Delhi District Court
State vs . Wazid & Etc on 29 July, 2022
IN THE COURT OF MS AKANKSHA GARG, MM03, SE,
SAKET COURTS, NEW DELHI
State Vs. Wazid & Etc
FIR No.338/2008
Police Station : H. N. Din
Under Section : 392/394/411/34 IPC
Date of institution : 29.12.2008
Date of pronouncement : 29.07.2022
JUDGEMENT
a) Cr. Cases number of the case 88169/2016
b) Date of commission of offence 30.09.2008
c) Name of the complainant Jainendra Kumar Jain
(1) Wazid@Sajid@Bhure
S/o Sh. Ilyas
R/o H.No.225, Jaitpur, Gali no.9, B
block.
(2) Rashid
S/o Sh. Ilyas
R/o H. No. A479, Gali No.9, Jaitpur,
Extn. PartII, Khadda Colony, South
d) Name, parentage and address of the accused Delhi.
(3) Irshad@Andha
S/o Sh. Ashraf
R/o Gram Daultabad, Tehsil Nagina,
PS Kotwali,Dahat Distt. Bijnaur, UP.
(4) Irfan@Babloo
S/o Sh. Maqsood
R/o Village Mandawali, Distt. Bijnaur,
UP.
e) Offence complained of Section 392/394/411/34 IPC
f) Plea of the accused Pleaded not guilty
Convicted for offence u/s 394/411/34
g) Final order
IPC
h) Date of final order 29.07.2022
State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.1/20
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1) Shorn of unnecessary details, the brief facts of the case are that on the day of the alleged incident i.e. 30092008, the complainant was robbed by four persons sitting in TSR number DL1RL0815 and after robbing the VIP briefcase containing cash of Rs.5.5lacs and some other articles belonging to the complainant, the accused persons threw him out of the moving TSR. The said TSR used in the robbery and the briefcase along with cash of Rs.2.5 Lacs belonging to the complainant were recovered on 01.10.2008 from the possession of accused Sajid@wazid@Bhoore(who initially misguided the police and posed himself as Rashid). He disclosed the involvement of his elder brother Rashid as being the TSR driver and his three friends namely Irshad@Andha, Nafees and Irfan@Babloo. Thereafter the IO sought police Custody remand of accsued Sajid@wazid and conducted various raids and arrested accused Rashid on 06.10.2008 and recovered the robbed money of Rs.50,000 having currency notes bearing stamp of P.N Trading Company belonging to the complainant. The other accused persons namely Irshad, Nafees and Irfan were arrested on the same day i.e. 06.10.2008 while they were trying to flee from Delhi to their native place in UP. From the personal possession of accused Irshad and Irfan, robbed money of Rs. 90,000 and 80,000 were recovered respectively and a few currency notes bore the stamp of P.N Trading Co. However, no robbed money could be recovered from the possession of accused Nafees. The application for conducting TIP of all the five accused persons was moved by the IO, however, only Nafees and Irfan joined the TIP proceedings and rest of the accused persons refused the same. Out of the said two accused persons the TIP of accused Irfan was successful and complainant identified him, however complainant could not identify accused Nafees. Therefore, accused Nafees was discharged by the court. ACCUSATION AGAINST THE ACCUSED
2) Vide order dated 30.04.2009 passed by this Court, a charge u/s 411 Indian penal Code, 1860(hereinafter IPC) was framed against accused Sajid@Wazid while State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.2/20 accused Rashid, Irfan and Irshad were charged for offences u/s 392/394/411/34 IPC to which they pleaded not guilty and claimed trial. Since, accused Sajid@Wazid expired during the trial, the proceedings qua him stood abated and therefore vide this judgement I shall be deciding the complicity of accused Rashid, Irfan and Irshad only.
EVIDENCE OF THE PROSECUTION
3) The prosecution in all examined 9 witnesses in order to prove its case against the accused persons. The testimony of the material witnesses has been discussed hereinafter:
(a) PW2, Jainender Kumar Jain who is the complainant in the present case deposed that on 30.09.2008 at about 11.30/12.00 noon, he boarded a TSR bearing no. DL1RL081 from Sara Kale Khan bus stand going towards Laxmi Nagar.
