Delhi District Court
Witnesses. In Krishan @ Gola Mochi vs . State Of Bihar, 2002 (6) on 12 January, 2015
FIR No.201/10 PS : JAFRABAD
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 201/10
Under Section : 397/411/34 IPC & 25/27 Arms Act
Police Station : Jafrabad
Sessions Case No : 01/14
Unique I.D. No. : 02402R0277292010
In the matter of :-
STATE
VERSUS
1. Rahul
S/o Sh. Parmanand,
R/o. H.No. A-1/4/470,
Paras Nath Complex, Shakarpur, Delhi.
2. Naushad @ Shamim
S/o. Mohd. Yameen,
R/o. H.No.155-CI, Gali no.7,
Nehru Vihar, Delhi. ...........Accused persons
Date of Institution : 27.09.2010
Date of Committal : 24.04.2012
Date of receiving in this Court : 15.01.2014
Date of reserving judgment : 07.01.2015
Date of pronouncement : 12.01.2015
Decision : Accused Rahul is convicted U/S.397 IPC
& U/S. 25 & 27 of Arms Act.
Accused Naushad@Shamim is convicted
U/S. 392 IPC r/w Section 34 IPC.
Page no. 1 of 21
(Pulastya Pramachala)
ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.201/10 PS : JAFRABAD
JUDGMENT
CASE SET UP BY THE PROSECUTION :-
1. On 27.08.2010, at around 07:45 PM, complainant namely Sh.
Dushyant Singh came to Jafrabad police station and handed over one mobile phone bearing no. 8126502309, IMEI No.351532042224037, make and model Nokia 2700 and one knife to IO/ASI Krishan Pal. Complainant also produced two accused persons namely Rahul and Naushad @ Shamim. Statement of complainant was recorded by IO/ASI Krishan, wherein complainant alleged that he was working as mechanic in Globe Auto Mobile at Hapur. On that day, he along with his friend Sh. Tarun Kumar went to Hero Honda Training Centre, situated at Mahipalpur, Delhi for training. After training, they were returning to Hapur. Complainant took DTC Bus from Kashmere Gate, ISBT for Harsh Vihar. At around 07:30 PM, DTC Bus reached 66 foota road and two boys namely Rahul and Naushad boarded the said DTC Bus from the back side gate. Complainant further stated that accused Rahul put the knife on his body with threat of stabbing and the other accused namely Naushad @ Shamim picked his mobile phone i.e. Nokia 2700 from his pocket. Complainant further alleged that his friend namely Tarun Kumar saw the occurrence and apprehended accused Naushad. At the same time, one passenger HC Kamta Prasad also reached there and with the help of aforesaid police personnel accused Rahul was apprehended and knife was recovered from Rahul. Thereafter, both accused persons were taken to Jafrabad police station. On the basis of aforesaid statement, police recorded FIR under Section 392/411/34 IPC and 27 Arms Act and made further investigation. Page no. 2 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD
2. After completion of the investigation, charge-sheet for aforesaid offences was filed against both accused persons namely Rahul and Naushad @ Shamim. Initially, charges were framed in the Court of Metropolitan Magistrate for offences under Section 392/411/34 IPC and 25 Arms Act. However, after examination of complainant and his friend, Metropolitan Magistrate committed the case to Sessions Court by observing that their testimonies referred to case of offence under Section 397 IPC, which was exclusively triable by Sessions Court. Thereafter, on 17.08.2012, separate charges were framed for offences under Section 392/397/34 IPC against both accused persons; for offence under Section 25/27 Arms Act against accused Rahul and for offence under Section 411 IPC against accused Naushad @ Shamim, to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :-
Prosecution examined 6 witnesses in support of its case.
