Delhi District Court
State vs 1. Pradeep Kumar Pal on 17 January, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 393 of 2017
State Versus 1. Pradeep Kumar Pal
S/o Sh. Babu Ram Pal
R/o E119/86, Ravi Dass Camp
PartII, I.P. Extn., Mandawali,
Delhi.
2. Bablu Giri
S/o Sh. Mahesh Giri
R/o F28, Ber Sarai, Vasant Vihar
South, Delhi.
3. Johny
S/o Sh. Shamsher
R/o 17/441, Block17, Kalyanpuri,
Delhi.
FIR No. : 16/2017
Under Section : 393/394/397/411/34 IPC
Police Station : Preet Vihar
Chargesheet Filed On : 13.04.2007
Chargesheet Allocated On : 08.06.2017
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 14.01.2019
Judgment Announced On : 17.01.2019
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JUDGMENT
1. The facts germain from the story of the prosecution case are that on 16.01.2017 on receipt of DD no. 15A, ASI Ramesh Lal, Investigating officer alongwith Ct. Sumit went to Dr. Hedgewar Hospital where injured Sahil Rai was found admitted who was brought by his brother Tushar Rai and someone. IO collected his MLC no.185/17. From there, injured was referred to GTB Hospital.
2. IO recorded statement of Tushar Rai wherein he stated that on 16.01.2017 at about 6.00 am, he alongwith his brother Sahil Rai was going for work from their house and both of them were present at Saket Block Mandawali on foot and were crossing railway Track of Mandawali Chander Vihar Railway Station for going towards Nirman Vihar, Preet Vihar side. When they reached at about 4/5 feet distance at about 6.15 a.m., two boys came out from the bushes and caught hold both of them and asked to handover all their belongings to them. When they resisted, one of the boy caught hold his brother and another had given knife blow on his stomach due to which, Sahil Rai fell down on the ground and he took out his purse. Thereafter, one of the boy caught hold of him and another had kept knife on his neck and took out his mobile phone make Intex and purse of brownish cream colour containing cash of Rs.800/, his voter I card and PNB ATM card. Thereafter, he with the help of someone, took his brother to Dr. SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 2 of 30 Hedgewar hospital for medical treatment.
3. On the basis of statement of complainant, a case u/s 394/411/34 IPC was registered. The accused persons namely Pradeep Kumar Pal, Bablu Giri and Johny were interrogated and arrested and the alleged case properties were recovered. After conclusion of the investigation, chargesheet was filed against all the accused persons before the court of Ld. MM for the offences punishable under Sections 394/397/411/34 IPC.
4. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Section 397 IPC is exclusively triable by it.
5. Vide order dated 09.06.2017, passed by Ld. Predecessor, charge under Section 392/394/397/34 IPC was framed against all accused persons. Vide said order, separate charge under Section 411/34 IPC was also framed against accused Pradeep Kumar Pal and Bablu Giri. To the said charges, all accused pleaded not guilty and claimed trial.
6. The Prosecution in support of its case examined seven witnesses in all.
PW1 ASI Shishpal was the duty officer in police station Preet Vihar and has proved the FIR Ex.PW1/A, rukka Ex.PW1/B and Certificate u/s 65B of Indian Evidence Act Ex.PW1/C. PW2 Sahil Rai is the complainant/injured in the present case who stated that on 16.01.2017 at about 6.006.15 am, he alongwith his brother Tushar Rai were going to Nirman Vihar on foot from Mandawali, SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 3 of 30 Saket Block. When they crossed the railway track, they saw that two boys were coming from their front side and they caught hold them. They snatched their purse, cash and mobile phones. When they resisted and objected to their act, one of them gave knife blow on his stomach due to which blood started oozing out and he fell down on the road. Other boy kept knife on the neck of his brother Tushar Rai. After robbing them, both of the boys went away from there for calling their two other associates. Thereafter, all four boys started pelting stones lying near railway track towards them (victim). Both of them (victims) escaped from there and they cried for help. One of the public person came forward and took injured to Dr. Hedgewar Hospital on his Activa Scooty and his brother Tushar Rai hold him from behind on the scooty and from where he was referred to GTB Hospital. Police met him there and recorded his statement. This witness was also cross examined by Ld. Addl. P.P. on some facts. He has correctly identified accused Johny and Bablu Giri in the court. He has also identified his mobile phone which was snatched by the accused persons.
