Delhi District Court
State vs . Pawan on 1 November, 2022
SC No. 630/21
State Vs. Pawan
IN THE COURT OF SHRI DEEPAK JAGOTRA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
SC No.630/2021
CNR No.DLET01-008277-2021
State Versus Pawan s/o Jagpal,
R/o E-79, Old Kondli, near
Ambedkar Park, New Ashok
Nagar, East, Delhi.
FIR No.365/2021
PS New Ashok Nagar
under Section 392/397/411 IPC & 25/54/59 Arms Act.
Date of institution of case : 02-12-2021
Reserved for judgment on : 10-10-2022
Date of passing of Judgment : 01-11-2022
JUDGMENT
1. The present case has been filed by the State seeking conviction of accused namely Pawan for the offence punishable under Section 392/397/411 IPC & 25/54/59 Arms Act.
2. Heard both the sides and assiduously gone through the record of the case.
3. Learned Addl. Public Prosecutor for the State has submitted that prosecution has successfully proved its case beyond a reasonable doubt against accused Pawan and further prays that accused may be convicted for the offence charged Page no. 1 of 17 SC No. 630/21 State Vs. Pawan against him.
4. On the other hand, it has been submitted on behalf of the accused that he has been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond a reasonable doubt against the accused and further prays for the acquittal of the accused.
5. Facts of the case, in concise format, are that on 20.08.2021 at about 8.30 PM at Ambedkar Park, Old Kondli, Delhi, accused committed robbery of blue colour mobile phone make 7-A having SIM no. 9871071377, 8076340119 from the possession of complainant Akash Kumar and while committing the robbery accused had used a knife.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed for trial and the charge-sheet was received by the Court on 02.12.2021. Charge was framed against the accused on 20.12.2021 for the offence punishable under Section 392/397 IPC & 25 Arms Act against the accused. Accused has pleaded not guilty and claimed trial.
8. In order to prove its case, the prosecution has examined as many as three witnesses.
9. Statements under Section 313 Cr.P.C. of accused was recorded on 10.10.2022.
Page no. 2 of 17 SC No. 630/21 State Vs. Pawan
10. In his defence, no witness has been examined by the accused.
11. It is pointed out that the entire case shall be scrutinized and analyzed keeping an eye on the settled provisions of law and judicial precedents.
ANALYSIS OF PROSECUTION EVIDENCE OCULAR EVIDENCE
12. The prosecution, in order to prove its case, has brought in the witness box only one material witness i.e., complainant/victim Sh. Aakash (PW-1).
13. Before the Court, PW-1 complainant/victim Aakash has deposed that on 20.08.2021 at about 8.30 PM he was sitting on the bench in the park. Suddenly, one person under the influence of liquor came there and asked for his mobile phone but he refused for the same. Thereafter, that boy took out a knife and robbed his mobile phone make Redmi 7A of blue colour and fled away.
14. The complete testimony of this witness shall be discussed in the later part of this judgment. DEPOSITION OF OTHER FORMAL PROSECUTION WITNESSES
15. Besides this witness, prosecution has also examined other formal witnesses to prove as follows;
S.No. Name of witness To prove
1. PW-2 ASI Amarjeet Statement of complainant under Section
161 Cr PC.
Page no. 3 of 17
SC No. 630/21
State Vs. Pawan
CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
16. The prosecution story unfolds when on 20.08.2021 at about 8.30 PM a mobile phone make Redmi 7A of blue colour was robbed on the point of knife by a boy from the possession of complainant (PW-1 Aakash). On the next day he got released his mobile Ex. P-1 from the court. He identified two photographs of the said mobile with red cover as Ex. PW-1/A and Ex. PW- 1/B. However, at the time of identification before the court, the said witness has stated that the accused was not the person who robbed his mobile phone.
17. Since PW-1 Aakash did not support the case of the prosecution in any manner whatsoever, the witness was declared hostile and was at length cross examined by Ld. Addl. PP for the State.