3. PW-1/Sh. Dushyant Singh and PW-4/Sh. Tarun Kumar were public witnesses. PW-1 was the victim of alleged robbery and PW-4 was his companion at the relevant time of robbery. PW-1 and PW-4 deposed in respect of robbery. The testimony of PW-1 and PW-4 defer from the account of facts given by them before police and before the court of Metropolitan Magistrate. PW-1 produced the mobile phone, which was robbed from him and proved his statement given before the police as Ex.PW-1/A. I shall discuss the testimonies of both these witnesses in detail in my findings. PW-2/HC Naresh Kumar was working as Duty Officer on 27.08.2010 in Jafrabad police station, who recorded FIR at 08:45 PM, on the basis of rukka received from PW-6/ASI Krishan Pal.
Page no. 3 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD He proved FIR as Ex.PW-2/A. PW-3/HC Kamta Prasad was also present in the same bus, in which the alleged incident of robbery had taken place. He had overpowered both the accused persons with the help of other passengers including the victim. Both accused persons had disclosed their name before him and even the complainant and his friend i.e. PW-1 and PW-4 also disclosed their name to him. He had taken all of them to Jafrabad police station and produced them before duty officer and thereafter, he left the police station.
4. PW-5/Ct. Chattar Singh was posted in Jafrabad police station on 27.08.2010 and he joined investigation of this case with PW-6/ASI Krishan Pal. He found both accused persons along with some other persons in the room of IO. The custody of accused persons was left with this witness in the police station and IO had proceeded to the spot for preparing site plan. He kept a vigil over the accused persons in police station itself till the time IO came back and took over their custody.
5. PW-6/ASI Krishan Pal was the IO of this case. On 27.08.2010 complainant along with PW-3/HC Kamta Prasad and PW-4/Sh. Tarun Kumar came to police station. They had brought both accused persons and these persons were referred to him by the duty officer. He recorded statement of complainant/PW-1 through PSI Vivek Sharma, which was proved as Ex.PW-1/A. A mobile phone and a knife were produced before him by PW-1 and he prepared tehrir and got the FIR registered. Thereafter, he prepared separate pullandas of mobile phone and knife and sealed them. He seized these articles vide seizure memo Ex.PW-1/B and Ex.PW-1/I. Thereafter, he prepared site plan at Page no. 4 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD the instance of PW-1, which was proved as Ex.PW-6/B. He arrested both the accused persons and took their personal search. The respective memos were already exhibited during examination of PW-1. Finally, he filed chargesheet.
PLEA OF ACCUSED :-
6. Both accused persons were examined under Section 313 Cr.P.C. and both of them pleaded that they were falsely implicated in this case. Accused Rahul pleaded that he was taken to Jafrabad police station, however, accused Naushad was not taken to police station along with him. He further pleaded that there was crowd and lot of confusion, but police falsely implicated him. Accused Naushad pleaded that he was also taken to Jafrabad police station and accused Rahul was already present at police station. He further pleaded that there was crowd near Jafrabad puliya and out of confusion police falsely implicated him because he was standing there. He further pleaded that he was going to deliver invitation card of marriage of his sister to his uncle residing in Jafrabad.
DEFENCE EVIDENCE :-
7. Accused Naushad produced DW-1/Mohd. Imran, who deposed that Naushad had come to his factory situated in Gali no.1, Jafrabad on 27.08.2010 at around 06:00 PM. Naushad is his nephew and who gave him invitation card of marriage of his sister. Naushad remained with him up to 07:00-07:15 PM and thereafter, he went away. Later on, he received a call from his sister-in-law i.e. mother of Naushad on the land line number of his factory to the effect that Naushad was arrested by police official of Seelampur police station. He visited Seelampur police Page no. 5 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD station and by that time his brother-in-law Yameen i.e. father of Naushad had already reached Seelampur police station and he remained out side the police station.