PW3 Tushar Rai is the eye witness/brother of victim Sahil Rai who accompanied with him on the date of incident and both of them were robbed by the accused persons. He also stated as per the line of PW1 Sahil Rai. He has also correctly identified accused Johny and Bablu Giri in the court.
SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 4 of 30 PW4 Ct. Sumit has got registered the FIR in the police station on the basis of the rukka given to him by ASI Ramesh Lal. He has also proved the site plan Ex.PW4/A. PW5 Ct. Kapil Kumar is the witness of arrest, personal search and disclosure statements of accused Pradeep Kumar Pal, Bablu Giri and Johny as well as recovery of mobile phone Ex.PW5/G and its seizure memo Ex.PW5/G1, seizure memos of two other mobile phones Ex.PW5/N and supplementary statements of accused Bablu Giri and Pradeep Kumar Pal vide Ex.PW5/O and PW5/P. PW6 SI Ramesh Lal is the investigating officer of present case and conducted the entire proceedings of the present case. He also proved the memos prepared in this case.
PW7 Dr. Shishir Vishwakarma, CMO of Dr. Hedgewar Hospital has proved MLC of injured Sahil Rai vide Ex.PW7/A. He stated that the patient was referred to EMO (Surgery) for further management.
7. During investigation, all the accused persons vide their joint statement u/s 294 CrPC have admitted the TIP proceedings conducted by Sh. R.K. Singh, ld. M.M. a Ex.C1 and statement of Sh. Deep Kumar Tiwari as Ex.C2 and CDR in respect of mobile no. 9540317234 as Ex. C3.
8. It is pertinent to mention here that PW Ct. Rajbir Tomar (mentioned at serial no. 12 in the list of witnesses) was dropped vide order dated 20.08.2018 on the request/statement of Ld. Addl. P.P. for the State SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 5 of 30 recorded on 20.08.2018 being in repetitive nature as of PW5 Ct. Kapil, who has already been examined on the same facts.
9. The statements of all accused persons were recorded separately under Section 313 CrPC in which they denied all the incriminating evidence against them. They pleaded their innocence and further pleaded their false implication. Accused Pradeep Kumar Pal has taken the plea that no such recovery was effected from him or at his instance at any point of time. He stated that his photographs were snapped by police before TIP and were shown to the witnesses who identified him during TIP at the instance of police. Police demanded money from him to get the TIP fail but they could not pay the said amount and witnesses identified him at the asking of police. Accused Bablu Giri has also taken the plea that on 26.02.2017 at about 8.30 pm, he was lifted from his workplace i.e. shop of Surender Kumar Gupta situated at Ravidas Camp, Mother Dairy, Patparganj, Delhi and was detained in the police station and beaten by police. He also stated that his photographs were snapped by police before TIP and were shown to the witnesses who identified him during TIP at the instance of police. Accused Johny also stated that he was lifted from his house and then implicated falsely in this case for the reasons best known to the police. All accused persons want to lead evidence in their defence.
10. In his defence, accused Bablu Giri examined Smt. Sharda Gupta, wife of his owner Surender Gupta as DW2 who stated that her husband Sh. Surender Gupta could not come as he is undergoing Chemo SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 6 of 30 therapy as suffering from cancer and is not able to speak. She used to run the said shop alongwith her husband from 8.00 pm to 9.00 am for last five years. She stated that accused Bablu Giri was working in her abovesaid puncture shop for last five years. Accused Bablu Giri was taken by the police at around 8.30 pm on 26.02.2017 from her shop, in her presence as well as in presence of her husband. When they inquired from the police why they were taking accused Bablu Giri, they told them that they were taking Bablu Giri for inquiry and they will leave him after the same. When Bablu Giri did not come to their shop, next day they went to the Police Station Preet Vihar where they came to know that accused was sent to jail and he will be released through court only. She stated that Bablu Giri is falsely implicated in the present case by police.
11. Accused Johny, in his defence, examined his father/DW2 Shamsher who stated that on 01.03.2017 at 11.00 pm, he was present in his house and was taking meals and his son Johny was sleeping. The police official came to his house and took Johny alongwith them and on inquiry, they informed that they were taking his son for inquiry and they will release him thereafter. When Johny did not come back to home, he went to Police Station Preet Vihar on the next day he alongwith his wife where they came to know that Johny was sent to jail and he will be released through court order only. He stated that his son Johny is falsely implicated in the present case by police.
