Delhi District Court
State vs . Gurbhej Singh, on 7 September, 2019
Sessions Case No.56866/2016
IN THE COURT OF GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Sessions Case No. 56866/2016
CNR No. DLWT010014152015
FIR No. : 1327/2014
Under Sections : 392/397 IPC
Police Station : Tilak Nagar.
In the matter of:
State Vs. Gurbhej Singh,
S/o Sh. late Sardar Sunder Singh,
R/o 217, Ground Floor, Gali No.4,
Guru Nanak Nagar, Shahpur,
Tilak Nagar, Delhi.
Date of committal of case : 13.02.2015
Date of hearing arguments : 07.09.2019
Date of pronouncement of Judgment : 07.09.2019
Decision : Convicted.
JUDGMENT:
1. Accused Gurbhej Singh was chargesheeted by P.S. Tilak Nagar for the commission of offences punishable under Section 392/397 IPC on the allegations that on 07.11.2014 at about 12:45 pm, he robbed the complainant Azad Singh of his mobile phone no.8750982425 and while FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.1/28 Sessions Case No.56866/2016 committing robbery, he also inflicted injury on the neck of the complainant with a knife.
2. The case of the prosecution is that 2.1 On 07.11.2014, upon receiving DD No.20A Ex.PW2/A, SI Ashok Kumar/PW10 alongwith Ct. Lokender/PW7 reached at the spot i.e. Bus Stand, Chand Nagar, Delhi where they came to know that the driver of DTC Bus No.410 alongwith the bus had gone to Park Hospital, Chowkhandi. Then, both the police officials went to Park Hospital and found that injured Azad Singh was taking treatment vide MLC No.68/14 Ex.PW4/A. SI Ashok Kumar recorded the statement of the injured Azad Singh Ex.PW1/A which is translated as under:
"I am posted as driver at Keshopur Depot. Today's morning, I deputed on bus route no.410 plying between JJ Colony, Khyala to Jal Vihar Terminal bearing registration No.DL1P7230. At about 11:36 am, I left from Jal Vihar Terminal to go to Khyala J. J. Colony alongwith conductor Kuldeep Singh and when reached Chand Nagar Bus stand at about 12:45 pm, one person boarded the bus and came near to me and gave two knife blows on my neck and also asked my mobile phone. I asked him the reason for doing the same. He removed my mobile phone of make Micromax having sim no.8750982425 from the pocket of my wearing shirt and deboarded the bus. The assailant was a Sikh person having age of around 50/55 years and he was fair complexion. I seek action against him."FIR No.1327/2014
State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.2/28 Sessions Case No.56866/2016 2.2. On the basis of the above statement of the complainant/injured, SI Ashok Kumar prepared the rukka and got the FIR registered Ex.PW2/B. 2.3. During the investigation, SI Ashok inspected the spot and prepared the site plan. Spot was also got inspected through crime team and photographs of the spot were taken. He also seized the exhibits. 2.4. During the investigation on 08.11.2014, on receipt of secret information, PW10 SI Ashok Kumar alongwith PW11 Ct. Babulal and secret informer reached near 759/W, HoNo.A254, JJ Colony Chaukhandi Tilak Nagar, Delhi. After showing the house of accused i.e. Ground Floor, H.No.A254, JJ. Colony, Chaukhandi, Tilak Nagar, Delhi, the secret informer left from there. The police officials overpowered the accused and took him to Police Station. In the mean while, complainant Azad Singh and his conductor Kuldeep Singh came in the PS and they had identified the accused as assailant of this case. At about 04:00 pm, the accused was arrested vide arrest memo Ex.PW1/D; his personal search was conducted vide memo Ex.PW10/D and his disclosure statement was recorded vide memo Ex.PW10/C. Accused also recovered the weapon of offence i.e. knife having blood stains from his house in pursuant to his disclosure statement. SI Ashok Kumar prepared the sketch of the knife vide memo Ex.PW10/E and also measured its length. He also seized the knife vide memo Ex.PW10/F. Efforts were also made to search the robbed mobile but FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.3/28 Sessions Case No.56866/2016 in vain. He also put the IMEI number of the robbed mobile on surveillance. 2.5 On 21.11.2014, PW12 SI Rampal obtained the subsequent opinion qua the weapon of offence and sent the exhibits to FSL for examination. He also collected the record pertaining to the employment of complainant as driver and Kuldeep Singh as conductor from Keshopur Depot. During the investigation, the complainant also produced the bill of his robbed mobile phone and PW12 SI Rampal seized the same vide memo Ex.PW1/E. SI Rampal also added Section 397 IPC in the investigation. He also recorded the statements of the PWs who joined investigation. After completion of investigation, charge sheet was filed against the accused Gurbhej Singh in the court on 05.02.2015.
