chaff. When it is not possible to separate the grain from the chaff, grain and chaff being inextricably mixed up and in the process of separation an absolutely new case coming up then only evidence has to be rejected intoto. AIR 1954 SC 15, AIR 1975 SC 1962, AIR 1981 SC 1390 were relied and it was observed that normal 15 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar discrepancies due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence are bound to occur as these will always be there. However, honest and truthful a witness may be.
22. In Vadivelu Thevar Vs State of Madras, AIR 1957 SC 614, Hon'ble Supreme Court observed as follows: "Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories namely : (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in 16 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. . . . . . . . . . . ."
23. In Narain Vs State of MP, 2004 (2) SCC 455; 2004 AIR SCW 1226 it was held as follows: "Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some may remain tightlipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances.
17 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."
24. In B.P.N. Reddy & Ors Vs State of Andhra Pradesh, 1991 (3) SCC 434 reference to cross examination of Pws was made and it was held that witness is required to give the details of occurrence in a normal manner and substratum of the testimony is to be seen and court has to separate the grain from the chaff. It was further held that where chaff can be separated from the grain it would be open to the court to convict an accused notwithstanding the fact evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end.
25. With respect to contradictions and improvements Hon'ble Supreme Court has observed in many judgments in general and in AIR 1982 SC 839, in particular that contradictions and improvements are to be seen from a broader point of view and contradiction and improvements which are not related to the facts in issue are to be ignored. It was also observed that witness is to be contradicted only by his statement and not with the statement of other witness.
18 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar
26. In 2001 Crl. L. J 515 the words 'may presume' and 'shall presume' were adverted to and a discussion about presumptions was made. It was held that presumptions falling under the category of 'may presume' are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under 'shall presume' are known as legal presumptions or compulsory presumptions. Legal presumptions are of commanding nature and have to be drawn. 'Discretionary presumptions' may be drawn on the basis of facts proved by the parties.
27. With respect to 'proof' legal position was beautifully explained by fletcher molten, L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) and it was observed as follows :
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion."
The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact 19 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business visavis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.
28. It was further observed that presumptions can be drawn from facts with the rider that presumption from presumption cannot be drawn until and unless some statutory compulsion is there.
29. Section 114 of the Evidence Act was discussed in Raghubir Singh Vs State of Punjab and possession of marked currency notes was held as 'res ipsa loquitor' of drawing of presumption with respect to gratification.
20 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar
30. With respect to doctrine of benefit of doubt, Hon'ble Supreme Court has observed in recent judgments that exaggerated devotion to this rule should not be had. In AIR 1990 SC 209 it has been held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty people escape than punish an innocent. Letting guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused. 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 inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in meticulous hyper sensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.
31. In Inder Singh Vs State AIR 1978 SC 109 it has been held that vague hunches cannot take place of judicial evaluation. 'A judge does not 21 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar 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. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth.
32. In Shivaji Sahebrao Bobade v. State ofMaharashtra, (1974 (1) SCR 489 (492493)) : AIR 1973 SC 2762 : 1973 Cri LJ 1783 : it has been observed that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. . . . . . . ."
". . . . . . . . .The evil of acquitting a guilty person lightheartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittal become general, they tend to lead to a 22 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltness. . . . . . . . . ."
". . . . . . . .a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent . . . . . . . . ."
33. In Krishan Gopal Case a beautiful discussion about appreciation of evidence has been given and I am tempted to quote the same at the cost of circumlocution.
"It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses,as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' 23 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof is an exercise particular to each case. Referring to of probability amounts to 'proof' is an exercise the interdependence of evidence and the confirmation of one piece of evidence by another.:(See "The Mathematics of Proof II" : Glanville Williams: Criminal Law Review, 1979 by Sweet and Maxwell, pp. 340 (342)). "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the 24 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other." Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the 25 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice."
34. Position with respect to 313 Cr PC is to the effect that if prosecution brings on record evidence which throws the onus on the accused and the accused fails to rebut the evidence brought on record by the prosecution, then this factor can be used as an additional circumstance to lend credence to the case of the prosecution. No doubt accused is presumed to be innocent till proved guilty but this doctrine has certain limitations and duty is cast upon the accused to explain the circumstances which were in his exclusive knowledge. If the accused fails to give a proper explanation then court has to draw an adverse inference against the accused. Some of the legal precedents in this regard are being given.