ARGUMENTS OF PROSECUTION :-
8. Ld. Addl. PP submitted that the testimony of PW-1 and PW-4 as given before the Sessions Court should be used only for the purpose of corroboration because they have apparently changed their statement on subsequent occasion, probably under fear of the accused persons or for the other reasons. He further submitted that PW-3 is most important witness of this case, who was a chance witness and his testimony is corroborated in material terms by PW-5 and PW-6. He further submitted that even PW-1 and PW-4 have referred to the presence of PW-3 at the time of alleged robbery. Therefore, the case of prosecution is well established to prove the guilt of accused persons. ARGUMENTS OF DEFENCE :-
9. On behalf of both accused persons oral and written arguments were made in this case. Ld. defence counsel submitted that there are lot of contradictions in the statement of PW-1, which make his testimony unreliable. He further submitted that PW-3 was a planted witness and falsity of his testimony is apparent from the fact that he deposed that his statement was recorded by IO after one or two days of the incident, though his statement under Section 161 Cr.P.C. i.e. Ex.PW-3/DA is dated 27.08.2010 i.e. the date of alleged incident. He further submitted that PW-4 did not identify the accused persons and admittedly no incident had taken place in the presence of PW-5 and PW-6. IO did not join the driver or conductor of the bus, on which the alleged incident Page no. 6 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD had taken place and therefore, the case of prosecution is not reliable.
He referred to judgment passed by High Court of Delhi in Criminal Appeal no.721/2011, titled as Anil Kumar Sharma v. State, decided on 05.08.2011 to submit that the recovery of weapon was disbelieved by the Court in that case. He also referred to another judgment titled as Virender Yadav v. State, 2011 (4) JCC 2635, to support his plea of doubtful recovery of weapon being a ground for acquittal. FINDINGS :-
10.As per testimony of PW-1/Dushyant recorded in the Sessions Court during his re-examination, he did not remember the date and month of the incident, though he told that this was incident of the year 2010. He along with his friend Tarun(PW-4) had boarded a DTC bus to go to Harsh Vihar. At about 07:30 PM, this bus reached near Jafrabad. 5-6 boys, who had boarded the bus near Yamuna river, surrounded him and one of them picked out his mobile phone from the pocket of his pant. Thereafter, those boys deboarded the bus near welcome puliya and this witness raised alarm. The bus was stopped. This witness deboarded the bus and chased those boys. One co-passenger from the bus also chased those boys and with the help of public apprehended those boys. That co-passenger was police official. He took two boys to PS Jafrabad, who had picked his pocket and removed his mobile phone. This witness also went to PS and demanded back his mobile phone, which was recovered from the possession of the accused persons and which was in the hand of co-passenger/police official (PW-3). Police official obtained his signatures on some papers and told him that his mobile phone shall be released on superdari by the order Page no. 7 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD of court. His friend had also went to PS and accused persons had also gone to the police station on the date of incident. His statement was recorded, which is Ex.PW-1/A. However, this witness did not identify the accused persons as persons, who robbed his mobile phone and deposed that he did not know anything more about this case. He was cross-examined by ld. Addl. PP, but he could not remember the date of incident. He denied the suggestion that one of the accused namely Rahul had put knife on his abdomen and threatened him not to do any act and the other boy namely Naushad had removed his mobile phone from the pocket of his pant. He also denied the suggestion that his friend Tarun (PW-4) had seen the robbery and had apprehended Naushad and in the meantime co-passenger namely HC Kamta Prasad (PW-3) also reached there and apprehended Rahul as well as snatched knife from the hand of Rahul. He also denied the suggestion that he had produced the accused persons along with recovered knife and mobile phone to the IO. Though, he admitted that his mobile phone was seized by the police. He also denied the suggestion that IO had seized the knife and prepared its sketch or that both accused Rahul and Naushad were arrested in his presence. However, he admitted that the arrest memo and personal search memo of both accused persons bore his signature. He denied the suggestion that both the accused persons namely Rahul and Naushad had committed robbery with him or that he was won over by these accused persons. He also denied the suggestion that in his statement on oath given before Metropolitan Magistrate on 16.03.2011, he had deposed that Rahul had put knife on his body and other accused had picked his mobile phone from his Page no. 8 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD pocket. This witness was cross-examined by defence counsel as well and in his cross-examination, he deposed that site plan was not prepared by IO in his presence. He also deposed that his statement was not recorded at the spot. But he denied the suggestion that actual accused persons, who committed the robbery with him had run from the spot and that accused persons, who were present in the court were wrongly caught.
