Delhi District Court
State vs . Sunny Kumar & Ors. on 26 April, 2012
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. SUNNY KUMAR & ORS.
FIR No : 359/2007
U/S :392/411/34 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 432/2
2. Unique ID of the Case : 02401R1473502007
3. Date of Commission of Offence : 24.08.2007
4. Date of institution of the case : 24.09.2007
5. Name of the complainant : Sh. Fakhira
6. Name of accused, parentage & : (1) Sunny Kumar @ Sunny
address S/o Sh. Ram Kumar
R/o WZ256, 80 Yards, Harizan
Colony, Tilak Nagar, Delhi.
(2) Pradeep Kumar @ Ashu
S/o Sh. Jogi Ram
R/oWZ251, 80 Yards, Harizan
Colony, Tilak Nagar, Delhi.
7. Offence complained : U/S : 392/411/34 IPC
8. Offence charged with : U/S : 392/411/506/34 IPC
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Convicted for offences U/S
392/506/34 IPC
11.Date of Final Order : 26.04.2012.
FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.1/16
J U D G M E N T
1 The criminal law machinery was set into motion in this case on the complaint of PW2 Fakira. The facts of the case of the prosecution in brief are that on 24.08.2007 at about 4.00 AM near the wall of Delhi Jal Board at about 4.00 AM at traffic Red Light, Outer Ring Road, Kesho Pur Subzi Mandi, the complainant Fakira was robbed of a sum of Rs. 390/ from the right side pocket of his pants at the hands of the accused persons. After robbing the aforesaid money both the accused persons ran away. The complainant made hue and cry. One PCR van passing through the spot stopped hearing the same. The complainant narrated the incident to the police officials of the PCR van. The accused persons were caught by the complainant as well as the two police officials. From the search of the accused Sunny a sum of Rs. 390/ was recovered from right side pocket of his pants. The statement of the complainant Ex. PW2/A was recorded on which Ruqqa Ex. PW6/A was prepared and accordingly FIR Ex. PW1/A was registered. The investigation was undertaken and after the completion of the investigation, the chargesheet against both the accused persons was filed for the commission of the offence U/S 392/411/34 IPC. FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.2/16 2 In compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to accused. Later on, vide Order dated 08.10.2007, charge for offences under Sections 392/411/34 IPC framed against the accused Sunny Kumar and Pradeep by my Ld. Predecessor, Sh. Pooran Chand, the then Ld. MM to which they pleaded not guilty and claimed trial and accused Pradeep was separately charged U/S 506 IPC to which he also pleaded not guilty and claimed trial. 3 In order to substantiate the allegations against the accused, the prosecution examined ten witnesses.
4 PW1 HC Subhash Chander was the DO of this case who proved the FIR as Ex. PW1/A and the endorsement on the rukka as Ex.PW1/B on the record He was not crossexamined by the defence counsel.
5 PW2 Fakhira was the complainant and the star witness of the case. His testimony was recorded on 05.11.2007 wherein he deposed that two months back at about 4.00 AM, he was going to buy the vegetables from Keshav Pur Mandi. He further deposed that when he went for urinating, one FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.3/16 person came from behind who gagged his mouth pushed him at the side of wall and sat on his chest. He further deposed that they were two persons. They started beating him by fist blows and started demanding money from him and they took three notes of Rs. 100/ denomination each and one note of Rs. 50/, one note of Rs. 20/, three notes of Rs. 10/ denomination which were totaling to Rs. 400/. He further deposed that after the incident they ran way towards the park and in the meanwhile, police came at the spot and he told the incident to the police officials and police apprehended those persons. His statement recorded by the police at PSVikas Puri.