18. In his cross-examination by the State, PW-1 Aakash has admitted that statement Ex.PW1/C bears his signatures at point A. He volunteered that actually IO obtained his signatures on some blank papers. He has denied the suggestion that he told the police officials in his statement that some person who was sitting in the park disclosed him that name of the robber was Pawan. He was confronted with the statement from point A1 to Page no. 4 of 17 SC No. 630/21 State Vs. Pawan A2 wherein it is so recorded. He has admitted that site plan was prepared at his instance which is Ex.PW1/D. He has further denied the suggestion that IO recorded his statement on 21.08.2021 Mark-A which bears his signatures at point A or that accused Pawan, (pointed out by the Ld. Addl. PP) was arrested on his identification and his mobile phone was recovered from the left pocket of wearing pant of accused or that one buttondar knife was also recovered from the right pocket of the pant of accused. He was confronted with statement Mark-A wherein it is so recorded. He admitted that seizure memo of mobile Ex.PW1/E, seizure memo of knife Ex. PW-1/F and sketch of the knife Ex. PW-1/G bears his signatures at points A. He has denied the suggestion that above mentioned memos and sketch were prepared in his presence. He admitted that arrest memo Ex.PW1/H and personal search memo Ex.PW1/I of accused bear his signatures at point A. He has denied the suggestion that he signed on the above said papers as accused was arrested in his presence. He admitted that punchnama of mobile Ex.PW1/J bears his signatures at point A and he got released his mobile phone vide superdarinama Ex.PW1/K (running into 5 pages) which bears his signatures at point A, B & C. He has denied the suggestion that it is the same knife (Ex.P-2) which was used by accused Pawan while robbing him on that day or that he is intentionally not identifying the accused and knife being won over by him or that he is deposing falsely.
Ld. Counsel for the accused did not cross examine Page no. 5 of 17 SC No. 630/21 State Vs. Pawan the witness.
19. It is culled out from the statement of PW-1 Aakash that indeed, the mobile phone was robbed from the possession of complainant but at the time of identification in the dock, he stated that he was not the person who robbed his mobile phone. It is trite that identification is the core issue for establishing the guilt of the accused beyond reasonable doubt. Once the identity of the accused is not established in the court qua the offences charged against the accused, it is abundantly difficult to fasten the accused with the crime alleged against him or them.
20. The pith and substance of the testimony of sole witness is that his evidentiary value reduced to nothing. Though, his mobile phone was robbed at the point of knife, yet he has completely let go accused Pawan as the person who had committed any crime with him. Thus, he has completely exonerated the said accused. Resultantly, the testimony of sole witness is not at all worthy of any credence or is liable to be believed in order to lend assurance to the fact if the accused has committed any offence.
21. As far as the evidentiary value of sole witness is concerned, the same is succinctly elaborated in judgment titled as Alagupandi vs. State of Tamilnadu reported in AIR 2012 SC 2405, the Apex Court has observed that :-
"In the case of Govindaraju @ Govinda vs State of Sriramapuram P.S. and Anr., (Crl. Appeal No. 984 of 2007 decided on March 15, 2012), this Court held as under :
Page no. 6 of 17 SC No. 630/21 State Vs. Pawan
11. Now, we come to the second submission raised on behalf of the Appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eye-witness).
It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand MANU/SC/0004/2003 : (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories :
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the Page no. 7 of 17 SC No. 630/21 State Vs. Pawan evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the cases of Joseph Vs. State of Kerala, MANU/SC/1084/2002: (2003) 1 SCC 465 and Tika Ram vs. State of Madhya Pradesh (2007) 15 SCC 760. Even in the case of Jhapsa Kabari and Ors. Vs State of Bihar MANU/SC/0776/2001 : (2001) 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy."