11. PW-4/Tarun Kumar also did not remember the date of incident in his fresh testimony given before the Sessions Court. According to him, he along with his friend Dushyant (PW-1) were coming in a DTC bus.
When the bus reached near PS Jafrabad, his friend Dushyant asked him whether this witness had taken his mobile phone. This witness denied taking his mobile phone and in the meantime, 4-5 boys started running towards the gate of the bus. Out of them, 2-3 boys were apprehended by public persons and were taken to PS. The mobile phone of his friend was recovered from one of those boys and he had also gone to the PS Jafrabad, where his signature was obtained by police official on some papers. He admitted that sketch of knife, seizure memo of knife, seizure memo of mobile, arrest memo and personal search memo of both accused persons bear his signature. However, he also refused to identify the accused persons as robbers stating that he had not seen them. He further deposed that he did not know anything else about this case. He was also cross-examined by ld. Addl. PP and he admitted that his statement was recorded before Metropolitan Magistrate on 28.09.2011 on oath and he had stated true facts about the incident. He also admitted the suggestion that he identified both the Page no. 9 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD accused persons in that statement. However, once again he denied the suggestion that his statement recorded before Metropolitan Magistrate i.e. Ex.PW-4/A was his true and correct statement. He also denied the suggestion that he was won over by the accused persons.
12.In this case, PW-1 and PW-4 were examined twice before the court.
Initially, they were examined before the court of Metropolitan Magistrate, as IO had filed chargesheet under Section 392/411/34 IPC and 27 Arms Act and trial of this case was going on before Metropolitan Magistrate. However, after examination of PW-1 and PW-4, Metropolitan Magistrate passed order dated 24.04.2012, thereby observing that their testimonies disclosed a case of offence under Section 397 IPC, which is exclusively triable by Sessions Court and accordingly case was committed to this Court as per provision of Section 323 Cr.P.C.
13. In their statement on oath before the court of Metropolitan Magistrate, PW-1 and PW-4 both identified accused Rahul as the person, who had put a knife over PW-1 and accused Naushad as the person, who had taken out mobile phone of PW-1. Both of them deposed about PW-3, as the person who was also traveling in the same bus and who apprehended accused Rahul and snatched knife from him, helped PW-1 and PW-4 to apprehend both accused and accompanied both of them to police station. However, when these two witnesses were again examined during fresh trial of this case before Sessions Court, then both of them changed their version relating to the incident and refused to identify both accused persons to be involved in this case. PW-1 even disowned his statement dated 16.03.2011, which was given by him Page no. 10 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD before Metropolitan Magistrate. PW-4, however, admitted that he had given statement on oath on 28.09.2011 before Metropolitan Magistrate and had stated true facts about the incident. He also admitted that he had identified both accused persons. However, he again denied correctness of his statement dated 28.09.2011 i.e. Ex.PW-4/A.
14. It is well apparent that PW-1 and PW-4 gave two contradictory statements before two different courts, in respect of same incident. Now the question arises that what could be the reasons behind above mentioned U-turn taken by these two witnesses.
15.In order to assess these reasons, it is relevant to mention the observations recorded by Metropolitan Magistrate on 04.08.2011, while recording statement of PW-1. On that day further examination-in-chief of PW-1 was being recorded and this witness was put to cross- examination by accused persons. During his cross-examination, PW-1 informed the court that accused Naushad had threatened him outside the court room that his boys were waiting outside the court, so he must give his evidence properly.