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12. Accused Pradeep Kumar Pal examined his elder brother Mahendra Pal as DW3 who stated that accused Pradeep Kumar Pal is living with him and used to run a Theli of Tea and Eggs near Ganesh Nagar Chowk, Delhi between 5.00 pm to 10.00 pm. After coming from his work, he used to stay at home till 1.00 pm next day. Thereafter, he went to purchase material for selling Tea and Eggs from Kalyanpuri at about 3.00 3.30 pm and then after preparing his theli, he went to Ganesh Nagar Chowk at around 5.00 pm which is at a distance of around five minutes. On 16.01.2017, Pradeep Kumar Pal was at home in the whole night and remained present there next day till 3.30 pm and then went to purchase the material for his theli. On 26.02.2017, when his brother has not returned to home upto 11.00 pm, then he went to his theli where he came to know from some other persons that police had taken his brother Pradeep Kumar Pal at about 8.30 pm. When he went to Police Station Preet Vihar, police officials threatened me to leave the police station otherwise they will also arrest him in some false case. His brother Pradeep Kumar Pal is falsely implicated in the present case by police.
13. Ld. Addl. P.P. for the State argued that prosecution has been able to prove the charges through evidence of witnesses and recovery effected. He argued that there is no reason to disbelieve the testimony of the injured/PW2 Sahil Rai and eye witness/PW3 Tushar Rai, which are cogent and credible and are sufficiently corroborated by medical evidence. He SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 8 of 30 argued that accused persons failed to give any reasonable account for their false implication. Ld. Addl. P.P., therefore, prayed for conviction, as per law. He submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of the accused persons stands fully established.
14. Ld. Counsel for accused Bablu Giri and Johny argued that mobile phone recovered from accused Bablu Giri was not sealed by the IO as admitted in cross examination and no public witness had joined the arrest and seizure memo of the mobile. DW1 Smt. Sharda Gupta deposed regarding the arrest of accused from her shop on 26.02.2017 at 8.30 pm which shows the false implication of accused in the present case. He argued that in the cross examination of PW2 Sahil Rai, he has improved his statement before the court and cannot be relied. PW2 was also cross examined by Ld. Addl. P.P. as he has not disclosed all the facts. He further argued that PW3 Tushar Rai stated that after the arrest of accused persons and before the TIP, photographs of accused persons were sent on the mobile and then accused Bablu Giri and Johny were identified in the TIP. No public persons were joined from the locality while arrest, disclosure or alleged recovery from accused Bablu Giri and Johny and as such their false implication in the present case cannot be ruled out. PW3 Tushar Rai was made as a witness being brother of injured Sahil Rai and his presence at the time of alleged incident on 16.01.2017 is not reliable. The person who shifted the injured to the hospital on his Activa two wheeler scooter has not SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 9 of 30 been made as a witness in the present case and therefore, involvement of abovesaid accused persons is not established and proved beyond all reasonable doubts and as such they are likely to be acquitted as the prosecution has miserably failed to prove its case beyond all reasonable doubt.
15. Ld. Counsel for accused Pradeep Kumar Pal argued that PW2 Sahil Rai in his examinationinchief has not stated the manner initially the name of accused persons who gave knife blow to him but during cross examination by Ld. Addl. P.P., he has stated that accused Johny gave him knife blow in his stomach on the day of incident and also stated that accused Bablu Giri was also having knife and he put it on the neck of his brother Tushar Rai. In cross examination, this witness failed to disclose the name of the person who helped him and his brother to shift him to the hospital on his scooty on the day of incident and also failed to disclose the registration number of said scooty. PW2 Sahil Rai in his cross examination stated that he had not made any alarm at the time of incident despite the fact that the place of incident was just 1015 feet away from main road. From the spot, injured alongwith his brother reached at Chander Vihar Railway Station which was at a distance of about 2025 feet and asked for help from public persons as no police official or railway official was present there but PW3 Tushar Rai has not stated so in his statement and thus it is highly unbelievable that no police official or railway official was present at Chander Vihar Railway Crossing at about 6.30 am to 7.00 am.