Apart from the driver two persons were already sitting in the said TSR at the rear seat and one more person came and sat besides the driver. When the TSR started moving, the latter came to the back seat and suddenly all three of them started manhandling him and snatched his brief case containing Rs. 5.50 lacs in cash, a pair of clothes and some other articles. Thereafter, they threw him out of the TSR and threw one bag which belonged to the accused persons and fled away from the spot. Complainant called the police. The complainant had correctly identified accused Rashid, Irfan and Irshad in the court and the case property i.e. recovered briefcase and cash of Rs.4.70 lacs.
(b) PW3, Rajesh deposed that the TSR bearing no. DL1RL0815 was deposited by him to the finance company, thereafter, Munna Khan had purchased the same from the said company.
(c) PW4, Munna Khan deposed that on the said date, he was the owner of the TSR no. DL1RL0815 and on the said date he had given the same to one Ompal who used to live in Jhuggi. The said witness turned hostile and resiled from his previous statement given to the police wherein he stated that on the said date the said TSR was given by him to accused Rashid. He also denied that the fact that he had given any such statement to the police.
State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.3/20
(e)PW6 Ct. Jitender who was the recovery witness deposed that in the presence of Ct. Balraj and SI Ram Manohar, the TSR bearing no. DL1RL0815 was recovered from outside the house of accused Rashid who later turned out to be accused Wazid. Apart from the said TSR, cash of Rs.2.5lacs and bearing stamp of PN Trading company was also recovered from the said TSR. Accused was arrested vide arrest memo ExPW6/A and the case property was seized vide seizure memo ExPW6/C bearing his signature at point A. the TSR was taken into police possession vide ExPW6/D. He further deposed that on 06.10.2008, at about 5.00PM, cash of Rs.50,000/ bearing stamp of PN Trading Company was recovered from the pant of right pocket of accused Rashid which was seized vide personal search memo ExPW6/E and accused was arrested vide ExPW6/F bearing his signature at point A. Thereafter, the team went to Ashram Chowk where remaining accused persons were already present. Accused Rashid pointed towards them and cash of Rs.90,000/ and Rs.80,000/ was respectively recovered from accused Irshad and Irfan. The said cash was seized vide personal search memo ExPW6/G to PW6/L. All the four accused persons were brought to PP Sarai Kale Khan and case property was deposited into malkhana.
(f)PW7 Inspector Ram Manohar who is the IO in the present case deposed that on 30.09.2008 at about 12.30PM, he had received DD no.8 which was regarding robbery of cash at Ring Road Sarai Kale Khan. He proceeded to the spot and met the complainant who informed him about the entire incident. He recorded statement of complainant vide already ExPW2/A and prepared a rukka vide already ExPW5/A. On 01.10.2008, he along with Ct. Balraj and Ct. Jitender reached the house of Rashid and recovered the said TSR from the possession of accused Rashid. One briefcase containing case of Rs.2.5lacs, cheques and latter heads of PN Trading Company were also recovered. The same were taken into possession vide seizure memo already ExPW6/B bearing signature at point B. Thereafter the recoveries were made on 06.10.2008 from the possession of accused Irshad, Irfan and Rashid. He also put an application for the TIP of all the accused persons and except accused Irfan and Nafees, all the accused persons had State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.4/20 refused to participate in TIP proceedings. Accused Irfan had been correctly identified during his TIP but the complainant failed to identify accused Nafees. Thereafter, he recorded statement of several witnesses, prepared the chargesheet and filed before the court. He correctly identified accused Wazid, Irfan and Rashid.
(g)PW8 HC Om Prakash and PW9 Ct. Balraj who were also the recovery witness deposed upon similar lines as PW6 HC Jitender and PW7 IO Inspector Ram Manohar except from the fact that PW9 Ct. Balraj stated in his cross examination that the recovery was made from the house of Rashid. However, when reexamined by Ld.APP, he reconciled hi statement with his statement made in the chief that the recovery was made from the TSR.