3 On 24.02.2015, charges for the commission of offences punishable under Sections 392 and 397 IPC were framed against the accused to which he pleaded not guilty and claimed trial.
4. To prove the charges against the accused persons, the prosecution examined 12 witnesses in all. For sake of convenience, a brief description of all the prosecution witnesses as well as their testimony and the documents relied upon by them is mentioned hereinbelow: PWName Nature of evidence Documents proved.
PW1 Sh. Azad Complainant / injured of the Ex.PW1/A Singh case. (complaint), FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.4/28 Sessions Case No.56866/2016 Ex.PW1/B (seizure memo of his blood stained shirt), Ex.
Ex.PW1/C (seizure
memo of mat of bus),
Ex.PW1/D (arrest
memo of accused),
Ex.PW1/E (seizure
memo of bill of mobile
phone), Ex.PW1/F
(bill of mobile phone).
Witness has also
identified the knife
Ex.P1 by which
accused caused
injuries to him, Ex.P2
(his shirt) and Ex.P3
(mat of the bus).
PW2 HC Anita Duty Officer recorded the FIR. Ex.PW2/A (DD No. 20A). Ex.PW2/B (FIR), Ex.PW2/C (endorsement made on rukka by her), Ex.PW2/D (certificate under Section 65B of Indian Evidence Act).
PW3 Sh. Eye witness/conductor of the He also identified the
Kuldeep Singh. bus. knife Ex.P1 and mat
Ex.P3.
PW4 Dr. P.D. Examined the patient Azad Ex.PW4/A (MLC of Gupta, General Singh vide MLC No.068. injured).
FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.5/28 Sessions Case No.56866/2016 Surgeon, Park Hospital, Meera Enclave, Choukhandi, Near Keshopur Bus Depot, Outer Ring Road, Delhi. PW5 Dr. B.N. Given the subsequent opinion Ex. PW5/A Mishra, Sr. qua the weapon of offence i.e. (subsequent opinion) Medical Officer knife. and Ex.PW5/B (sketch cumMedico of knife). Legal Expert, Department of Forensic Medicine, DDU Hospital, Delhi. PW6 Sh. Produced the record i.e. duty Ex.PW6/A (duty Ravinder Kumar memo pertaining to PW memo), Ex.PW6/B (Driver) Batch 1/complainant Azad Singh and ( the back portion of No.21328, identified duty memo having Keshopur DTC handwriting/signatures of Sh. batch number, bus Depot, New Ramesh Kumar who issued number, route number Delhi. duty slip to PW1. and duty number of the driver) and Ex.PW6/C (duty slip). PW7 Ct. On receipt of DD no.20A dt. Lookender 07.11.2014, accompanied the Singh first IO/ASI Ashok Kumar to the spot and Park Hospital; took FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.6/28 Sessions Case No.56866/2016 the rukka to PS for registration of FIR and after registration, handed over the copy of FIR and original rukka to IO in hospital.
PW8 SI Kalyan On 07.11.2014, alongwith HC Ex.PW8/A (scene of Singh Sanjeev (photographer) and Ct. crime report).
Parvinder (fingerprint
proficient) visited and inspected
the spot; prepared scene of
crime report.
PW9 HC Took the photographs of the bus Ex.PW9/A1 to
Sanjeev, and mat. Ex.PW9/A5
Photographer. (photographs) and
Ex.PW9/B1 to
Ex.PW9/B5
(negatives).