35. In A. Abdul Kafir Vs. State of Karela, reported in 2004(9) SCC 333 and T. Shankar Prasad Vs. State of A. P 2004(3) SCC 753, it has been mandated that court should be wary of belated explanations under section 313 Cr.P.C.
36. In Raj Kumar Prasad Tamkar Vs. Stated of Bihar, reported in AIR 2007 SCW 295, it has been held that in the absence of sufficient and cogent explanation in the answers to the questions under section 313 26 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar Cr.P.C, the court would be entitled to consider the same as a circumstance against the accused.
37. With respect to section 313 Cr PC legal position stands well settled by the Hon'ble Supreme court. The crux of the legal position is to the effect that accused cannot be convicted on the basis of the admissions of the accused in his statement U/s 313 Cr PC alone. However, the effect of the answers given by the accused has to be considered in light of the other evidences brought on record by the prosecution. If the accused gives false answer to a question in a statement u/s 313 Cr PC and prosecution has led plausible evidence against the accused connecting him to the commission of offence reasonably, then the false answer can be taken to be as a link in the chain of circumstantial evidence and can help in establishing the completion of the chain. In Bobby Mahadev Vs State of Karnataka reported in 2004 Cr LJ 3003, this position was explained in para 19 and 26. Cases titled as State of Karnataka Vs K Yaduppa Reddy were extracted. 2005 Cr LJ 4604, 1998 Cr.LJ 1411, 2002 AIR SCW 4204, 1998 AIR SCW 778, 1997 AIR SCW 587 and 2007 Cr.L.J 1145 are the relevant judgments if one has to go in detail with respect to legal position u/s 313 Cr PC. It is well settled that section 313 Cr. PC is a departure 27 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar from English law. Under English Law no assistance can be taken from the answers of the accused. The position is not so in India and has been diluted by virtue of section 313 Cr PC which is as follows:
Power to examine the accused. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court
(a) may at any stage,without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally about the case;
Provided that in a summonscase where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under subsection (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
Thus section 313 (4) Cr.P.C authorizes the court to draw 28 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar presumptions in favour of or against the accused and law of presumptions has been brought in operation. I am not burdening this para anymore with the precedents for the reason that 313 (4) categorically provides that answers given by the accused can be taken into consideration by the trial court either in favour of the accused or against him.
38. There is no hitch in giving a finding that offence u/s 392 IPC is made out against the accused. Offence u/s 392 IPC is made out once aggravated form of theft or extortion comes on record. From the testimony of PW3 Sh. Akash Minocha ingredients of the offence u/s 392 IPC stand categorically brought on record.
39. PW3 Sh. Akash Minocha has testified in his examination in chief that on 10.2.08 at about 7.458.00 pm he was present at Ram Mandir pocket 1, Mayur vihar PhaseI and was talking with his friend on his father's mobile. That all of a sudden he felt something on his neck from behind and found himself surrounded by 34 persons. He also testified that one of the culprits had put the knife on his neck. That one of the culprits took out his mobile phone from his pocket. That another person took out his purse containing Rs. 700/800, debit card, Driving license, credit card, Identity card etc and he was directed to keep quite. That one of the accused 29 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar snatched his gold chain from his neck. Other portion of the testimony being most relevant is being extracted herein below: "Thereafter I was assaulted with the butt of that knife which was in the hands of the accused person who had put knife on my neck. I started going and then sensed presence of police. I raised alarm. There were two police officials on the bike. They managed to overpower one person on the spot with my help. Some public person had also reached the spot. My gold chain was recovered from the possession of that person. From that person who had put knife on my neck, knife was also recovered from his possession. His name was revealed as Riyaz. Accused present before the court is the same person who put knife upon me. My statement was recorded by police. I had signed the same which is Ex.PW3/A "
40. Above extracted portion categorically proves the aggravated form of theft and extortion and I have no hesitation in concluding to the effect that accused committed aggravated theft / extortion by snatching the chain. There is also no hitch to observe that associates of the accused persons also committed the offence who are still at large.