4) Vide a separate recorded statement, accused persons have admitted under Section 294 Cr.P.C the following documents i.e TIP proceedings conducted on 17.10.2008 vide ExP/A/1 and TIP proceedings conducted on 19.11.2018 vide ExP/A/2 After examination of the abovesaid witnesses, PE was closed. STATEMENT / DEFENCE OF THE ACCUSED
5) In his examination under Section 313 CrPC., the accused persons have denied the entire evidence put to them and stated that they had been falsesly implicated and lifted from their house.
6) In their DE the accsued persons lead two defence witnesses.
(a) DW1, Amina deposed that on 03.10.2008 her brother Irshad and nephew Irfan had come to her place on account of meethi Eid. The police officials picked both the accsued persons from there and brought to chowki, the accused persons along with 1012 suspects were shown to complainant and despite the complainant refusing to identify them, they did not release them.
(b) DW2, Munni who is the mother of accused Rashid deposed that on 03.10.2008 her son was present at her house i.e. Mustafabad, Loni UP, while police officials picked him up and took him to chowki. Thereafter, the State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.5/20 complainant came and 1012 suspects were shown to him and he refused to identify her son Rashid. Thereafter, DE was closed.
ARGUMENTS
7) Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused persons Rashid, Irfan and Irshad and that they be convicted of offences under Section 394/411/34 IPC. Ld. APP has further contended that adverse inference has to be drawn against the accused persons since they had refused to participate in TIP.
8) On the other hand, it has been argued by the learned counsel for accused that accused persons are innocent as there is no evidence, which will prove guilt of accused persons to the hilt.
ANALYSIS AND FINDINGS
9) I have heard Ld. APP for the State and the Ld. counsel for the accused at length and perused the record carefully.
In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
Charge u/s 411IPC:
Section 411 IPC is defined as:
"Dishonestly receiving stolen property. --Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both"
The material fact against the accused persons is that all of them were arrested pursuant to a disclosure statement of accused Wazid@Bhure wherein he disclosed the specific role of all the coaccused persons and disclosed the fact that the remaining robbed amount could be recovered from State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.6/20 accused Rashid, Irfan and Irshad and the said amount was indeed recovered from their possession. Admittedly Wazid@Bhure made his disclosure statement while in police custody and that too to a police officer. Section 25 and 26 The Evidence Act, which have stood the test of the time for about one & half century, bar reading of any such statement given by accused person to the police or while in police custody. However, section 27 of Indian Evidence Act creates an exception to section 25 and 26, provided following two conditions are fulfilled:
i) if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody, and
ii) if the information relates to the facts discovered.
10) In order to utilise the provisions of section 27 against an accused person, an ordinary recovery, if so at all, cannot be turned into a discovery. The fact must be the consequence and the information the cause of its discovery. The information and the fact must be connected with each other as cause and effect and not vice versa.
11) In the facts of the case, the fact that the accused Rashid, Irfan and Irshad were involved in the alleged robbery and the recovery of cash amount upon their personal search can be said to be the fact discovered in consequence of the information received from accused Wazid@Bhure and therefore admissible in terms of Section 27 Indian Evidence Act. It has been unequivocally stated by all the prosecution witnesses that the said accused persons were nabbed at the instance of accused Sajid@Wazid. Moreover, the personal search memos, Ex.
PW6/F, Ex.PW6/J and PW6/L respectively of accused Rashid, Irshad and Irfan shows recovery and are duly proved by the prosecution.
12) Further, the fact of involvement of the accused persons is further corroborated by the fact that the stolen articles and cash were recovered from the accused persons, six days after the said incident at the instance of accused Sajid@Wajid@Bhure.
13) Now the question that arises in the given circumstances is whether it is safe to raise a presumption under Illustration (a) of Section 114 of the Evidence Act State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.7/20 which provides that:
"(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"
In Mohan Lal v. Ajit Singh 1978 AIR 1183, 1978 SCR (3) 823 Hon'ble Supreme Court held that:
"The question whether a presumption should be drawn against the accused under Illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. The nature of the recovered articles, the manner of their acquisition by the owner, the nature of the evidence about their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the intervening period and the explain the recovery, are some of those circumstances."