16.The court had deferred his further cross-examination and thereafter, PW-1 and PW-4 were examined on 28.09.2011. Though, on 28.09.2011 these witnesses did not deviate much from their statement given to police and maintained their stand to point out to both accused persons as the robbers, but in their fresh examination on 30.10.2012, 16.02.2013 and 25.03.2013 these two witnesses came up with totally different account of facts. Such fresh development taken place in the stand taken by PW-1 and PW-4, can be seen to be related to influence exercised by accused persons to mould their statement. It is not the Page no. 11 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD case set up by even defence that PW-1 and PW-4 were having any kind of enmity with accused persons at any point of time. Therefore, there could not be any plausible reason for these two witnesses to testify against both accused persons in their previous statements given before Metropolitan Magistrate. Hence, change in their stand can certainly be attributed to influence exercised over them by accused persons.
17.This situation is well reflected with the kind of statement given by these two witnesses before Sessions Court. Both these witnesses deposed that though incident of theft had taken place in the bus and one co- passenger, who was a police official, chased those boys and apprehended them and he took them to PS Jafrabad, but these witnesses could not identify accused persons because they had not seen them. Both these witnesses deposed that they had also gone to police station and admitted their signatures on different memos including arrest memo and personal search memo of both accused persons, still they deposed that they had not seen the accused persons. These witnesses had seen both accused persons before the court of Metropolitan Magistrate and they had also identified both accused as the culprits, still they deposed that they had not seen the accused persons and they did not want to say anything more as they did not know anything else. It has to be appreciated that before Sessions Court, these two witnesses did not say that though they had seen both accused on previous occasions in police station and before the court of Metropolitan Magistrate, but these accused persons were not the culprits and they were wrongly arrested by police. The another Page no. 12 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD glaring aspect of testimonies of PW-1 and PW-4 is that they have given different account of incident in their testimony before the Sessions Court. PW-1 deposed about picking of his pocket and subsequent chase of the robbers. On the other hand, PW-4 deposed that PW-1 asked him about his mobile phone, meaning thereby PW-1 was not conscious of any theft or robbery and he came to realize about picking of his pocket only when some boys started running away from the bus. Such contradictory account of facts appears to be purposely given, in order to create confusion and doubt, so that accused persons could get a benefit of the same. However, the court cannot be oblivious of the deliberate U-turn being taken by these witnesses and therefore, their such testimonies have to be discarded.
18. Therefore, I have no hesitation to hold that PW-1 and PW-4 deposed falsely before the Sessions Court in respect of manner in which incident took place, during fresh trial of this case.
19. As pointed out by ld. Addl. PP, I do find that PW-3/HC Kamta Prasad is the star witness of the prosecution. In the light of aforesaid circumstances, the testimony of PW-3 assumes much importance, who was another eyewitness of the alleged incident of robbery. This witness deposed that he was also traveling in the same DTC bus and when this bus reached near Welcome puliya at about 07:30 PM, one boy had put knife on the stomach of a passenger and the other boy, who was standing near that passenger removed mobile phone from his pocket. One another boy was also accompanying that passenger, who was robbed. That boy raised alarm and this witness snatched the knife from the hand of the accused, who had put the knife on the stomach of the Page no. 13 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD passenger for the purpose of robbery and with the help of those two passengers, other robber was also apprehended, who had removed the mobile phone. It is recorded in the testimony of this witness that the friend of complainant (PW-4) had recovered knife from the possession of that accused. However, when such line is read in continuity of previous lines, then it appears to be a case of typographical mistake as this witness had already snatched knife from Rahul and he deposed that companion of that passenger i.e. PW-4 had recovered mobile phone from Naushad. The name of robber, who had used knife was revealed as Rahul and the name of other robber, who had removed the mobile phone was revealed as Shamim @ Naushad. The name of complainant was revealed as Dushyant and his friend was Tarun. This witness further deposed that both accused persons were taken to PS by them and he left PS thereafter. Later on, IO of the case met him and recorded his statement. He identified both the accused persons as robbers.