PW10 SI Ashok First Investigating Officer. Ex.PW10/A
Kumar. (endorsement made by
him on the statement
of complainant),
Ex.PW10/B (site plan),
Ex.PW10/C
(disclosure statement
of accused),
Ex.PW10/D (personal
search memo of
accused), Ex.PW10/E
(sketch of knife
prepared by him),
Ex.PW10/F (seizure
memo of knife).
FIR No.1327/2014
State v. Gurbhej Singh
PS Tilak Nagar, U/S 394/397 IPC. Page No.7/28
Sessions Case No.56866/2016
PW11 Ct. Babu On 08.11.2014 accompanied
Lal. first IO/SI Ashok Kumar at the
time of apprehension, arrest,
personal search, recording of
disclosure statement of accused
and recovery of knife at the
instance of accused.
PW12 SI On 21.11.2014, received parcel Ex.PW12/A (Icard of
Rampal, Second from MHC (M) and handed complainant),
Investigating over the same to Dr. B. N. Ex.PW12/B (seizure
Officer of this Mishra; received subsequent memo of parcel which
case. opinion from him and same was given by doctor),
handed over to IO; parcel Ex.PW12/C (PCR
deposited in the Malkhana; He Form).
received this case file for further
investigation.
On 19.12.2014, issued u/s 91
Cr.P.C. to the Incharge,
Keshopur DTC Bus depot;
collected attested duty roster
and driver memo; he also
collected duty slip and ID card
of complainant and seized the
same.
On 26.12.2014, he visited the
DDU hospital alongwith
injured; doctor handed over
blood sample of complainant
alongwith sample seal and
seized the same.
On 28.12.2014, complainant had
also handed over one bill of his
mobile and he seized the same;
FIR No.1327/2014
State v. Gurbhej Singh
PS Tilak Nagar, U/S 394/397 IPC. Page No.8/28
Sessions Case No.56866/2016
he recorded supplementary
statements of complainant.
On 30.12.204, he sent parcels of
the exhibits to FSL, Rohini,
Delhi through Ct. Hemraj vide
RC no. 145/21/14; recorded
statement of Ct. Hemraj and
MHC (M) and collected PCR
form.
5. On conclusion of the prosecution evidence, the statement under Section 313 Cr.P.C. of the accused was recorded on 28.05.2018 wherein all the incriminating evidence and documents on record were put to him to which his stand was of general denial. He claimed that he is innocent and has been falsely implicated in this case.
6. In his defence, the accused examined DW1 Sh. Harmider Singh who deposed regarding the strained relations between accused and his wife as well as illicit relations between complainant and wife of accused.
7. I have heard Ld. Addl. PP for the State and counsel for the accused and carefully perused the record in the light of submissions made before me.
FIR No.1327/2014State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.9/28 Sessions Case No.56866/2016
8. It is argued on behalf of State that the prosecution has successfully proved its case against the accused, so, he be convicted.
On the other hand, the defence counsel has urged that the accused is innocent and has been falsely implicated in this case. He has argued that no recovery of the mobile phone has been effected from the accused, there are material contradictions in testimony of the complainant and PW3 Kuldeep Singh which make the case of the prosecution doubtful. He has contended that no reliance can also be placed on the testimony of PW3 Kuldeep Singh as he is an interested witness being the bus conductor/friend of the complainant. It is argued that the prosecution has miserably failed to prove its case beyond reasonable doubt; all the circumstances connecting the case are highly doubtful and the accused is entitled to the benefit of doubt. On the above submissions, acquittal of the accused has been sought. Written arguments were also filed by the defence counsel in support of his contention.
9. I have carefully examined the evidence, oral and documentary and considered the rival contention on behalf of both sides.
10. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.10/28 Sessions Case No.56866/2016 of the offence with which the accused are charged with. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused persons become entitled to the benefit of doubt ultimately leading to their acquittal. Emphasis can be supplied upon a case titled Sadhu Singh Vs. State of Punjab ( 1987 (3) Crimes 55 ).
11. In the present case, the accused has been charged for the commission of offence punishable under Sections 392/397 IPC. At this stage, it is relevent to reproduce the relevant provisions i.e. Sections 392 and 397 IPC as under:
Section 392: Punishment for robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunsent and sunrise, the imprisonment may be extended to fourteen years.