14) In the facts of the given case, since the recovered currency notes were stamped with "PN Trading Company" and the same have been duly identified by the complainant and recovered, six days after the alleged incident, moreover, all the accused persons have failed to explain as to how did they come into possession of the same. The only defence put by them is that the said recovery was planted upon them and the said cash was never recovered from their possession. It is not the case of the accused persons that the prosecution witnesses had harboured any ill feeling towards them.
15) I have no reason to disbelieve the testimony of witnesses which is consistent and corroborates the testimony of each other and the accused persons have failed to establish any motive on the part of the investigating agency to falsely implicate them and to plant a recovery upon them. It is also laid down by the Hon'ble Supreme Court time and again that the evidence of the Investigating Officer conducting a search can be relied upon without corroboration but equally settled law at the same time is that the question of corroboration depends upon the facts in each case.
State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.8/20
16) In order to substantiate his arguments Ld. Counsel has argued that all the amount i.e. total cash of Rs.4.70Lakhs had been recovered by the police on 01.10.2008 and there was no subsequent recovery as shown on 06.10.2008. Therefore, it is argued that the said recovery is planted upon the accused persons. Ld. Counsel placed reliance upon the testimony of the complainant. However, the perusal of the said testimony nowhere leads to the conclusion that the entire recovery had been made on 01.10.2008, rather the complainant had stated that he was informed by the police that his money had been recovered. It is in fact true that Rs.2.5Lacs were recovered on 01.10.2008 and the complainant never stated that the entire amount had been recovered on 01.10.2008 itself. Therefore, the said argument does not pass the muster and falls flat.
17) Further, Ld. Counsel has placed reliance upon the testimony of the Defence witnesses i.e. DW1 Amina who deposed that on 03.10.2008 her brother Irshad and nephew Irfan had come to her place on account of Meethi Eid. The police officials picked both the accused persons from there and brought to chowki, the accused persons along with 1012 suspects were shown to complainant and despite the complainant refusing to identify them, they did not release them. DW 2, Munni who is the mother of accused Rashid deposed that on 03.10.2008 her son was present at her house i.e. Mustafabad, Loni UP, while police officials picked him up and took him to chowki. Thereafter, the complainant came and 10 12 suspects were shown to him and he refused to identify her son Rashid.
18) In the facts of the case, the Defence witnesses are not the eyewitnesses to the alleged incident, neither have they deposed anything about the facts, time, place and circumstances in which the accused persons were present on the date of the alleged robbery i.e. 30.09.2008, moreover the said statements being the testimony of the related witnesss has to be sifted carefully and cannot be believed absolutely. In view of the fact that the said testimony does not find any corroboration whatsoever from the material on record and even if believed to be true, does not in any case disclose anything about the whereabouts of the accused persons on the date of the alleged incident of robbery, in my considered opinion, State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.9/20 it would be unsafe to create a dent upon the version of prosecution merely by such statement of defence witnesses.
19) It is further argued by the Ld. Counsel for the accused persons that the circumstances under which the accused persons were shown to be arrested were dubious. He has contended that the nonjoining of public witness has made the evidence of recovery highly unreliable and doubtful. He has further argued that no person of sane mind would roam around at 6:00 AM in the morning with the robbed cash in his pockets.
20) So far as the question of non joining of public witnesses is concerned it has been a settled law that the prosecution version, if found otherwise reliable, cannot be challenged merely because of the fact that no public witnesses had been joined. It is settled law that conviction can be based on the testimony of official witnesses and it is not necessary that in each and every case, public persons must be joined in investigation. In the case at hand the prosecution witnesses have deposed that though they asked several public persons to join the investigation, none joined. In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused." Hence, adverse inference cannot be drawn on account of failure of the prosecution to join independent witnesss.
State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.10/20
21) Now, coming to the argument of the Ld. Counsel for the accused persons that the accused persons would not roam around at 6:00AM with the cash in their pockets.
The same seems to be based upon mere conjectures and surmises. It is the case of the prosecution that the police officials had received secret information that in the morning of 06.10.2008 all the three accused persons were attempting to flee from Delhi to their native place at Bijnor(U.P). The said possibility cannot be ruled out, specially considering the fact that one of the accused Sazid@Wazid had already been nabbed by the police officials, the other accused persons were trying to flee in the wee hours along with the robbed amount which had been divided amongst themselves.