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16. Ld. Counsel further submitted that PW2 Sahil Rai in his cross examination stated that he cannot tell that who made the call at 100 number and also stated that his brother Tushar Rai had also not called at 100 number, it is beyond the imagination that neither complainant or injured had given any intimation to the police regarding the incident, then how police came to know about the incident and recorded the daily dairy entry. The police has also not taken any steps to trace out the said person or his mobile number who dropped injured and his brother to the hospital as PW1 stated in his cross examination that PW2 gave intimation to their distant relatives at Laxmi Nagar through mobile phone of said person. PW1 in his cross examination stated that police recorded statement of his brother in Dr. Hedgewar Hospital in his presence while his brother Tushar Rai has stated in his statement that his statement was recorded by police in GTB Hospital. PW2 Sahil Rai stated that it was not rainy day on the day of incident while police has stated the reason for not collecting any blood stains from the spot due to rain. PW3 Tushar Rai has admitted in his cross examination that police officials had sent the photographs of accused persons on his mobile phone before TIP proceedings which is sufficient to raise question mark on the genuineness of TIP proceedings. PW2 has also stated that police had never seized his blood stained clothes. Though the PW3 stated that except his purse containing cash, voter ID Card and ATM cards with some documents, no other articles were handedover by him to said person hence, SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 11 of 30 snatching of mobile phone is highly doubtful. He also denied the suggestion that he identified the accused persons at the instance of Investigating Officer (IO) or on the basis of the images sent by the police. PW4 Ct. Sumit in his cross examination stated that IO found one CCTV installed near underpass and checked the said CCTV footage but he failed to disclose the name and address of the shop where said CCTV camera was installed.
17. Ld. counsel further argued that PW6 SI Ramesh Lal, investigating officer stated in his chief examination that he prepared the site plan Ex.PW1/A on the pointing out of PW3 Tushar Rai and thereafter, he made search in nearby bushes to recover the weapon of offence or bullet but in vain despite the fact that no bullet or firearm was stated to be used by the accused persons in the said incident, as per the statement of complainant/PW2 Sahil Rai. PW6 SI Ramesh Lal stated in his cross examination that he has not mentioned the position of victims and the assailants in the site plan Ex.PW4/A as the same has not been disclosed by the complainant because it was dark at that time while as per statement of PW2 Sahil Rai, it was not dark at the time of incident. This witness also failed to disclose the name and address of the person to whom information regarding arrest of accused Pradeep Kr. Pal was given but he stated that it was given to one of his family members. IO stated that disclosures statement of accused persons were recorded at the spot itself while the disclosure statement of accused Pradeep Kr. Pal available was recorded having his signature after typing said document and not a handwritten SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 12 of 30 document which raised a question mark about his arrest. PW6 SI Ramesh Lal has also not disclosed the position of accused persons or position of police party at the time of arrest of accused Pradeep Kr. Pal which raised a question mark about the genuineness of the site plan. This witness has denied the suggestion that after arrest of the accused persons, their photographs were taken in the mobile and same were sent to the complainant and victim before TIP is to be conducted. PW3 Tushar Rai also admitted in his cross examination that the photographs of the accused persons were sent to him on his mobile by the police after their arrest which also raised doubt the genuineness of the prosecution story. This witness has admitted in his cross examination that no recovery was effected from the possession of accused Pradeep Kr. Pal. Ld. Counsels for the accused persons submitted that from the evidence and material on record, the prosecution has failed to proved its case beyond all reasonable doubt against the accused persons and thus prayed for their acquittal.
18. I have carefully gone through the entire material on record and have considered the rival submissions/written arguments of the parties in the light of the law laid down in the judgments relied upon.