12. The essential ingedients of Section 392 IPC are as follows:
(i) accused committed theft as defined in Section 378 IPC and in the process;
(ii) accused caused or attempted to cause to some persons
(a) death, hurt or wrongful restraint;
(b) fear of death of instant hurt or instant wrongful resraint;
(iii) accused did either act FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.11/28 Sessions Case No.56866/2016
(a) in committing such theft, or
(b) in order to commit theft, or
(c) in carrying away or attempting to carry away the property obtained by such theft - Venue Vs. State (2008) 3 SCC 94:
AIR 2008 SC 1199 is relied upon.
(iv) Accused acted voluntarily.
13. Section 397 IPC prescribes punishment or robbery, or daicoity with attempt to cause death or grievous hurt which is reproduced as under: Section 397: Robbery, or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
14. An act would only fall within the mischief of Section 397 IPC if at the time of committing robbery or daicoity, the offender
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person;
(c) attempts to cause death or grievous hurt to any person; (relied Shravan Dashrath Datrange vs. State of Maharastra, (1997) 2 Crimes 47 (Bom.); or
(d) 'Offender' refers to only culprit who actually used deadly weapon.
FIR No.1327/2014State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.12/28 Sessions Case No.56866/2016
15. What is essential to satisfy the word "uses" for the purpose of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, putting, as the case may be. (Asfaq v. State (Govt. of Nct. of Delhi), AIR 2004 SC 1253. There can be no quarrel that knife is a deadly weapon within the meaning of Section 397 IPC (State of Maharastra v. Vinayak Tukaram Utekar, (1997) 2 Crimes 615 (Bom.)
16. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. As observed in Kuna @ Sanjaya Behera v. State of Odisha reported 2017 SCC Online Supreme Court 1336, the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important.
17. The Apex Court in Veer Singh & Ors. Versus State of UP FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.13/28 Sessions Case No.56866/2016 reported in (2014) 2 SCC 455, has observed that :
"17. Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. (Vide: Vadivelu Thevar and Anr. State of Madras : AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu : AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal : AIR 2010 SC 3638; Mahesh and Anr. v. State of Madhya Pradesh : (2011) 9 SCC 626; Prithipal Singh and Ors. v. State of Punjab and Anr. : (2012) 1 SCC 10; Kishan Chand v. State of Haryana : JT 2013 (1) SC 222 and Gulam Sarbar v. State of Bihar (Now Jharkhand) : 2013 (12) SCALE 504).
18. As regards the prosecution witnesses, PW2 H.Ct. Anita, PW6 Ravinder Kumar (Driver Keshopur DTC Depot), PW8 SI Kalyan Singh, PW9 H.Ct. Sanjeev and PW12 SI Rampal are the formal witnesses who participated in investigation.
PW2 H. Ct. Anita recorded the DD No.20A on 07.11.2014 Ex.PW2/A, registered FIR Ex.PW2/B, made endorsement on rukka Ex.PW2/C and issued certificate under Section 65B of Indian Evidence Act Ex.PW2/D. PW6 Ravinder Kumar proved the duty memo of PW1 complainant Azad Singh Ex.PW6/A and Ex.PW6/B. PW8 SI Kalyan Singh prepared the scene of crime report Ex.PW8/A. PW9 H.Ct. Sanjeev taken FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.14/28 Sessions Case No.56866/2016 the photographs of the bus and the mat on which the blood was lying vide Ex.PW9/A1 to Ex.PW9/A5 and negatives of the photographs as Ex.PW9/B1 to Ex.PW9/B5.