Contradictions in the testimony of witnesses:
22) Ld. Counsel has argued that there are numerous contradictions in the testimony of the prosecution witnesses which are as follows:
Contradiction as regards the time of recovery: While PW6, stated that he had joined the investigation on 01.10.2008 at about 5:00 PM, PW9 stated that he joined the same at 9:10AM. I have perused the entire testimonies of the witnesses. Admittedly, PW9 stated that he joined the investigation at 9:10 AM, however he also stated that he reached Loni i.e. place of recovery at about 34:00PM. Therefore, there is no material contradiction in the testimony of the witnesses as joining the investigation and making the recovery are two different things. Contradiction as regards the place of recovery: Whereas, PW7 stated that on 01.10.2008 he found a briefcase at the back side of the TSR at the instance of accused Sajid@Bhure, PW9 in his crossexamination stated that the said recovery took place from the house of the accused Sajid@Bhure. However, PW9 in his examination in chief as well as his reexamination stated and supported the fact that the said recovery was made from the TSR. Moreover, the fact that the said recovery had been made from accused Sajid@Wazid has been further reaffirmed and undisputedly established by several suggestions given by the defence to all the prosecution witnesses that all the recovery had been made on 01.10.2008 from accsued Sajid@Bhure and the subsequent recovery on 06.10.2008 is merely a State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.11/20 farce. In his crossexamination a specific suggestion was put to PW9 that the entire cash of Rs.4.7lacs had been recovered from possession of accused Rashid s/o Rafiq(i.e. Sajid@Wazid) on 01.10.2008. The defence cannot be allowed to blow hot and cold at the same time.
Contradiction as regards the fact where the written paper work took place: it is pointed out by defence that PW7 stated that written work was done on the bonnet whereas PW9 said that the same was done sitting in the room. Contradiction regarding the secret informer: It is further pointed out that PW9 stated that secret informer accompanied them on 01.10.2008 and pointed towards the house of Rashid, whereas PW7 stated that TSR was not apprehended at the instance of anyone and it suddenly came at the place of apprehension.
23) In my considered opinion, same are very minor contradictions, specially, considering the fact that there is a gap of ten years between the time when the incident occurred and when the testimony of the witnesses was recorded in the court, the said contradictions are not material in nature. Reliance is hereby placed upon Vinod Kumar vs State Of Haryana on 8 January, 2015 where the Hon'ble Supreme Court held a follows:
"The next facet relates to the discrepancies in the evidence of the witnesses....The High Court has correctly observed that the minor discrepancies like who met whom, at what time and who was dropped and at whose place and at what time, etc. have been given unnecessary emphasis. It is well settled in law that minor discrepancies on trivial matters not touching the core of the case or not going to the root of the matter could not result in rejection of the evidence as a whole. It is also well accepted principle that no true witness can possibly escape from making some discrepant details, but the Court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that it would be justified in jettisoning his evidence. It is expected of the Courts to ignore the discrepancies which do not shed the basic version of the prosecution, for the Court has to call into aid its vast experience of men and matters in different cases to evaluate the entire material on record."
State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.12/20
24) Therefore, raising of presumption under S.114 (illustration (a) will be well warranted against all the accused persons. Therefore, charge u/s 411 is established against all the three accused persons.
Charge u/s 394/34 IPC Section 394IPC is defined hereinafter:
"394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, volun tarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
25) In the case at hand, Complainant Jainendar Kumar Jain is the only eyewitness to the incident of robbery as it was only in his presence that the said offence was allegedly committed. The complainant throughout his testimony has remained coherent and successfully established the fact that at the said date and time in question, the alleged offences had been committed against him. He also proved his written complaint Ex PW2/A. He also identified the TSR used in committing the offence and the case property ie. his recovered VIP briefcase and TIP of the recovered cash of Rs.4.70 Lakhs was concluded by the court on the basis of seal of P&N Trading Company put on each bundle of currency notes. The factum of incident and identity of robbed property, having been successfully proved, the only relevant question that remains to be established is the identity of the accused persons.
