Delhi District Court
State vs 1. Shakeel on 2 March, 2020
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM: ADDL. SESSIONS JUDGE-03:
EAST DISTRICT: KARKARDOOMA COURTS: DELHI.
Sessions Case No.: 1332/2016
(Old RBT dated 10.01.2011)
State Versus 1. Shakeel
S/o Sh. Shabbir Ahmed
R/o H. No. C-48, Parwana Road,
New Govindpura, Delhi.
2. Suresh Kumar
S/o Sh. Diwan Chand
R/o H. No. C-44,
Radhey Shyam Park, Preet Vihar,
Delhi.
3. Hassan
S/o Sh. Chaman Khan
R/o Village PS Sabbar
Distt. Eta UP
At present
Jhuggi Moorbano,
Bhikam Singh Colony, Delhi.
4. Parmod @ Pappy
S/o Sh. Neta Ram
(Expired)
FIR No. : 369/2007
Under Section : 394/395/323/412/34 IPC
Police Station : Preet Vihar
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Chargesheet Filed On : 28.05.2010
Chargesheet Allocated On : 10.01.2011
Chargesheet Received
By this Court : 22.01.2014
Undersigned Presided over
the Court : 06.11.2017
Judgment Reserved On : 27.02.2020
Judgment Announced On : 02.03.2020
JUDGMENT
1. Necessary facts, succinctly, as per the report under Sec. 173 CrPC are that one Manish Bajaj, lodged his report with the police inter alia alleging therein that on 25.05.2007 at about 9.20 p.m. while he along with his friends namely Harminder Singh, Anu Tyagi, Nitin Yadav and Sumit was present near Scope Minar near the park as he has thrown the party to celebrate the result of his 12 th class and were having beer bottles, six boys came near to them and all of them surrounded them and out of them two - who were body builder, robbed mobile phone of Harminder on which he was talking at that time and all of them (complainant side) were directed to keep quite otherwise would be killed, with further directions to hand over the articles, whatever with them. It is also alleged that a purse was also taken out from the pocket of his (complainant) pants with cash amount of Rs. 1,500/-; gold chain worn by him at that time and also robbed his SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 2 of 22 mobile phone. When the complainant objected to the same, one of the assailants after snatching beer bottle from his (complainant) hand, attacked on his (complainant) head. It is also alleged that Nitin Yadav was also robbed for his purse containing cash amount of Rs. 800/- and an ATM & D/L and Annu Tyagi was also robbed for his purse containing cash of Rs. 3,000/-, ATM and mobile phone Make Reliance and all the assailants then left the said place on a motorcycle bearing registration no. DL-7SX- 4356 after extending threat not to raise alarm. Complainant further alleged that earlier he did not disclose these facts to his family as he had consumed beer but later on he disclosed the facts to the members of his family.
2. On the basis of the said complaint, present case bearing FIR No. 369/2007 PS Preet Vihar was registered. During the course of the investigations, after verifying the name of registered owner of the abovementioned motorcycle, accused Shakeel was arrested and said motorcycle was also seized. Said accused Shakeel also disclosed the names of his associates and even recovery of some of the cash amount was also effected. Even from the possession of the accused Shakeel, photocopy of the driving licence of Manish Bajaj was also recovered. Despite best efforts some of the co-accused persons could not be arrested SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 3 of 22 and it is also mentioned that one of the co-accused Pramod @ Pappe expired. On conclusion of the investigations, chargesheet was filed against the four accused persons namely Shakeel, Suresh Kumar, Hassasn and Pramod @ Pappy (now expired) before the court of learned Metropolitan Magistrate to face trial for the offences punishable under Sec. 323/394/395/412/34 IPC.
3. After compliance of provisions of Sec. 207 CrPC by the court of ld. MM, case was committed to the Court of Sessions as some of the Sections involved in the present matter are exclusively triable by it.