19. Accused persons are facing trial for the charges u/s 392/394/397/34 IPC as well as accused Pradeep Kumar Pal and Bablu Giri u/s 411/34 IPC whereas it is alleged that on 16.01.2017 at about 6.15 am all above named accused persons have robbed the purse of victim Sahil Rai and mobile phone of victim Tushar Rai and also caused injuries to Sahil Rai with SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 13 of 30 knife and used the ssaid knife for committing the crime and intimidated by putting knife on the neck of Tushar Rai. Said purse and mobile phone have been recovered on 01.03.2017 from the possession of accused Pradeep Kr. Pal and Bablu Giri. PW2 Sahil Rai and PW3 Tushar Rai in their examination in chief have narrated the factum of incident and the injuries as well as the allegations thereto as per chargesheet in verbatim though, they have been cross examined at length by ld. defence counsels and during the course of submission, ld. defence counsels have contended that the statement of both witnesses are not corroborate the factum of incident and made several contradictions in their deposition with regard to the message flashed to the police officials through DD No. 15A Ex.PW1/C. It has also been contended that the place of incident is a thorough fare but no public person have joined the investigation except the victims. It is also alleged that while conducting the TIP, photographs of the accused persons have already been flashed on the mobile phone of one of the victim. Though, ld. defence counsel must be aware that the accused persons have already admitted the TIP proceedings as Ex.C1 u/s 294 CrPC vide their statement dated 18.07.2018. Even otherwise, TIP of other suspects namely Babli @ Channi @ Bachhi was also conducted on 15.03.2017 alongwith the present accused persons being alleged their associate, victims have failed to identify him in the said TIP proceedings. Thereafter, he did not face the trial alongwith the accused persons. All the accused persons shown their interest to join the TIP proceedings and their TIP have been conducted in fair and lawful SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 14 of 30 manner. All the abandon precautions have been taken by ld. M.M. while conducting the TIP and there is no foul play found being committed by investigating officer or by the victim party in their support. Reliance is placed upon the judgment Heera Vs. State of Rajasthan, 2007 CrlJ 3514 (SC) wherein it has been observed that "it was alleged that the accused had attacked the petrol pump and looted cash. The complaint was filed by worker of petrol pump who had identified the dacoits and there was no infirmity in their recognition evidence. All requisite formalities with regard to the TIP was adopted and followed. Conviction of the accused was held proper".
20. One area of criminal jurisprudence susceptible to miscarriage of justice is error in identification. Court's approach to accept identification should be very cautious. The Court should approach the evidence of identification with the reasonable doubts of an intelligent person and accept it only if those doubts are removed. In order to remove these doubts, the touchstones to be adopted could be (i) fair, if not good opportunity of the witness for observation, (ii) reasonable time within which the identification was made; (iii) reliable power of observation of the witness, (iv) his credibility, and (v) the fact whether the witness got any opportunity to identify the accused after arrest. The crucial requirement is the satisfaction of the Court on the acceptability of the identification. If identification parade was not properly and regularly conducted, it cannot operate as reliable corroboration regarding identification in Court. It is true that identification SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 15 of 30 in judicial TIP is not the substantive piece of evidence however, it has a great value at the time of appreciation of the evidence of victim in the court.
21. The accused persons were armed with knife and caused fatal injuries to one of the victim and also intimidated while putting dagger on the neck of another victim at the time of committing robbery. This fact has been proved by the medical report. The TIP of the accused persons was held without any delay soon after their apprehension with the free consent of the accused persons and there is no foul play. As such, the accused persons cannot get the benefit that their photographs were flashed on the mobile phone of one of the victim. This contention is without any substance and based on surmises. Hence, the same has been declined.
22. Ld. defence counsels have also pointed out several infirmities and contradictions in the statement of public witnesses though, public witnesses were also cross examined by ld. Addl. P.P. on some material points, though they have corroborated their statements with the complaint Ex.PW3/A and also identified the articles as robbed by the accused persons. No doubt, there is some variations here and there in their crossexamination on behalf of accused persons however, the court has to see whether the said contradictions or variations will hamper the case of the prosecution in any manner or will go to the root of the case.
23. In case reported as Appabhai Vs. State of Gujrat, AIR 1988 SC 696, Hon'ble Apex Court observed "The discrepancies which do not shake the basic SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 16 of 30 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 the lapse of memory may be given due allowance."
24. In another celebrated authority reported as Nallabothu Venkaiah Vs. State of Andhra Pradesh 2002 VI AD (S.C.) 521 it was pleased to hold as under;
"It must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of Law."
25. Minor discrepancies in the statements of witnesses are of no help to the accused. In Siddiqua Vs. Narcotics Control Bureau (2007 Crl L.J. 1471 of Hon'ble High Court of Delhi) the Hon'ble High Court of SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 17 of 30 Delhi observed that minor discrepancies are very natural to occur in testimony of different witnesses and testimony of witnesses can not be rejected on the ground that there were minor discrepancies or contradictions.
The Hon'ble Delhi High Court in the said judgment observed as follows:
"A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses parrot like repeat the same statement, one after another, such statements would not be natural statements. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each person shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of witnesses can not be rejected on the ground that there were minor discrepancies or contradictions."