19. The investigation in the present case began with the information received by PCR call. PW10 SI Ashok Kumar upon receipt of information from the DO visited the spot alongwith PW7 Ct. Lokender where they came to know that injured has already been shifted to the Park Hospital and then visited the said hospital. PW10 SI Ashok Kumar recorded the statement Ex.PW1/A of PW1 Azad Singh, made endorsement on it and handed over the same to Ct. Lokender/PW7. After registration of FIR, Ct. Lokender came back at the spot and handed over the copy of FIR and original rukka to PW10 SI Ashok Kumar for investigation. IO also seized the shirt of injured Azad Singh vide memo Ex.PW1/B. Thereafter, PW10, PW7 and PW1 came outside the hospital where IO cut the piece of mat of bus having blood stains and seized the same vide memo Ex.PW1/C. On 08.11.2014, on receipt of secret information about the accused, PW10 and PW11 Ct. Babu Lal visited House No.A254, J. J. Colony, Chaukhandi Delhi where accused met them and they took him to PS. Complainant PW1 and his conductor PW3 Sh. Kuldeep Singh also reached the PS and they identified the accused as assailant of this case. PW10 IO arrested the accused vide arrest memo Ex.PW1/D, his personal search was conducted FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.15/28 Sessions Case No.56866/2016 vide memo Ex.PW10/D and his disclosure statement was recorded vide memo Ex.PW10/C. Accused also got recovered the weapon of offence i.e. knife and IO prepared the sketch of the same vide memo Ex.PW10/E and seized the same vide memo Ex.PW10/F. Thereafter, accused was got medically examined from DDU Hospital.
20. PW4 Dr. P. D. Gupta, examined injured Azad Singh on 07.11.2014 vide MLC No.068 (Ex.PW4/A) and deposed that patient had sustained two injuries (incised wounds) on his neck and both injuries were sharp in nature. During crossexamination the witness denied the suggestion that the injuries mentioned in the MLC can be self inflicted injury.
PW5 Dr. B. N. Mishra, Sr. Medical Officer cum Medico Legal Expert, Department of Forensic Medicine, DDU Hospital gave opinion regarding the offence of weapon in respect of MLC No.068/14 dated 17.11.2014 regarding consistency of weapon of offence with injury sustained on the body of injured. The witness opined that the injury sustained on the body part of injured could have been inflicted by the weapon of offence i.e. knife vide his report Ex.PW5/A. The witness proved the sketch of knife Ex.PW5/B. The testimony of the witness remained unimpeached.
PW12 SI Rampal obtained the subsequent opinion from PW5 FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.16/28 Sessions Case No.56866/2016 Dr. B. N. Mishra and handed over the same to the IO, collected attested photocopy of the Duty Roster and Driver memo of injured/complainant Ex.PW6/A and Ex.PW6/B from Incharge, Keshopur DTC Bus Depot; collected photocopy of Icard of Azad Singh/PW1 and seized the same vide memo Ex.PW12/A; took the injured to DDU Hospital and got collected his blood sample; seized the bill of mobile phone of Azad Singh/PW1 vide memo Ex.PW1/E and sent the parcel to FSL Rohini.
21. PW1 Azad Singh is the injured and on the basis of his statement (Ex.PW1/A), FIR Ex.PW2/B has been registered. Other witness PW3 Kulbir Singh is the conductor of the bus who has been examined as an eye witness of the incident. The testimony of injured witnesses holds special significance. In 'Jodhan vs. State of M.P.', Crl. Appeal No. 1683 of 2010 decided on 08.04.2015, Hon'ble Supreme Court of India held as under:
"22. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him as an inbuiltguarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned Counsel for the Appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."FIR No.1327/2014
State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.17/28 Sessions Case No.56866/2016
22. In 'Vijay & Anr. vs. State', Crl. A. No. 83/2000' decided on 15.09.2015, Hon'ble High Court of Delhi observed as under:
"59.....It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an inbuilt assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else [Inder Singh & Ors. V. State of Rajasthan 2015 (2) SCC (Cri.) 215, Abdul Sayeed Vs. State of MP 2010 (10) SCC 259 and Sheesh Ram (supra)]."
23. In view of the settled law, I shall now examine whether the evidence of PW1 examined by the prosecution has a ring of truth, is cogent, credible and trustworthy or otherwise alongwith other witnesses examined by the prosecution to prove the case.