4. Vide order dated 21.03.2011 passed by ld. predecessor, charge under Section 395 IPC; 394/34 IPC and 323/34 IPC was framed against the accused persons. Vide said order, separate charges under Sec. 412 IPC were also framed against accused persons Shakeel; Suresh Kumar and Hassan. To the said charges, al these accused persons pleaded not guilty and claimed trial.
5. In order to bring home the guilt against the accused, prosecution took help of thirteen witnesses and out of them PW-2 Manish Bajaj/the complainant - one of the victims; PW-7 Harminder Singh; PW-8 Nitin Kumar; PW-9 Sumit Negi are material public witnesses of the crime while remaining witnesses either joined the investigations of the case or SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 4 of 22 remained associated in the investigations of this case.
During the prosecution evidence, accused persons vide their statement recorded under Sec. 294 CrPC admitted the opinion regarding nature of injuries as Ex.C1; proceedings qua superdari as Ex.C2 and DD No. 13-B and 19-B as Ex.C3 & C4 respectively.
6. All the incriminating evidence which has come on record has been put to the accused persons under Section 313 CrPC. All these accused persons denied all the incriminating evidence put to them further pleaded that they have been implicated falsely in this case after lifting them from their houses/workplace. All of them further pleaded that no recovery was effected from any one of them. None of them claimed over case property nor opted to lead Defence Evidence.
7. Ld. Addl. P.P. for the State argued that the prosecution has proved its case beyond all reasonable doubt by examining the prosecution witnesses who in clear and unequivocal terms stated that accused persons are responsible for the crime committed in the present matter. Ld. Addl. PP for the State further contended that no reason has brought on record for false implication of any of these accused persons at the hands of the victims and even police officials, particularly, when no ill-will, grudge or enmity has either been alleged or proved against any one of them. Ld. SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 5 of 22 Addl. PP further contended that recovery effected from the possession and at the instance of the accused persons further strengthen the prosecution case. It is also contended that rather victim(s) would be the most interested person(s) to see the actual culprit(s) behind bars.
8. Apart from that, one of the contentions of the ld. Addl. PP for the State is that none of these accused persons took any stand nor furnished any proof or any documentary proof to show that if they were not present at the spot on the date and time of incident, where they were present at that time. Next contention of the ld Addl.PP is that even nothing has come on record against any of the police officials for false implication of these accused persons as case went unfold through registration number of the vehicle and thus, the testimony of the police officials is to be considered as trustworthy. Ld. Addl. PP also drew the attention of the court towards the fact that accused persons refused to join the test identification parade proceedings and this also goes adverse against the accused persons. Ld. Addl. PP prayed for conviction to these accused persons, for the offences for which they have been been charged with.
9. Per contra, ld. defence counsels contended that prosecution case is built on sand as testimony of the prosecution witnesses is full of contradictions and improvements. Next contention of the ld. defence SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 6 of 22 counsels is that complainant including any other alleged victims of the present matter failed to inform the police at opportunity available to them immediately after the incident and delay in lodging the present FIR is itself a major dent on the prosecution story. Next contention of the ld. defence counsels is that non recovery of beer bottle also created a doubt on the prosecution story. Further contention of the ld. counsels that at the time of the alleged recovery, non joining of public persons also creates a serious doubt on the prosecution case and for all this, accused persons are entitled for acquittal as prosecution has failed to prove its case against any of these accused persons beyond all reasonable doubts. Ld. defence counsel for accused Hassan placed reliance on the case reported as Riaz Ali Vs. State, Crl.A. No. 909/2010 decided on 22.02.2012 by Hon'ble High Court of Delhi in support of his contentions.
10. Having carefully gone through the entire material on record and have considered the rival submissions of the parties in the light of the law laid down on the issue in question after due care.
11. In the present matter, case has two pranks - one for incident committed upon the victim(s) and another for recovery point.