26. Hon'ble Delhi High Court has further observed as follows in the said judgment:
"The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. Learned counsel for the appellant can not lift one sentence from here and another sentence SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 18 of 30 from there and ask the Court that the case should depend upon that sentence in the testimony. It is only after considering the entire statement of a witness that the Court has come to a conclusion that the witness was credit worthy or not. The Court has to silt grain from the chaff. It is well recognised that minute details of incident, with the passage of time, go out of memory. In all such cases, the Court has to see whether the over all testimony of the was truthful and whether the incident, as claimed by the prosecution had happened or not. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. The prosecution agency is also a human agency and the Court should accept accuracy standards only to the extent which can be expected from a normal human being. The Court should not accept super human standards from the prosecution agency in all aspects. What the Court has to see is that the investigation has been done in a fair and proper manner and there is no false implication of the accused."
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27. In view of the aforesaid judgment and the contention raised by ld. defence counsel, PW2 Sahil Rai in his examination in chief has categorically stated that ".... Both of them tried to snatched our purse and cash. When we resisted and objected to their act, one of them gave me knife blow on my stomach. Blood oozed out from my stomach. Due to the injury sustained by me I fell on the road. By the other boy also put knife on the neck of my brother Tushar Rai. Both those boys robbed our purse containing cash and mobile. Thereafter, both those boys also searched all our pocket of our wearing clothes. In the meantime, two of their associates called them "kam ho gaya hai to aa jao". Thereafter, all the four started pelting stones lying near the railway track..."
28. In cross examination on behalf of accused persons, he denied the suggestion that no incident of snatching was ever occurred with him or that it was a quarrel between him and his friends as a result of which, he sustained injuries or that he has falsely implicated the accused persons at the instance of police or that he is deposing falsely.
29. Similarly, PW3 Tushar Rai also stated in his examination in chief on the same path as deposed by PW2 Sahil Rai stated and also denied the suggestions made by ld. defence counsel. Both the witnesses have been categorically identified the accused persons who have robbed and caused injuries on their person.
30. Another contention raised by ld. defence counsel is that police officials did not join the public witnesses in the entire course of investigation SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 20 of 30 carried out. The police officials did not cite the public witnesses as necessary for just and fair adjudication of their case though, they had asked the public persons to join the same but none came agreed. Though, it is a rule that if victims supported the case of the prosecution, not joining of public witnesses should not left any negative impact.
31. In a judgment reported as Bahadur Singh & Ors Vs State, IV AD (Delhi) 506 Hon'ble Court, observed as :
Para 14: As regards non association of the public witnesses at the time of the recovery, nothing has been shown that the evidence of police witnesses is unreliable and not trustworthy. There is no reason why they should falsely implicate the Appellants. As held in Karamjit Singh Vs State (Delhi Admn.) 2003 III AD (SC) 353 the presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. There is no principle of law that without corroboration by independent witnesses their testimony can not be relied upon.
32. In Ajmer Singh V. State of Haryana [(2010) 3 Supreme SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 21 of 30 Court Cases 746], the Hon'ble Supreme Court held as follows:
"We can not 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. If 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 the 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.".
33. The accused persons have also examined witnesses in their defence whereas, contended that they have been lifted from different places as mentioned in deposition of defence witnesses and alleged falsify the story of arrest made by the police officials but they had not been denied their presence together on 16.01.2017 at 6.15 am at railway crossing, Chander Vihar, Mandawali, within the jurisdiction of Police Station Preet Vihar. So far as the places of arrest have been agitated in their defence but they have been given ample opportunities during the course of trial. They did not SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 22 of 30 make any suggestion to the prosecution witnesses regarding their places of arrest not as places as alleged by the police but same have been deposed by the defence witnesses. Accused Bablu Giri examined Smt. Sharda Devi as DW1 who stated that she used to work in the puncture shop alongwith her husband from 8.00 pm to 9.00 am and she knew accused Babloo Giri who was working in their puncture shop for the last five years. She stated that accused Bablu Giri was taken by the police from their shop in her presence at around 8.30 pm on 26.02.2017 and at that time, her husband was also at the shop. In cross examination by ld. Addl. P.P., she stated that they have not maintained any register, nor any muster roll nor issued any employment card to accused Bablu Giri. She was not aware about any other case regarding robbery etc. against accused Bablu Giri. She has denied the suggestion that accused Babloo was arrested on 26.02.2017 from her shop but actually the accused was apprehended on 02.03.2017. She did not make any call to the police regarding apprehension of accused nor made any complaint to higher authority regarding apprehension and implicating the accused in this case. She has not made any complaint against the police to this effect to any higher authority.