24. The PW1 Azad Singh/complainant/injured deposed that "On 07.11.2014, I was on duty at Bus Route No.410, plying between J.J. Colony Khyala to Jal Vihar Terminal bearing registration No.DL1P7230. When I reached at Chand Nagar, Bus Stand Delhi, one Sikh boarded the bus from front gate and came to me and gave two knife blows on my neck and he removed mobile phone from my front pocket of the shirt. In the mean time, conductor of the bus namely Kuldeep Singh came there and he saved me from the accused and thereafter, that Sikh boy left from there. Conductor called the police on 100 number. Thereafter, I took my bus to nearby Park Hospital alongwith conductor and some passenger where I was got admitted. I got treatment from there and after sometime, IO of the case came there and met me and recorded my statement which is Ex.PW1/A. The make of my mobile phone was Micromax having sim no.8750982425. I had seen the accused who had given me knife blows and can identify that Sikh man. Accused is today present in the court. (Correctly identified).
The witness also deposed that his blood stained shirt and mat of the bus were seized vide seizure memo Ex.PW1/B and Ex.PW1/C respectively FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.18/28 Sessions Case No.56866/2016 which bears his signatures. He also deposed regarding the arrest memo of accused Ex.PW1/D, bill of the mobile phone seized vide seizure memo Ex.PW1/E and bill Ex.PW1/A. The witness has also identified the weapon of offence i.e. knife Ex.P1, his shirt having blood stains Ex.P2 and plastic mat Ex.P3".
25. The witness was crossexamined at length but during cross examination, he deposed regarding the facts of the case. Infact, there is nothing in the crossexamination of this witness which goes against the prosecution case. His testimony was corroborated by the eye witness of the incident PW3 Kuldeep Singh, who was the conductor of the said bus. The said witness deposed as under: "I am a conductor on DTC bus and posted at Keshopur Depot. On 07.11.14, I was on duty of DTC bus route no.410, Khyala to Jal Vihar. On that day at about 12.45 PM our DTC bus reached at Chand Nagar, Tilak Nagar, Bus Stand. Azad Singh was the driver on the bus. The passengers got down at Chand Nagar, Tilak Nagar bus stand. In the mean time I heard loud voice of driver "meri kya galti ho gayi". At that time I was on back side of bus and on hearing the same I immediately came near the driver Azad Singh, who was sitting on the driver seat of bus. I saw one Sikh person was having knife in his one hand and by his other hand he caught hold the shirt of driver Azad Singh near the pocket of shirt. I also saw that the driver having the injuries on his neck and blood was oozing out from the injuries. The knife which was in the hand of accused was also having blood stains. I asked the accused "kya galti ho gayi mai maafi mang leta hun". On this accused also threatened me by stating "door ho ja mere paas koi nahi aayenga". Accused were trying to taking out the mobile phone of driver Azad Singh from his pocket but Azad Singh was holding the shirt near the pocket to stop the accused from removing his FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.19/28 Sessions Case No.56866/2016 mobile. I with the help of other passengers raised alarm. I called the police on 100 No. Accused ran away from there while having the knife in his hand. Driver told us that accused has removed his mobile. Driver was having two injuries of knife on his neck. We took the injured and bus to Park Hospital which was near the spot and I got admitted injured Azad Singh in the hospital. IO of this case came in the hospital and recorded the statement of driver and got lodged the FIR. IO took me at the spot on his motorcycle and he inspected the spot at my instance and prepared site plan. Thereafter my statement was recorded by the IO".
26. PW3 Kuldeep Singh in material particulars corroborated the testimony of PW1. The witness during crossexamination deposed that the incident occurred at Chand Nagar Bus Stand; after running the accused from the spot he immediately took the driver to nearby hospital. He deposed that he had not seen the accused causing injury to Azad Singh and removing the mobile phone from the pocket of driver Azad Singh but deposed that he had seen the accused while holding the pocket of driver Azad Singh where his mobile was lying and having blood stained knife in his hand on the same moment. There is no major contradiction in the testimony of the material witnesses i.e. PW1 and PW3 at all and their testimony appears to be reliable and trustworthy.
27. Another plea is taken by learned counsel for the accused that there is inconsistency and contradiction in the testimony of PW1 Sh. Azad Singh and PW3 Sh. Kuldeep Singh which makes them unreliable FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.20/28 Sessions Case No.56866/2016 witnesses. It is trite that contradictions in matters of detail cannot be a ground to disbelieve the witness once his testimony stands corroborated in material particulars. In Bhogin Bhai Birji Bhai v. State of Gujrat AIR 1983 SC 753, it has been held by the Supreme Court that by and large a witness can not be expected to possess a photographic memory and to recall a details of an incident. It is not as if a video tape is replayed on the mental screen.