26) In a criminal trial, the identity of the accused is of utmost importance and no person can be indicted for criminal liability, unless his identity is established beyond any shadow of doubt. In the facts of the case before me, the complainant has successfully identified all the three accused persons in the court. The testimony of the complainant is further corroborated by the fact that the complainant had identified accused Irfan in his TIP while accused Irshad and State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.13/20 Rashid had refused to join the TIP. Learned APP for the State has contended that adverse inference has to be drawn against the accused persons since they had refused to participate in TIP.
27) Per contra, it is contended by the Ld. Counsel for the accused that no adverse inference can be drawn regarding refusal of accused Rashid and Irshad as they had absolutely justified reasons in refusing the TIP since they had been shown to the complainant in the Police Station. Moreover, it is also contended that the identification of accused Irfan in his TIP is merely a farce as the complainant had been shown the accused in the Police station and he was specifically asked to identify him in the TIP. In order to substantiate his arguments, Ld. Counsel for the accused has placed reliance upon the Judgement of Hon'ble High Court of Delhi in Oudh Ram And Others vs The State 1982 CriLJ 1656, 22 (1982) DLT 20 wherein Hon'ble Court observed the following:
"Identification of the appellants by the ocular witnesses at the Police Station is of no consequence as the same would be hit by the provisions of S. 162, Criminal P.C."
28) In order to create a dent in the case of the prosecution, Ld. Counsel has made an endeavour to dilute the credence of the star witness of the prosecution Jainender Kumar Jain. During his crossexamination the witness stated that he could not see the faces of the accused persons properly as the entire incident occurred in 1015 seconds and he was defending the accused persons. It was further stated that he had not given the appearance of the accused persons in his complaint. On the next day of the incident, he was informed by the police that his articles had been recovered and he was called to the chowki where he was shown 45 accused persons.
29) Perusal of the site plan Ex.PW7/B which depicts Point A near ISBT Sarai Kale Khan as the place where the complainant boarded the TSR whereas Point C opposite I.P Park is the spot where he was thrown out of the TSR, hence, the distance between ISBT Sarai Kale Khan and IP Park is around 2.2KM and the incident occurred in the daylight at around 12:15PM. Sarai kale Khan bus stand is State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.14/20 a crowded area, especially considering the fact that the entire incident unfolded at the rush hours at around 12:15PM. It could be true that the entire incident of robbing the complainant could have occurred within a span of 1520 seconds but the contention of the Ld. Counsel for the accused persons that the complainant did not have sufficient time and opportunity to see the accused persons at the time of the incident, is completely unfounded and does not have merit in the opinion of this court. The complainant must have had some interaction with the TSR driver before boarding the same, moreover the complainant has mentioned in his written complaint that the person who was initially sitting with the driver and wearing driver's uniform came to the back seat saying that there was some checking going on, therefore the complainant had the opportunity to see him.
30) Further in his examinationinchief, the complainant stated that the fourth person who came to the back seat was sitting facing him and started talking to him. Moreover, the accused persons did not immediately throw the complainant from the TSR, rather they opened the briefcase and checked the money, closed it and thereafter pushed him out of the TSR, therefore, giving some more time to the complainant to see their faces. Also, the statement in his crossexamination that since he had not seen the accused persons properly, he had not mentioned the appearance of the accused persons in his complaint given to the police, cannot be said to be true. As perusal of Complaint Ex.PW2/A which has been duly proved by the prosecution reveals that the complainant had stated that the two of the accused persons were wearing driver's uniform and all of them were young and were of stout build and he could identify them if shown to him. Therefore, the argument of the Ld. Counsel for the accused persons , that the complainant neither stated in his complaint that he could identify the accused nor had the opportunity to see them properly at the time of the incident, falls flat.
31) Now, let us come to the argument of Ld. Counsel that all the accused persons had been shown to the complainant in the Police Station before their TIP was conducted. In order to substantiate the same, he has placed reliance upon the statement of the complainant in his crossexamination :
State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.15/20 "It is correct that on the next day of the incident I was informed by the police that my articles had been recovered and they had called me in the chowki. It is correct that I was shown 45 accused in the police chowki. It is correct that I was informed by the police that my sum of Rs.4.70lakhs has been recovered.