34. Accused Johny examined his father Shamsher as DW2 who stated that on 01.03.2017 at 11.00 pm, he was present in his house and was taking meals and his son Johny was sleeping in the house when police official came to his house and took Johny alongwith them and thereafter Johny did not come back home but there is no such complaint made by him SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 23 of 30 against the police to this effect to any higher authority.
35. Accused Pradeep Kumar Pal examined his elder brother Mahendra Pal as DW3 who stated that on 16.01.2017, Pradeep Kumar Pal was at home in the whole night and remained present there next day till 3.30 pm to purchase the material for his Theli and then went to purchase the material for his theli. On 26.02.2017, he came to know from some other persons that police had taken his brother Pradeep at about 8.30 pm. When he went to Police Station Preet Vihar, police officials threatened him to leave the PS otherwise they will also arrest him in some false case. This witness has denied the suggestion that police informed him about the arrest of Pradeep and he is deposing falsely in favour of accused being his brother.
36. So far as the testimony of defence witnesses as compared to the prosecution witnesses, there is no ocular or trustworthiness in the testimony of defence witnesses who has deposed. All the witnesses are not summoned witnesses. They have appeared on their own to depose in favour of the accused persons as being relatives etc. They have not made any statement after the arrest of accused persons nor filed any affidavit to this effect in support of their contention prior to. It is a rule of law that defence witnesses be also taken at par as to the prosecution witnesses but their deposition must be trustworthy and inspire confidence. In comparison of the deposition of prosecution witnesses as well as testimony of victims, the statement of defence witnesses does not inspire confidence as found not trustworthy. Even their testimony is also not corroborated by any ocular evidence i.e. call SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 24 of 30 detail records or CCTV footage etc.
37. It is further to say that to facilitate the matter, Sections 392; 394 and 307 IPC are as reproduced as follows:
392 Punishment for robbery - Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten yeas, and shall also be liable to fine; and if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
Sec. 394 - Voluntarily causing hurt in committing robber - If any person, in committing robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Sec. 307 - Attempt to murder - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.
38. Hence, in view of the above and material on record, so far as the recovery of robbed articles is concerned, accused Pradeep Kumar Pal SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 25 of 30 and Bablu Giri are facing charges u/s 411/34 IPC and that these accused persons do not claim over the case property and has simply denied that nothing has been recovered from their possession. The said mobile phone and purse containing ATM card and cash etc. are being recovered from the possession of above accused persons and this fact has also been verified by the prosecution witnesses and there is no defence on this account. PW6 SI Ramesh Lal testified that on 28.02.2017, on receipt of information, he alongwith Ct. Rajbir and Ct. Kapil reached at Ganesh Nagar Chowk where secret informer met them and on his pointing out, accused Bablu Giri and Pradeep Kumar Pal were apprehended. Prior to their apprehension, public persons were requested to join the proceedings but none agreed. He further testified that on casual search of accused Bablu Giri, one mobile was recovered and on being found in possession of the same, no satisfactory reply was given by him. On thorough interrogation, accused disclosed that he robbed said mobile phone with the help of coaccused from Railway Track Mandawali. He checked IMEI number of said mobile with the complaint and it was found same as mentioned in the complaint. Accused persons confessed their guilt and they were arrested vide memos Ex.PW5/A and PW5/B and personal search was conducted vide memos Ex.PW5/C and PW5/D. Both accused persons made disclosure statements Ex.PW5/E and PW5/F. However, in examination of defence witnesses, they mentioned different dates of arrest of accused persons. So far as accused Bablu Giri, it is also denied that he was not arrested as alleged and lifted from puncture SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 26 of 30 shop where he was working in presence of his owner Surender and his son Amit.
39. Apprehension of accused persons must be lawful whether it is in good faith or not it is immaterial. Accused persons were fled away after committing the offence though, the victims of the crime have given physical description of the accused persons and police has made efforts to search them and on the basis of secret information, police apprehended the accused persons and also recorded their disclosure statements. Accused persons have first time taken the plea of their false arrest on the said date and place but there is no authentic and corroborative evidence to this effect except evidence of defence witnesses which seems to be afterthought and have not inspired confidence. Hence, the plea of arrest of accused persons at the place as mentioned by defence witnesses is not sustainable by any ocular, trustworthy evidence.