20.It is worth to repeat here that even PW-1 has referred to the presence of PW-3 in the bus and the name of this witness has appeared in the initial statement of PW-1, which was given before IO i.e. Ex.PW-1/A. In that statement also, it was mentioned that PW-3/HC Kamta Prasad had snatched knife from the Rahul. It was also mentioned that PW-1, PW-3 and PW-4 had taken both accused persons namely Rahul and Naushad to PS along with the knife and mobile phone, which were handed over to the IO. This incident had taken place at around 07:30 PM and the FIR was lodged immediately thereafter at 08:50 PM. It is but natural that some time would have been taken to take robbers to Page no. 14 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD the PS and thereafter, in the process of assignment of this case to the IO and recording of statement of the complainant/PW-1.
21.The defence challenged the testimony of PW-3 suggesting that he was not traveling in that bus and therefore, he was not having any traveling ticket. The defence also took plea in the cross-examination of PW-3 that he did not join investigation of this case and nothing had happened in his presence. However, defence could not succeed in shaking the consistency of the statement given by PW-3. Just because PW-3 did not take traveling ticket, it cannot be conclusively presumed that he was not traveling in that bus. PW-3 withstood rigour of cross- examination and came up with natural replies, which were well consistent with case of prosecution. PW-3 admitted the suggestion that site plan was not prepared in his presence and it is also the case of the prosecution that site plan was not prepared in the presence of PW-3. PW-3 deposed that he did not call at 100 number. Even the case of prosecution does not mention about any call made at 100 number. PW-3 was not required to make any call at 100 number because he had taken control of the situation with the help of PW-1 and PW-4. There was no such emergency to take the victims to the hospital, on account of any serious injury. Being himself a police official, PW-3 had all the reasons to be more confident than other public persons. In fact, PW-3 deposed that other public persons did not help them at all. Even PW-1 and PW-4 had not stated about any role played by other public persons, in their testimonies given before Metropolitan Magistrate. Most importantly, defence did not put any suggestion to PW-3 so as to suggest any motive for him to falsely implicate both accused persons in Page no. 15 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD this case.
22.PW-5 and PW-6 were admittedly not present at the spot of incident and they therefore, accepted that nothing was recovered in their presence. PW-5 and PW-6 identified both accused persons, as the persons who were brought in the PS with allegations of committing robbery on the point of knife and taking away of mobile phone from the pocket of PW-1. The defence counsel put much force on his argument that PW-3 and PW-6 have given contradictory statement relating to the date when statement under Section 161 Cr.P.C. was recorded.
23.PW-3 in his cross-examination deposed that his statement might be recorded by IO after one or two days. On the other hand, IO/PW-6 deposed that he had recorded statement of all witnesses on the first date itself except that of Ct. Chattar Singh/PW-5. The given description of contradiction regarding date of recording of statement under Section 161 Cr.P.C. does not have any bearing on the merits of the alleged facts. This contradiction is related merely to a part of investigation, wherein statement of a witness is recorded under Section 161 Cr.P.C. On the basis of this contradiction, it cannot be said that PW-3 was not an eyewitness of the alleged incident because his presence is also mentioned by PW-1 and PW-4 in their statement, which were given before Metropolitan Magistrate as well as before Sessions Court. PW-3 was a chance witness and was not working in the same police station. The argument of defence that the contradiction regarding date of recording of statement under Section 161 Cr.P.C. reflects that he was a planted witness, cannot be accepted and I do not find any reason to doubt the credibility of PW-3.
Page no. 16 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD
24.Even PW-5 and PW-6 have deposed in consistent manner to say that on 27.08.2010, both of them were posted in PS Jafrabad. On that day, PW-1 came to PS along with PW-3 and PW-4. They had also brought both accused persons and were referred by duty officer to PW-6/IO. PW-5 joined IO in his room in the PS, where he found both the accused persons along with some other persons. He was asked by IO/PW-6 to keep a watch over accused persons and IO went to the spot for preparing site plan etc. IO came back to PS and took custody of both accused persons. He prepared sketch of knife in his presence and sealed and seized it. IO also prepared pullanda of mobile phone and seized it. Both accused persons were arrested in his presence in the PS itself.