The witnesses was sought to be crossexamined by the Ld. APP presumably that the witness was not disclosing the full facts which was allowed. In the crossexamination by the Ld. APP, he admitted that both the accused persons threatened him that he will be eliminated if he raised alarm. He further admitted that the site plan was prepared by the police at his instance and Rs. 390/ were recovered from the possession of the accused persons which were seized vide memo Ex. PW2/B. He further admitted that the accused persons were arrested vide memos Ex. PW2/C and D and personally searched vide memos Ex. PW2/E and F respectively. He correctly identified the accused persons in the Court. He correctly identified the case property i.e. three notes of Rs. 100/ denomination, one note of Rs. FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.4/16 50/, one note of Rs. 20/ denomination and two notes of Rs. 10/ each denomination. The case property was exhibited as Ex. P1 (Colly). He was not crossexamined on behalf of the accused persons. 6 PW3 Ct. Jawala Singh was patrolling in the PCR on 24.08.2007 alongwith ASI Sat Narain Singh, InCharge Van and Driver Radhey Shyam. He further deposed that when at about 4.00 am they were present at outer ring road, near red light, they met one person namely Fakhira who told them that the money has been snatched from him by two accused persons. They saw two persons near the wall of Delhi Jal Board running in opposite side and he alongwith SI Sat Narain apprehended both the accused persons. He further deposed about the recovery of the sum of Rs. 390/ from the accused. He correctly identified the case property and the accused persons. He was also not crossexamined on behalf of the accused persons. 7 PW4 HC Har Sahay was the MHC(M). he deposed that HC Sube Singh deposited one cloth pullanda sealed with the seal of SS in the Malkhana alongwith personal search articles of accused Pradeep. He proved the relevant entry in this regard in the Register No. 19 as Ex. PW4/A. He was also not crossexamined on behalf of the accused persons. FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.5/16 8 PW5 Ct. Devender Kumar was involved in the investigation of this case alongwith the IO HC Sube Singh. He alongwith the IO went to the spot and met ASI Sat Narain, Ct. Jawala Singh and Ct. Radhey Shyam as well as complainant of this case namely Fakhira alongwith PCR van. He proved the disclosure statement of the accused persons as Ex. PW5/A and B respectively. He correctly identified the accused persons and the case property on the record. He was also not crossexamined on behalf of the accused persons.
9 PW6 HC Sube Singh was the IO of this case. He deposed about the investigation carried out by him. He also identified the accused persons and the case property. He was also not crossexamined on behalf of the accused persons.
10 PW7 HC Ram Kishore brought the Duty Register of the driver, InCharge and Gunman. He proved the duty register of PCR, (Power45) dated 23.08.2007 on the record as Ex. PW7/A and B respectively. He was also not crossexamined on behalf of the accused persons. FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.6/16 11 PW8 SI Satya Narain was the InCharge of PCR Van. He deposed consistently on the lines of the case of the prosecution. He correctly identifed the accused persons. He was also not crossexamined on behalf of the accused persons.
12 PW9 Dr. Ajay Sharma was the Medical Officer of DDU Hospital. He proved the MLCs of the accused persons namely Sunny and Pradeep on the record as Ex. PW9/A and B respectively. He identified the signatures of the concerned doctor namely Dr. Varun Gupta who prepared the MLCs on the basis of having been seen him signing and writing during the course of his official duties. He deposed that the present whereabouts of the concerned doctor were not known available.
13 PW10 ASI Gautam Singh was handed over the further investigation of the case by the Duty Officer. He received the copy of the FIR and he alongwith Ct. Devender reached at the spot where he met the complainant Fakhira, ASI Sat Narain, Ct. Jawala Prasad and HC Sube Singh. He received the sealed pullanda with the seal of SS and arrested the accused persons and carried out the personal search of the accused persons. He also recorded the disclosure statement of the accused persons FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.7/16 and proved the site plan as Ex. PW10/A on the record. He was also not crossexamined on behalf of the accused persons.
14 In their statements U/S 313 Cr.P.C. both the accused persons denied the incriminating circumstances appearing against them in the evidence. They submitted that they were innocent and falsely implicated by the police in this case. Despite opportunity given to them, they did not lead any defence evidence for the reasons best known to them. 15 It has been submitted by the Ld. APP that the prosecution has been able to prove the case against the accused persons beyond reasonable doubt for the commission of the offences, the accused persons have been charged with. He specifically drawn the attention of the Court towards the statement of the complainant Fakhira. He submitted that despite cross examination, the testimony of the complainant could not be shaken by the accused persons.