22. Reliance is placed on the judgment of Hon'ble Apex Court titled as 'Sheo Shankar Singh Vs. State of Jharkhand and Ors., Criminal Appeal no. 791-792 of 2005 decided on 15.02.2011 wherein Hon'ble Apex Court has observed as under :
It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Page no. 8 of 17 SC No. 630/21 State Vs. Pawan Identification parades, therefore, remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. As to what should be the weight attached to such an identification is a matter which the Court will determine in the peculiar facts and circumstances of each case. In appropriate cases the Court may accept the evidence of identification in the Court even without insisting on corroboration. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a reference to the following observations made by this Court in Malkhansingh and Ors. v. State of M.P. MANU/SC/0445/2003 : (2003) 5 SCC 746:
It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere Page no. 9 of 17 SC No. 630/21 State Vs. Pawan identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. Inappropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn.
MANU/SC/0043/1958 : AIR 1958 SC 350, Vaikuntam Chandrappa v. State of A.P. MANU/SC/0224/1959 : AIR 1960 SC 1340, Budhsen v. State of U.P. Page no. 10 of 17 SC No. 630/21 State Vs. Pawan MANU/SC/0103/1970 : (1970) 2 SCC 128 and Rameshwar Singh v. State of J and K.MANU/SC/0174/1971 : (1971) 2 SCC
715).
23. In the instant case, the complainant has not identified the accused as perpetrator of the crime. He clearly exonerated accused. The only star witness of the case has not supported the case of the prosecution in any manner whatsoever. There is not even an iota of evidence against the accused, therefore, the very foundation on which the entire prosecution case rests has been demolished by the star witness Aakash (PW-
1). He is the best person who had seen the happening of the incident and he is the best evidence to narrate the true and correct facts. When the only star witness has not implicated the accused with the offence, no guilt whatsoever can be fastened upon him.
No incriminating evidence worth the name has come on record to connect the accused with the crime. Since the material witness has not supported the case of prosecution, the remaining witnesses who are only police official, shall be meaningless as far as connection of the accused with the crime is concerned.
24. PW-3 SI Mukesh Malik has tried to join the dots by stating that on 20.08.2021 one DD No.88A Mark PW3/I with regard to a robbery was marked to him for necessary action. Accordingly, he along with Ct. Sunil Kumar reached at the spot i.e. Ambedkar Park, Old Kondli, Delhi where he met complainant Aakash Kumar. One PCR vehicle was also there. Aakash Kumar requested that he would give his statement after some time in the Page no. 11 of 17 SC No. 630/21 State Vs. Pawan Police station. He returned to the PS. Complainant reached at PS in the midnight and he recorded his statement which is Ex.PW1/C which bears his attestation at point B. He prepared the rukka Ex.PW3/A which bears his signatures at point A. The rukka was handed over to IO and present FIR No. 365/2021 Ex. PW-3/B was registered. He along with complainant reached at the spot where he prepared the site plan at his instance which is Ex.PW3/C which bears his signatures at point A and signatures of complainant at point B. He tried to find out the CCTV footage of that area but of no avail. He along with Ct. Sunil Kumar and complainant reached at Ambedkar Park, Old Kondli in search of the accused. Complainant pointed out towards one person and disclosed that he was the robber. They immediately apprehended him. One buttondar knife was recovered from his wearing pant in his personal search. One mobile make Redmi A-7 was also recovered from the left pocket of the accused and complainant disclosed that it was the mobile which was robbed by the accused after showing the said knife. He prepared the site plan of the place of recovery which is Ex.PW1/D which bears his signatures at point B. He prepared the sketch of the knife which is Ex.PW1/G which bears his signatures at point B. He kept the knife on a cloth and prepared a pulanda and affixed his seal of MKM. He prepared seizure memo in this regard which is Ex.PW1/F which bears his signatures at point B. He also seized the above mentioned mobile vide memo already Ex.PW1/E which bears his signatures at point B. He recorded the disclosure Page no. 12 of 17 SC No. 630/21 State Vs. Pawan statement of the accused which is Ex. PW3/D which bears his signatures at point A. He formally arrested the accused vide arrest memo Ex.PW1/H which bears his signatures at point B. His personal search was conducted vide memo Ex.PW1/I which bears his signatures at point B. Accused was sent to lockup and he recorded statement of witnesses.