25.Thus, I do not find any material inconsistency in their testimony, which can affect the credibility of case of prosecution regarding the investigation conducted in the case. The factum of robbery being committed by accused Rahul on the point of knife stands well established by virtue of testimony of PW-3. The factum of participation in this robbery by accused Naushad in the form of taking away the mobile phone of PW-1, at the time when a knife was put on PW-1 by accused Rahul, is also well established. I have already observed that the testimony of PW-1 and PW-4 as given before the Sessions Court suffer from deliberate modification and the probable reason thereof have been also referred by me. The testimony of DW-1 is not supported with any concrete material. He is uncle of accused Naushad and therefore, it is very much probable that he would try to save Naushad. Most importantly, his testimony is falsified by statement given Page no. 17 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD by Naushad under Section 313 Cr.P.C. Naushad stated that he was present at Jafrabad puliya and police caught him out of confusion. Thus, presence of Naushad at the workshop of DW-1 stands negated.
26.It is not necessary that in absence of a reliable testimony from the complainant or other public witnesses, the court cannot raise presumption of guilt of accused on the basis of testimony of police witnesses. In Krishan @ Gola Mochi Vs. State of Bihar, 2002 (6) SCC 81, Apex Court held that :-
"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at the times under the stress of cross-examination, certain answers are Page no. 18 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days, it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent."
27.It is well settled now that police witnesses are not lesser credible witnesses, unless their testimony is found suffering from some material contradiction. There is no rule of law, which says that public witnesses speak truthfully in all the circumstances and police witnesses speak falsely in all the circumstances. Rather, the case in hand shows that PW-3/HC Kamta Prasad was not on his duty at the relevant time, still he acted like a prudent citizen as well as a responsible police officer, not only to prevent any mis-happening by way of use of the knife, but also to nab the robbers by intervening in the matter. The conduct of other passengers of the bus is not shown to be very positive one, in the given account of the incident. The objection of the defence that bus conductor and driver or any other witness were not examined by the IO, do not hold ground to demolish the case of prosecution, because the Supreme Court has well recognized the evasive tendency of the public persons from joining investigation of a case. In the present case, Page no. 19 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD the bus conductor and driver could not have been joined as none of the persons could note down their particulars or even the number of the bus in question. Furthermore, there was no reason for the IO to assume that PW-1, PW-3 and PW-4 would not be sufficient in number to give account of incident in question before the court.
28.In view of my forgoing discussions, I find that the prosecution has been able to prove the charges of offence punishable under Section 397 IPC against accused Rahul. The prosecution has also proved the charges of offences punishable under Section 25 and 27 of Arms Act for possessing a knife and using the same in contravention of Section 5 of Arms Act by accused Rahul.
29.The case of prosecution is also proved against accused Naushad for offence punishable under Section 392 IPC r/w Section 34 IPC. Naushad cannot be held guilty for offence punishable under Section 397 IPC with the help of Section 34 of IPC because admittedly he was not armed with any deadly weapon nor did he use any such weapon in the robbery. In Surinder v. State 2007 (98) DRJ 124, Delhi High Court held that :-
"The individual role of the accused has to be considered in relation to use or carrying a weapon at the time of dacoity for attracting the provisions either of Section 397 IPC or Section 398 IPC." (Also refer to Ashfaq v. State, JT 2004 (5) SC 484)
30.Since, Naushad is found guilty for offence under Section 392 IPC, I do not find any need to convict him for offence punishable under Section 411 IPC.
Page no. 20 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.201/10 PS : JAFRABAD
31. Accordingly, accused Rahul is convicted under Section 397 IPC and under Section 25 & 27 of Arms Act. Accused Naushad @ Shamim is convicted under Section 392 IPC r/w Section 34 IPC.
Announced in the open court (PULASTYA PRAMACHALA) today on 12.01.2015 Additional Sessions Judge (Shahdara), (This judgment contains 21 pages) Karkardooma Courts, Delhi Page no. 21 of 21 (Pulastya Pramachala) ASJ (Shahdara) Karkardooma Courts / Delhi