41. In cross examination this witness has not been shaken as far as the
30 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar offence u/s 392 IPC is concerned. Contradictions pointed out by Ld defence counsel during the course of arguments do not affect the case of the prosecution as far as offence u/s 392 IPC is concerned. PW3 Sh. Akash Minocha has categorically remained firm on his version that he was robbed by the accused and his associates. It is a different matter that irrelevant questions were asked during cross examination which were disallowed. This witness got irritated and demeanour of this witness was recorded by me. One of the question was about the name of the friends with whom this PW had talked. This question was not germane to the facts in issue and hence the same was disallowed. This witness denied the suggestion that he had not talked with his friend and his friends were not having any mobile. This witness testified that his friend was in Pune. This witness was given a suggestion that he was not having any friend in Pune which was denied. This witness gave the number of the mobile from which he was talking. Accused has not come with the defence that no call was made on the date of incident to Pune from the mobile of father of complainant as otherwise accused would have mustered courage to summon the call history of mobile of father of PW3. Thereafter the witness was asked the residential telephone number. It was objected to on 31 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar the ground that the witness was facing threat. The witness was asked about the threat and he disclosed as follows: "Some friends and relatives of accused had approached me at my residence on the following day of incident and had offered to return the entire robbed articles and they further threatened that something more may happen in future and since then I am under fear. I had not lodged any report in this regard".
42. The above mentioned fear in the mind of the witness has to be taken into consideration while appreciating the testimony of this witness. This witness was asked the reason for not lodging of the report and this witness gave a frank and fair reply in the following words:
"My younger brother is a student and is doing his graduation. I am a student of MBA. I have threat from the persons like the accused one and due to fear I had not lodged the report before the police."
43. Thereafter the witness was again asked questions which would have put the security of the witness in danger and the same were disallowed.
44. At page third of cross examination the witness was asked about the situation of place of occurrence, giving of IMEI number etc and the witness has given cogent answer to the same. At next page also this 32 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar witness has testified inconsonance with the case of the prosecution with respect to material ingredients of section 392 IPC.
45. This witness at one stage became agitated to the extent that in case the questions which the defence was asking in the presence of the culprit, then his case may be closed. This is the reason that I have relied upon AIR 1990 SC 209 & 1973 Cr.L.J 1783 and have used my trained intuition in order to avoid legitimization of trivialities to save the administration of justice from becoming a mockery. The heart felt fear of the witness cannot be lost sight of who was not prepared to disclose and rightly so his personal details. Time is ripe for the legislature to seriously ponder over the question of witness protection including post decision stage security.
46. PW3 testified that he had gone separately to the police station with his father whereas accused was taken to police station separately. This is also the version of PW2 Ct. Pawan Kumar during cross examination. This is a factor which vouches against false implication. Thereafter the cross pertains to post event facts. Sufficient to say that PW3 has not been shaken at all as far as commission of offence u/s 392 IPC by the accused is concerned and I have no hesitation in giving a verdict of accused being guilty for the offence u/s 392 IPC.
33 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar
47. As far as irregularities and discrepancies in the case of the prosecution, as argued by Ld defence counsel Sh. F.A Khan are concerned. I am inclined to give the benefit of doubt to the accused concerning the offence u/s 394/397 IPC. I am also awarding the benefit of doubt to the accused u/s 25/27 of the Arms Act. Be that as it may accused cannot be given any benefit with respect to section 392 IPC.
48. PW2 and PW4 are the witnesses concerning the offence u/s 25/27 of the Arms Act and for the offences u/s 394/397 IPC. As far as offence u/s 392 IPC is concerned sole testimony of PW3 is sufficient to record the conviction and for that reason I have done so. Conviction under section 392 IPC can be had even if the recovery of chain would not have taken place as PW3 has categorically testified that accused was one of the active participants of crime.