Thereafter, investigation of this case was marked to ASI Amarjeet who prepared the charge-sheet and submitted the same in the court for judicial verdict. He identified two photographs of the mobile phone Ex.PW1/A and Ex.PW1/B and submits that these photographs are of mobile which was recovered from the possession of accused Pawan. He correctly identified the knife as Ex. P-2 to be the same which was recovered from the possession of accused Pawan in the above said manner. He also attached copy of the notification Mark- PW3/2 with regard to appropriate measurement of knife. He correctly identified accused Pawan in the court.
25. Said recovery of mobile phone and knife at the instance of accused is in itself not admissible U/s 27 of the Evidence Act simply on the premise that no independent witness was joined in the investigation of the said recovery of the case property. In such situation, no credence whatsoever can be laid on the testimony of police official who got the recovery of mobile and knife from the accused.
26. In the cross examination, carried out on behalf of accused, PW-3 has denied the suggestion that he did not conduct Page no. 13 of 17 SC No. 630/21 State Vs. Pawan fair investigation in this case or that accused Pawan did not commit any offence against the complainant and due to the same, he did not depose anything against the accused or that no mobile phone and knife were ever recovered from the possession of accused. However, he admitted that no independent public witness could be joined at the time of recovery of said mobile and knife and he did not lift the fingerprints upon the knife. He has further admitted that such kind of knife could be available in the market. He handed over the seal to Ct. Sunil after its use. He did not prepare any handing over memo of that seal. He has further denied the suggestion that he prepared all the documents while sitting in the PS or that he obtained signatures of complainant and accused on the blank papers or that accused did not make any disclosure statement or that he is deposing falsely.
27. The aforesaid testimony of the police official is not at all corroborated and supported by the star witness who has stated that IO obtained his signatures on some blank papers. PW- 3 SI Mukesh Malik has tried to prove the case of the prosecution but failed to achieve the result for the simple reason that no conviction can be sustained merely on the statement of the police official. It is trite that the statement of police officials shall be supported and corroborated by the independent evidence and other star witness of the prosecution.
28. In every criminal trial, the identity of the malefactor must be established by proof beyond reasonable doubt. Indeed, Page no. 14 of 17 SC No. 630/21 State Vs. Pawan the first duty of the Prosecution is not to prove the crime but to prove the identity of the offender, for even if the commission of the crime can be established, there can be no conviction without proof of identity of the offender beyond reasonable doubt. Thus, identity of the accused persons could not be established beyond reasonable doubt. In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
29. In Raj Kumar Singh vs. State of Rajasthan (2013) 5 SCC 722, it has been held that:-
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large Page no. 15 of 17 SC No. 630/21 State Vs. Pawan distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
30. Viewing the case from any angle would result in the failure of the prosecution case. In the present case, the star witness's evidence is neither at all supported and corroborated by the police official nor vice versa. From no angle, the case of the prosecution is liable to be succeeded in any manner whatsoever.
31. In view of the foregoing reasons and discussion, the prosecution has failed to prove its case beyond a reasonable Page no. 16 of 17 SC No. 630/21 State Vs. Pawan doubt against accused Pawan for the offence punishable under Section 392/397 IPC & 25 Arms Act. Hence, the case put forth by the prosecution must fail and fall down.
CONCLUSION
32. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. Prosecution has completely failed to bring home the charge under Section 392/397 IPC & 25 Arms Act against accused Pawan. Accused stands acquitted. His Bail Bond is cancelled and surety is discharged.
33. Accused Pawan is directed to furnish fresh Bail Bond in the sum of Rs.10,000/- (Ten Thousand) with one surety in the like amount which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure.
34. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT Digitally signed ON 01st NOVEMBER, 2022. DEEPAK by DEEPAK JAGOTRA Date:
JAGOTRA 2022.11.01 03:00:49 +0530 (DEEPAK JAGOTRA) PRINCIPAL DISTRICT & SESSIONS JUDGE EAST DISTRICT KARKARDOOMA COURTS, DELHI Page no. 17 of 17