12. Firstly, court will deal with the offences punishable under Sections 395 IPC; 394/34 and 323/34 IPC for which all of these accused SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 7 of 22 persons have been charged with. To prove these offences, prosecution took help of PW-2 Manish Bajaj; PW-7 Harminder Singh; PW-8 Nitin Kumar Yadav and PW-9 Sumit Negi - all public witnesses.
13. PW-2 Manish Bajaj during his examination-in-chief conducted on 01.12.2011 in clear words stated as - "Out of the said culprits three accused persons are present in the court xxx but all the accused present in the court robbed us jointly.xxx"
14. Apart from this witness, remaining material witnesses for the incident are PW-7 Harminder Singh; PW-8 Nitin Kumar Yadav and PW-9 Sumit Negi who are also deposing on the same lines qua the incident committed upon them and injuries sustained by PW-2 Manish Bajaj at the hands of one of the assailants on account of beer bottle attack.
15. Out of these material witnesses, PW-7 Harminder Singh also identified the accused persons present in the court who committed the crime upon him and his friends. PW-8 Nitin also deposed about the incident but stating as - witness identified accused Suresh and Hassan as the two assailants out of six robbers. Witness states that he is not sure that the third accused present in the court today was among the assailants or not." This witness was cross-examined on behalf of the State and even during cross-examination conducted on this witness, he deposed as - SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 8 of 22 "After seeing accused Shakeel, witness states that he is not sure that he is one of the assailants." No suggestion was put to this witness on behalf of this accused that this accused never participated in the crime. PW-9 Sumit Negi in clear terms exonerated accused Shakeel despite cross- examination conducted on behalf of State.
16. Though, Shakeel has not been identified by PW-9 Sumit in clear terms and with certainty by PW-8 Nitin, but there is testimony of PW- 2 Manish Bajaj and PW-7 Harminder Singh who in clear and unequivocal terms stated that all three accused persons including with other persons numbering in six committed the crime upon them. No reason has been put forward for false implication of any of these accused persons at the hands of these public witnesses, who were totally stranger to them. No ill-will, grudge or enmity has either been proved or alleged against any one of them. Incident was committed on the day when the result of 12 th class was declared in the year 2007 and for the same, PW-2 Manish threw party to his friends. This case went unfolded only with the help of registration number of one of the motorcycles on which accused persons fled away from the spot. None of the accused claimed that he was present at any other place on the day and time of incident. Mere simple denial of any fact has no value in the eyes of law.
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17. Qua delay in lodging the FIR, it is clear that complainant stated that earlier he remained under trauma as he was hit with beer bottle on his head while throwing the party to his friends. Incident is of around 9.20 p.m. and MLC ExPW12/A clearly mentioned the date as 25.05.2007 and injured was rushed to hospital around 10.55 p.m. on the same date. Complainant in clear terms stated that first he went to his house and then matter was informed to the police. The time of the incident and preparation of MLC might take some time as being time consumed to visit the house and as such, qua delay in lodging the complaint has no value in the eyes of law and is liable to be rejected outrightly.
18. Qua contention of ld. defence counsels regarding defects in the case as non seizure of beer bottles and also qua contradictions and improvements, regarding visit of complainant to his house; his physical condition; presence of public persons at the alleged spot, place where statement of witnesses recorded etc. First of all, ld. defence counsel failed to point out any major contradiction or improvement which may go to the root of the case and secondly, it is also to be seen that incident occurred in the year 2007 while some of the witnesses were examined in the year 2017.
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19. The court is of the view that from time to time in catena of judgments by superior courts, this issue has been dealt with. Hon'ble Apex Court has laid down in catena of judgments that only major contradictions and discrepancies need be considered. Minor discrepancies are to be ignored. For holding this view, court is taking shelter from various cases of higher courts and even Hon'ble Apex Court including a case reported as A. Shankar v. State of Karnataka, (2011) 6 SCC 279, wherein Hon'ble Apex Court observed as follows :
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
20. Minor discrepancies in the statements of witnesses are of no help to the accused. In Siddiqua Vs. Narcotics Control Bureau SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 11 of 22 (2007) Crl LJ 1471 of Hon'ble High Court of Delhi, the Hon'ble High Court of Delhi also observed that minor discrepancies are very natural to occur in testimony of different witnesses and testimony of witnesses can not be rejected on the ground that there were minor discrepancies or contradictions. The Hon'ble Delhi High Court in the said judgment held as follows:
"A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses parrot like repeat the same statement, one after another, such statements would not be natural statements. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each person shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of witnesses can not be SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 12 of 22 rejected on the ground that there were minor discrepancies or contradictions."