28. It has been held by Supreme Court in Mritunjay Vishwas v. Pranab @ Kuti Vishwas & Anr. (2013) 12 SCC 796 and Madhu @ Madhuranatha & Anr. v. State of Karnataka AIR 2014 SC 394 as under "it is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring or truth. The court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basis version of the prosecution witness."
29. On the aspect of contradictions in the deposition of witnesses, the Hon'ble Supreme Court in recent decision of Balvir Singh vs. State of Madhya Pradesh, Crl. Appeal No.1115/2010 decided on 19.02.2019, emphasized that minor discrepancies in the evidence of the eyewitnesses do not shake their trustworthiness. The aforesaid view is a reinforcement of FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.21/28 Sessions Case No.56866/2016 the legal proposition laid down in Appabhai and Another v. State of Gujarat reported as 1988 Supp SCC 241, where it was held as under: "13. .... The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. ...." (emphasis added) To the same effect are the decisions in Rammi alias Rameshwar v. State of M.P. (1999) 8 SCC 649 and Annareddy Sambasiva Reddy and Others v. State of Andhra Pradesh (2009) 12 SCC 546.
30. The minor discrepancies pointed out by learned counsel for the accused regarding the stoping of the bus, snatching of mobile phone from the complainant, causing of injury by the accused etc. primarily can not be considered enough to shake their credibility nor the minor contradictions in the statement of PW1 Azad Singh and PW3 Kuldeep Singh as argued by Ld. counsel for the accused is so material as to dilute the entire prosecution case. Had there been perfect consistency in FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.22/28 Sessions Case No.56866/2016 their testimony, perhaps the court could have been inclined to assume that it was a result of consulted tutoring. But that is not the case here and the discrepancy is not so critical as to shake the prosecution case. In view of the above referred law, the testimony of PW1 and PW3 appears to be reliable and trustworthy.
31. Ld. counsel for the accused read the testimony of the witnesses i.e. PW1 Azad Singh and PW3 Kuldeep Singh regarding the presence of public persons at the spot and submitted that no public witness was joined in the investigation or recovery proceedings. In the present case, the recovery of knife was effected at the instance of accused from his house in the presence of PW11 Ct. Babu Lal. The said knife has been identified by the PW1 Azad Singh as Ex.P1. PW3 Kuldeep Singh also identified the knife Ex.P1. The testimony of the recovery witness PW11 Ct. Babu Lal remained unimpeached and uncontroverted and there appears to be no reason to disbelieve the same.
32. It is argued by Ld. counsel for the accused that the testimony of the police witnesses without any corroboration from public witnesses have no value. Such arguments have no merit at all. Reference in this regard is made to Ajmer Singh v. State of Haryana reported as (2010) 3 SCC 746, wherein Hon'ble Supreme Court has observed as under:
FIR No.1327/2014State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.23/28 Sessions Case No.56866/2016 "20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. It after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." (emphasis added).
33. To the same effect is the decision of the Supreme Court in Pramod Kumar v. State (GNCT) of Delhi reported as (2013) 6 SCC 588 wherein it was held as under:
"12 ............ The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachably of their testimony.
13. This Court, after referring to State of U.P. v. Anil Singh 1989 SCC (Crl.) 48; State, Govt of NCT of Delhi v. Sunil (2001) 1 SCC 652 and Ramjee Rai v. State of Bihar (2006) 13 SCC 229, has laid down recently in Kashmiri Lal v. State of Haryana (2013) 6 SCC that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weigh over the quantity of evidence.