49. Argument that PW3 has given contradictory versions in Ex.PW3/A and statement concerning the person with whom he was talking is of no help as the same is not a material contradiction effecting the case of prosecution in any manner whatsoever. In view of the detailed explanation of PW3 Akash Minocha concerning his conversation with his friend at Pune, I have no hesitation to observe that IO recorded incorrectly that 34 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar witness was talking with his father from his mobile phone instead of recording that witness was talking with his friend from the mobile phone of his father. This argument would have been of some help to the accused had PW4 been asked about this aspect. As PW4 was not asked about this aspect, the argument is disallowed. Even otherwise, at the most it can be said to be an embroidery / embellishment not effecting the case of the prosecution. The argument that police officials were on bike as per PW3 Sh. Akash Minocha whereas as per police officials they were on foot, is of no help as the same again is not a material contradiction. PW3 was not asked that PW2 had testified that they were on foot. Similarly PW2 and PW4 were not asked that they were on motorcycle. In the circumstances the discrepancy is held as inconsequential. I have no hesitation to observe that it was not material as to whether the police officials were on foot or on motorcycle but the material aspect was the apprehension of the accused. Police officials as well as PW3 have not faulted on the apprehension aspect.
50. The argument that versions of the witnesses are at variance concerning going to the police station by the complainant is of no help as the same at the most would have proved the post event facts about which 35 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar corroboration was required. Corroboration was required w.r.t. recovery of knife being beyond doubt for the reason that use of deadly weapon was required to be proved u/s 397 IPC. Since PW3 has not given the details about the knife, proper conclusion about its dangerous nature cannot be drawn. Corroboration was required under section 394 IPC as 'hurt' was required to be proved. Since the complainant was not medically examined police officials should have deposed about the 'hurt' being sustained by the victim. These observations are being made to make a balance between the aspect of non eroding of the protection granted by the criminal process to the accused. While giving my observations under section 392 IPC I have used my trained intuition and have kept in mind the interest of the society at large in view of the comparative less severity of the offence whereas I have kept the interest of the accused in mind due to severity of the offences u/s 394 and 397 IPC. Accused is being awarded benefit of doubt u/s 25/27 of the Arms Act also for the discrepancies which concern post event facts.
51. The argument that versions of witnesses are at variance concerning the recovery of gold chain from the pocket of kurta, from the hand etc is of no help as from the same the material aspect of aggravating theft/ 36 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar extortion does not get affected. Similarly argument concerning the versions of witnesses being at variance concerning leading by the accused to Trilok Puri is of no help qua section 392 IPC as I have given the benefit of doubt qua section 394/397 and 25/27 of the Arms Act only for these post event irregularities. The argument concerning versions of the witnesses being at variance about the place of recovery of gold chain is also not tenable qua section 392 IPC. PW3 during his cross examination stated that his gold chain was recovered from the accused in PS in a room at ground floor in the presence of 56 police officials and the chain was taken from the possession of accused Riyaz. Case of the prosecution on the other hand is that chain was recovered at the spot itself. No doubt this discrepancy is there but the question arises as to whether the accused should be given the benefit of this discrepancy with respect to section 392 IPC also. In my considered view it should not be so simply for the reason that version of PW3 Sh. Akash Minocha concerning robbery has gone unimpeached and uncontroverted. During examination in chief this witness had categorically testified that chain was recovered from the accused at the spot itself and this version is the true version for the reason that this version is corroborated by other PWs and version of 37 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar PW3 finds full support from the version of PW2 and PW4 as far as material ingredients of the offence under section 392 IPC are concerned. During cross examination PW3 reiterated that his chain by robbed by accused Riyaz. The version of PW3 about recovery of chain in P.S. in my considered view is out of the desire of the witness to get rid of irritating and personal security threatening cross examination.
52. The argument concerning versions of PWs being at variance concerning signing of the memos is of no help as nothing material turns out of the same. Similarly the argument that non joining of public witnesses is fatal to the case of the prosecution is of no help as far as offence u/s 392 IPC is concerned. I have given the benefit of doubt to the accused for the offences u/s 25 and 27 of the Arms Act and 394/397 of the IPC. The most important aspect which has weighed with me in this regard is the cross examination of PW4 SI Girdhari Lal who has testified that he does not want to see the case diaries in order to ascertain about leading by the accused to block no. 20, Trilokpuri. Benefit of doubt is also being given for the reason that case diaries do not admittedly contain the details about the search of coaccused. Remaining arguments of Ld. Defence Counsel are not tenable as I have found that testimony of PW3 38 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar on its close scrutiny stands true on the touchstone of cross examination and bears the ring of truth.
53. Net result of the above going discussion is that accused is held guilty u/s 392 IPC and is convicted for the offence punishable u/s 392 IPC.