40. The evidence of both PW2 Sahil Rai and PW3 Tushar Rai are clear and reliable as they had seen the robbers in the day light and thereafter, both the witnesses had identified all three accused persons out of four assailants in the TIP parade also. This fact was also corroborated by Metropolitan Magistrate who has conducted the TIP parade of all the accused persons thereto and accused persons have also admitted the same in their statement u/s 294 CrPC. In these circumstances, on the basis of plea of contradictions and shown the photographs of the accused persons and plea of their apprehension from different places does not hold any water and the SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 27 of 30 accused persons cannot be escaped from their liabilities.
41. The court has to be look into the aspect whether the accused persons have been convicted for the offence as per the charges framed or thereto, to commit the offences. It is matter of fact that weapon of offence i.e. knife with which, the injuries were caused on the person of PW2 Sahil Rai and shown knife on the neck of PW3 Tushar Rai, has not been recovered nor any expert opinion with regard to the said weapon/injury was obtained thought the MLC No. 185/17 dated 16.01.2017 of PW2 Sahil Rai and his Xray plate has been obtained by the police.
42. The nature of injuries as opined is '"grievous" one.
43. The robbery is defined under Section 390 IPC, - Robbery is only an aggravated form of offence of theft or extortion and aggravation is in use of violence of death, hurt or restraint. This violence should be during the course of robbery and not subsequently and actually committing the violence is not necessary but any attempt to commit violence is sufficient. There must be an attempt to cause to any person death, or hurt or wrongful restraint while committing the offence or attempted to carry away property obtained by theft.
44. Reliance is placed upon the judgment Pooran Singh Vs. State of M.P. (1985) 1 Crimes 820 (MP), in which it was held that "In a case of robbery and participation therein of the accused persons were testified by independent witnesses and it was corroborated by recovery of stolen articles and injuries on the victim, robbery by the accused persons stood proved". It SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 28 of 30 has been testified by the prosecution witnesses that the accused persons have used deadly weapon while committing the robbery and robbed PW2 Sahil Rai and PW3 Tushar Rai by taking away their mobile phones and valuable articles including cash. One of the victim sustained injuries which is grievous in nature.
45. The accused persons were also charged for the offence u/s 394 IPC r/w Section 34 IPC. Section 394 IPC deals with the liability of robbers some of whom caused hurt. Such hurt must be caused voluntarily while committing robbery. The preparator of hurt apart, others who are jointly concerned in committing or attempting to commit such robbery, is constructively liable despite not causing any hurt whatsoever to the victim. The provisions of Section 392/394 IPC applicable to the facts and circumstances as well as deposition of the prosecution witnesses in inconsonance with the judgment as discussed in the preceding paras, the court came to the conclusion that the prosecution has been able to prove its case against accused Pradeep Kumar Pal, Bablu Giri and Johny for the offence u/s 392/394/34 IPC beyond all reasonable doubt. Though, the ingredients of Section 397 IPC does not attract to the facts and circumstances as per deposition of prosecution witnesses. Accordingly, all the accused persons are acquitted for the offence u/s 397 IPC.
46. Qua offence punishable under Secs. 392/394/34 IPC, perusal of the record is clear to the effect that accused Pradeep Kumar Pal was very much present at the spot and the commission of crimes were committed SC No. 393/18 State Vs. Pradeep Kumar Pal etc. Page No.: 29 of 30 under his supervision and later on he pelted stones to facilitate the crime of robbery and thus, all these accused persons have common intention to commit the crime of robbery and while committing so, injuries were caused to injured. As such, all these accused persons namely Pradeep Kumar Pal; Bablu Giri and Johny have common intention to commit robbery and causing injuries to injured while committing the robbery and thus all are held guilty and convicted for the offence punishable under Sections 392/394/34 IPC.
47. So far as provision of Section 411/34 IPC, robbed articles i.e. mobile phones and purse containing valuable articles got recovered from the possession of accused Bablu Giri and Pradeep Kumar Pal on the basis of their disclosure statement. They have not claimed over the said case property. The statements of PW6 SI Ramesh Pal, PW4 Ct. Sumit and PW 5 Ct. Kapil inspired confidence. Hence, the prosecution has been able to prove the guilt of the accused Bablu Giri and Pradeep Kumar Pal u/s 411/34 IPC and accordingly, they are convicted for the offence u/s 411/34 IPC.
Announced in the open Court Digitally signed by
SATINDER SATINDER KUMAR GAUTAM
Dated : 17th day of January, 2019 KUMAR GAUTAM Date: 2019.01.17 15:31:04
+0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge03 (East):
Karkardooma Courts : Delhi.
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