21. Hon'ble Delhi High Court has further observed as follows in the said judgment :
"The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. Learned counsel for the appellant can not lift one sentence from here and another sentence from there and ask the Court that the case should depend upon that sentence in the testimony. It is only after considering the entire statement of a witness that the Court has come to a conclusion that the witness was credit worthy or not. The Court has to silt grain from the chaff. It is well recognised that minute details of incident, with the passage of time, go out of memory. In all such cases, the Court has to see whether the over all testimony of the was truthful and whether the incident, as claimed by the prosecution had happened or not. The SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 13 of 22 proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. The prosecution agency is also a human agency and the Court should accept accuracy standards only to the extent which can be expected from a normal human being. The Court should not accept super human standards from the prosecution agency in all aspects. What the Court has to see is that the investigation has been done in a fair and proper manner and there is no false implication of the accused."
22. Besides the above, there is no dispute to the fact that injured is the most interested person to see the actual culprit(s) behind bars. Hon'ble Apex Court in a case titled as State of Uttar Pradesh Vs. Naresh & Ors., 2011 AD (SC) 20 observed to the effect:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence can not be doubted. His statement is SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 14 of 22 generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
23. Apart from that it is also clear, as mentioned above, accused has failed to mention about his presence at any other place, if he was not present at the spot at the time of the incident.
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24. One of the contention of ld. defence counsels is that beer bottle which was allegedly attacked on the complainant, has neither been seized nor sent for any expert opinion at any point of time. Police might recover the same, if case was investigated sincerely. No reason has put forward as to why said beer bottle could not be got recovered. But it is also to be kept in mind that benefit of the faulty investigations cannot be given to the accused persons, if case proves otherwise.
25. Though, it is seen that in the incident complainant Manish Bajaj also sustained injuries and MLC Ex.PW12/A is clear to the aspect that said person sustained injuries but nothing has come on record that who caused injuries to the said injured in the incident and even same has not been deposed before the court to that effect with the alleged history of assault.
26. Apart from that, though witnesses/victims stated that 5-6 persons came and committed the crime but it is crystal clear that only three accused are facing trial and apart from them, one assailant was reported to have expired. Nothing has come on record with certainty that whether crime in question upon the victims was committed by more than four persons to attract the provisions of Sec. 395 IPC, the essential ingredient SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 16 of 22 of which is minimum five persons.
27. Accused persons Suresh, Shakeel and Hassan were produced for their test identification proceedings but all of them refused to join the same and proceedings Ex.PW5/A to O were proved to that aspect. Non joining of test identification parade proceedings is also an adverse inference against these accused persons.
28. In view of the above, court came to the conclusion that prosecution has failed to prove its case against any of these accused persons for the offences punishable under Sec. 395 IPC and 394/34 IPC and as such, accused persons Shakeel S/o Sh. Shabbir Ahmad; Suresh Kumar S/o Sh. Diwan Chand and Hassan S/o Sh. Chaman Khan are acquitted for the offences punishable under Se. 395 IPC and 394/34 IPC. But it has come on record that victims were robbed for their articles and even Manish Bajaj sustained injuries at the hands of the accused persons. However, court is of the view that prosecution has fully proved its case against all these accused persons for the offences punishable under Sec. 392/34 IPC and 323/34 IPC and as such, accused Shakeel S/o Sh. Shabbir Ahmad; Suresh Kumar S/o Sh. Diwan Chand and Hassan S/o Sh. Chaman Khan are held guilty for the said offences i.e. under Sections 392/34 IPC and 323/34 IPC only. SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 17 of 22
29. Now come to the point of Sec. 412 IPC for which separate charge has also been framed against each of these accused persons. First of all, it is to clear that when Sec. 395 IPC has not been attracted/proved, nothing remains for the Section 412 IPC. Now at the most Se. 411 IPC can be proved, if prosecution established its case on that aspect.