16 On the other hand, the accused persons have submitted that they were innocent and falsely implicated in this case by the police officiols in connivance with the complainant.
FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.8/16 17 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
18 In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand , 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.9/16 evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
19 In the judgment of Sucha Singh and Another Vs. State of Punjab, AIR 2003 Supreme Court, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. 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 escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v.
FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.10/16 Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. 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 the meticulous hypersensitivity 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. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
20 In State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48 the Hon'ble Supreme Court had elaborated the approach which should be adopted by the court when it comes to appreciate the testimony of a witness. It was observed as under:
"9. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.11/16 court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the Appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not to be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Crossexamination is an unequal duel between a rustic and refined lawyer."
21 Recently, the Hon'ble Supreme Court in the judgment of State of UP V/s Krishna Master & Ors reported as AIR 2010 SC 3071 speaking through Hon'ble Mr. J. J.M. Panchal. had the occasion to sum up the criteria for appreciation of oral evidence. In para eight of the said judgment, in this regard the Hon'ble Court was pleased to held as under: "8. Before appreciating evidence of the witness examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.12/16 be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a find by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short coming from which no criminal case is free. The main thing to be seen is whether those consistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory doe to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case." 22 In the light of the aforesaid prepositions of law, now it is to be seen whether the testimony of PW2, Fakhira, the complainant, if considered as a whole, inspires confidence or not, so as to it can be said that the guilt of the accused persons has been brought home by the prosecution beyond reasonable doubt. PW2, in my considered opinion, deposed consistently with the prosecution case. The general tenor of his testimony shows that he has gone the whole hog with the prosecution case. He has consistently FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.13/16 deposed about the manner as to how the incident happened and how the accused persons were apprehended by the help of the PCR officials. He categorically deposed that the Rs. 390/ in the different denominations were recovered from the possession of accused Sunny. Here one question arises about the recovery of the money. PW2 stated in his complaint that Rs.400/ were taken away by the accused persons but only a sum of Rs. 390/ was recovered from the accused Sunny. In my opinion, the contention of Ld. APP in this regard has some merits. He has submitted that the accused persons were not apprehended at the spot immediately after the offence but a few minutes later on when they were running away from the spot and in this process, a sum of Rs. 10/ could have fallen on the ground that is not fatal for the case of the prosecution especially when there was no crossexamination in this regard from the accused. In my considered opinion, no fault can be found with the prosecution case in this regard. Accordingly, the prosecution case cannot be doubted on the same ground.
23 The testimony of PW Ct. Jwala Singh and SI Satya Narayan who were posted at PCR, clearly supported the case of the prosecution and corroborated the testimony of PW Fakhira. They have deposed the manner of the things taking place after the incident. They have deposed the FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.14/16 apprehension of the accused persons and the recovery of the looted amount from them which have been identified by the complainant at the spot itself. PW HC Ram Kishore proved the presence of the PCR officials at the spot by proving the duty register of the concerned PCR. In the judgment of Karamjit Singh V/s State (Delhi Administration) AIR 2003 SC 1311, the Hon'ble Supreme Court held that the testimonies of police officials should be treated in the same manner as testimony of any other witness and the presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. It was held that it would depend upon the facts and circumstances of each case and no principle of law general application can be laid down. In view of no crossexamination, there is nothing to disbelieved the deposition of the prosecution witnesses especially when there is no animosity or hostility has been brought on the record on the part of the police officials against the accused persons. Similarly, nothing has been brought on the record to show that the complainant Fakhira had any illmotive to implicate the accused persons falsely in this case. I have no reasons to disbelieve the testimonies of complainant Fakhira as well as the police officials.
FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.15/16 24 From the aforesaid discussions and in view of the facts and circumstances of the case, I am of the opinion that the prosecution has successfully proved the case against the accused persons for the commission of offences U/S 392/506/34 IPC. Accordingly, accused Sunny and Pradeep are convicted for the offence U/S 392/506/34 IPC. Let the parties be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 26 APRIL, 2012 MM09:WEST:THC
TH
26.04.2012
FIR No. 359/2007 STATE V/s SUNNY KUMAR & ORS. PAGE No.16/16