Announced in open court (Dilbag Singh)
Dated: 25.01.2010 Addl. Sessions Judge01(E):
Karkardooma Courts, Delhi.
39 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar
IN THE COURT OF SHRI DILBAG SINGH: ADDL. SESSIONS JUDGE 01(E): KARKARDOOMA COURTS: DELHI.
Sessions Case No.04/09
State v/s Riyaz S/o Abdul Wahab
R/o H.No.20/372, Trilok Puri, Delhi.
FIR NO.38/08
PS Mayur Vihar
U/s 392 IPC
Order on Sentence
1. I have heard Ld. Counsel Sh. F. Khan for convict Riyaz on the point of sentence.
Ld. PP has also been heard.
2. Ld counsel for convict stated that convict is young aged person and sole bread earner of the family. That convict is unmarried and having a large family to support consisting of his old aged mother, three brothers and three unmarried sisters. That convict was doing the work of denting and painting and was earning Rs.3000/ per month. That convict is a very poor fellow. That convict has remained in JC for more than three months. Ld. counsel requested for leniency to the convict.
3. On the other hand, Ld. Public Prosecutor has submitted that offence committed by the convict is quite serious in nature and no leniency should be shown in the matter.
4. I have carefully perused the record of the case and considered the submissions.
Before adverting to sentencing aspect, I deem it expedient to advert to legal situation first.
5. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. Hon'ble Supreme Court in 2008 (VII) SCC 17, has provided 40 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar apposite guidelines in this regard. In this judgement reliance has been placed on Dhananjoy Chatterjee Alias Dhanna Vs. State of W.B., reported in 1994 (2) SCC
220. Reliance has also been placed on Shailesh Jasvantbhai and Another Vs. State of Gujarat and Others, reported in 2006 (2) SCC 359.
6. I am not burdening this order with the ratio decidendi of these cases and the same may be read as part of this para. Hon'ble Supreme Court has reiterated the principles of sentencing in 2008 VIII AD (S.C.) 581 titled as State of Madhya Pradesh Vs. Pappu @ Ajay and has referred State of Madhya Pradesh vs Ghanshyam Singh 2003 (8) SCC 13 and State of Barkare @ Dalap Singh 2005 (5) SCC 413. Reliance has also been placed on Dennis Councle MCGDautha v/s State of Callifornia, 402 US 183: 28 L.D.2d 711 and Sevaka Perumal etc. vs State of Tamil Nadu, AIR 1991 SC 1463.
7. I am not referring to the mandates of the above mentioned judgments as well for the sake of brevity and the same may be read as part of this para. Suffice to say that crux of all the judgments mentioned above is that sentencing court has to make a delicate balance between the conflicting interests of the society and victim on the one hand and that of the convict on the other hand. No doubt, the balancing cannot be done in golden scales but an effort has to be made in this direction.
8. In view of the above mentioned legal exposition, let the case of the present case be confronted with. Convict along with his associates on 10.2.2008, around 8 PM., looted a person on a public place i.e. Mayur vihar phase I, Pocket1 near Ram Mandir. Offence u/s 392 IPC stands proved against the convict. This is an aggravating circumstance against the convict as incidents of this nature are increasing day by day and require deterrent punishment so that present case can serve as a precedent to deter such like convict of the present case. Convict devised an innovative method to trap an unaware complainant and manner of commission of offence requires deterrent punishment. Increase of such like incidents in the metropolitan city of Delhi also inclines me to treat the same as an 41 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar aggravating circumstance. On the other hand submissions made by the convict and his counsel Sh. F.A Khan are mitigating circumstances. Young age of the convict inclines me to show some sympaty so that convict can transform himself into a useful citizen. Making a balance between the two convict is sentenced as follows.
9. Convict is sentenced to undergo RI for a period of four years u/s 392 IPC and to pay a fine of Rs.5000/. In default of payment of fine, convict shall further undergo RI for two months .
10. Benefit of set off under section 428 Cr.P.C be given to the convict. A copy of judgement and order on sentence be supplied to the convict free of cost. File be consigned to record room.
Announced in open court (Dilbag Singh)
Dated: 01.02.2010 Addl. Sessions Judge01(E):
Karkardooma Courts, Delhi.
42 State Vs Riyaz, FIR no.38/08, PS Mayur Vihar