30. Qua that aspect, first contention raised by ld. counsels for the accused persons is that no public witness was joined despite their availability. In a case reported as Union of India Vs. Victor Nnamdi Okpo (Crl. Appeal No. 617/2004 decided on 16.09.2010,) Hon'ble High Court of Delhi well observed as:
"It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. While departmental witnesses get leave from their office and also get necessary support from the offence regarding TA,DA , the public witnesses are treated in a very clumsy manner in the courts and they keep standing from SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 18 of 22 morning till evening and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non-joining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of non-joining of public witness or non examination of public witness for valid reasons."
31. As held in Karamjit Singh Vs State (Delhi Admn.) 2003 III AD (SC) 353 the presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. There is no principle of law that without corroboration by independent witnesses their testimony can not be relied upon.
32. It is also admitted position of the law that it must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 19 of 22 acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of law. For holding this view, I am supported with the case reported as Nallabothu Venkaiah Vs. State of Andhra Pradesh, 2002 VI AD (SC)
521.
33. It is also duty of the court to all the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not presides to see that no innocent man is unpunished. 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. (Ref. State of UP V. Anil Singh AIR 1988 SC 1998).
34. None of these accused persons claimed over case property. Admittedly, mobile phone make Sony Ericsson K-750 could not be produced by Manish as being misplaced for which report has been also lodged, but said witness clearly produced his box etc with warranty card SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 20 of 22 etc. Accused Shakeel has failed to mention any reason as to how said property came in his possession, if he was not found in possession of the same.
35. Similarly, recovery aspect from the accused persons - Surersh Kumar and Hassan who allegedly got recovered the purse, photocopy of driving licence etc in the said purse, court is of the view that same also attracted the provisions of Sec. 411 IPC, as such, accused persons namely - Suresh Kumar and Hasan are also held guilty and convicted for the offences punishable under Sec. 411 IPC individually apart from accused Shakeel who is also held guilty for the said offence i.e. punishable under Sec. 411 IPC.
36. With the above observations and discussion made above, sum up of the above discussion is that prosecution has failed to prove its case against any of these accused persons namely Shakeel S/o Sh. Shabbir Ahmad; Suresh Kumar S/o Sh. Diwan Chand and Hassan S/o Sh. Chaman Khan for the offences punishable under Sections 395 IPC; 394/34 IPC and also 412 IPC separately. As such, accused persons namely Shakeel S/o Sh. Shabbir Ahmad; Suresh Kumar S/o Sh. Diwan Chand and Hassan S/o Sh. Chaman Khan are acquitted for the said offences. However, prosecution has fully proved its case against SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 21 of 22 these accused persons namely Shakeel S/o Sh. Shabbir Ahmad; Suresh Kumar S/o Sh. Diwan Chand and Hassan S/o Sh. Chaman Khan separately for the offence punishable under Sections 392/34 IPC; 323/34 and even 411 IPC individually. Accordingly accused persons Shakeel S/o Sh. Shabbir Ahmad; Suresh Kumar S/o Sh. Diwan Chand and Hassan S/o Sh. Chaman Khan individually are hereby held guilty for the offences punishable under Sections 392/34 IPC; 323/34 and also for the offence punishable under Sec. 411 IPC individually and are convicted accordingly.
Announced in the open Court on 02nd day of March, 2020 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.0 SC No.: 1332/2016 State Vs. Shakeel etc. Page No.: 22 of 22