14. Thus, the submission that the whole case should be thrown overboard because of non examination of independent witness and reliance on the officials witnesses can not be accepted......." (emphases added).FIR No.1327/2014
State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.24/28 Sessions Case No.56866/2016
34. From the perusal of the testimony of the witnesses examined by the prosecution, it emerged that there was attack by the accused namely Gurbhej Singh upon injured PW1 Azad Singh and he snatched his mobile phone and also inflicted injury on the person of PW1 Azad Singh. As deposed by PW4 Dr. P. D. Gupta, the injured Azad Singh (PW1) had sustained two injuries i.e. incised wounds on his neck and both the injuries were sharp in nature. The said opinion also connects with the knife recovered from the accused with the complainant's injury. There is no doubt about the recovery of the weapon of offence i.e. knife from the accused which was recovered at his instance and the same is admissible under Section 27 of the Indian Evidence Act. The recovery of weapon of offence has been fully established by the prosecution. In view of the above discussion, it stands proved on record that the accused has inflicted injury on the person of complainant/PW1 Azad Singh armed with knife.
35. In the present case, the entire prosecution story is based upon the testimony of the injured PW1 Azad Singh and eye witness PW3 Kuldeep Singh who identified the accused and also proved the incident which had taken place. Complainant/PW1 Azad Singh has categorically deposed regarding the incident, identified the accused in the court as the one who had committed robbery upon him on the point of knife; he had correctly identified the knife Ex.P1. The mobile phone could not be FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.25/28 Sessions Case No.56866/2016 recovered. Accused disclosed in his disclosure statement Ex.PW10/C that the said mobile phone was thrown in the bus itself while he was leaving the bus. Mere fact that there was no recovery of the robbed article from the accused would not itself is sufficient to give clean chit to the accused because the recovery is not effected in every case and the court has to consider the totality of the circumstances to arrive at some conclusion. The testimony of PW1 Azad Singh which corroborated by PW3 Kuldeep Singh who deposed in detail regarding the mode and manner of the commission of offence by the accused. As noted the testimony of both the witnesses remained intact on all material points. There are no major discrepancies in their testimony. They were subjected to lengthy cross examination by Ld. counsel for accused but he was not able to impeach the credibility of the said witnesses or to shake the veracity of their statement.
36. Accused has taken the defence in his statement under Section 313 Cr.P.C. that he is innocent and has been falsely implicated in this case. Although the accused taken the defence of false implication, he has not given any reason at all for his false implication in this case. No previous animosity with the complainant is pointed out by the accused. There is no reason why he would be falsely implicated by the police. It is not his case either that the police officials had any grudge against him. It is reiterated that the testimony of both the witnesses i.e. PW1 Azad Singh and PW3 FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.26/28 Sessions Case No.56866/2016 Kuldeep Singh is truthful and trustworthy and the accused has failed to prove his defence.
37. In the case of Sharad Birdhi Chand Shrda vs. State of Maharashtra reported in AIR 1984 SC 1622, the Apex Court has laid down the case text which are prerequisite before conviction should be recorded which are as under:
"The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances occurred 'must or should' and not 'may be' established;
the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, there should not be explainable on any other hypothesis expect that the accused is guilty;
the circumstances should be of conclusive nature and tendency;
they should exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
38. From the evidence on record, it is duly proved that on 07.11.2014 at 12:45 pm, the accused robbed the complainant of his mobile phone on the point of knife and caused injury i.e. two incised wounds on the neck of complainant/PW1 in view of MLC Ex.PW4/A. The FIR No.1327/2014 State v. Gurbhej Singh PS Tilak Nagar, U/S 394/397 IPC. Page No.27/28 Sessions Case No.56866/2016 prosecution has proved the identity of the accused, manner in which the offence has been committed, place of commission of offence, the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimony of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesss is natural and trustworthy and the witnesses of the prosecution have been able to built up a continous link.
39. In my above discussion, I hereby hold that in so far as the charges under Section 392/397 IPC against accused Gurbhej Singh are concerned, the same stand established and proved and hence, the accused, is hereby held guility for the offence under Sections 392/397 IPC.
40. Let he be heard on the point of sentence on 23.09.2019.
Gorakh Digitally signed by
Gorakh Nath Pandey
Nath Date: 2019.09.12
Pandey 16:29:14 +0530
Announced in the open court (Gorakh Nath Pandey)
on 07.09.2019 Addl. Sessions JudgeFTC, (West)
Tis Hazari Courts, Delhi.
FIR No.1327/2014
State v. Gurbhej Singh
PS Tilak Nagar, U/S 394/397 IPC. Page No.28/28