It is correct that after one week of incident, police had called me in the chowki and had shown me the accused. The police had also asked me to identify those accused in the TIP. It is correct that since the accused were shown in the chowki, I had identified them in the TIP and also in the court."
32) In the facts of the case, the witness though had not been declared hostile by the prosecution, in the opinion of this court has not supported the case of the prosecution in his crossexamination and has taken a completely contradictory stand to certain facts. In his chief the complainant completely supported his complaint, whereas, in his crossexamination he took a complete Uturn and said that he did not have the opportunity to see the faces of the accused persons and had not mentioned the appearance of the accused persons in his complaint which is completely contradictory to his written complaint wherein he stated otherwise.
Further, during his examinationinchief he stated that on the next day of the incident when he went to the Police Station, police had shown one accused to him to which he denied identifying and told them that he was not involved in the incident and that person was not present in the court, the said fact is completely contradictory to the fact stated in his crossexamination that 45 accused persons were shown to him the very next day of the incident. Moreover, the fact that the witness had refused to identify him in the police station and told the police that he was not involved in the incident, further lends credence to the fact that witness had identified the accused persons in the TIP and in the court, on his own accord and not at the instance of police officials. The identification is further strengthened by the fact that while identifying the accused persons in the court, witness pointed towards each accused and disclosed their exact locations and roles in the TSR. He specifically stated pointing towards Irfan and Irshad that the State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.16/20 said two persons were already sitting on the back seat of the TSR and while pointing towards Rashid, he deposed that he was initially sitting in the front and later came to the back seat.
33) The testimony of a witness has to be seen in totality and not in isolation. It cannot be said that once the witness no more supports the case of the party who has called him, his testimony is completely erased. However, as a rule of prudence, the court must look for some corroboration from some other evidence. In Rajesh Yadav. vs The State Of Uttar Pradesh on 4 February, 2022 it was held by the Hon'ble Supreme Court that:
"It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness."
34) In the case before me, the examinationinchief of the complainant i.e. PW2 concluded on 29.05.2014 whereas he was crossexamined on 29.06.2015, therefore a period of 13 months had lapsed between his examinationinchief and his cross examination. In the given circumstances the statement of the complainant in his crossexamination cannot be treated to be the gospel truth and has to be closely and carefully sifted in order to place reliance upon the same.
35) In Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 Hon'ble Supreme Court dealt with a situation where a witness after rendering testimony in line with the prosecution's version, completely abandoned it, in view of the long adjournments given permitting an act of manoeuvring. While taking note of such situations occurring with regularity, it expressed its anguish and observed that:
"51. It is necessary, though painful, to note that PW 7 was examinedin chief on 3091999 and was crossexamined on State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.17/20 2552001, almost after 1 year and 8 months. The delay in said crossexamination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim."
36) In Rajesh Yadav. vs The State Of Uttar Pradesh on 4 February, 2022 it was observed that:
"We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
(emphasis supplied)
37) Coming back to the contention of Ld. Counsel for the accused persons where, while questioning the identification of the accused persons he placed reliance upon Judgement of Hon'ble High Court of Delhi in Oudh Ram And Others vs The State 1982 CriLJ 1656, 22 (1982) DLT 20 .The relevant portion of the same is reproduced below:
"Identification of the appellants by the ocular witnesses at the Police Station is of no consequence as the same would be hit by the provisions of S. 162, Criminal P.C. Even otherwise it appears to be just farcical because only 10 persons who were subsequently State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.18/20 arraigned as accused were shown to the witnesses at the Police Station for identification. It could well have the effect of inducing a belief in the witnesses that the persons shown to them by the police were in all probability the culprits who had committed dacoity on the fateful night, especially when certain stolen articles were alleged to have been recovered from each one of them. Thus, the evidence of these witnesses as regards the identity of the appellants cannot be accepted at their face value and the Court must look for some kind of corroboration from other reliable evidence to connect them with the commission of the crime. At the same time, it will be wrong to discard the evidence of these witnesses unceremoniously." (emphasis supplied)
38) Upon perusal of the same in totality, it appears that Hon'ble High Court did not totally discard the identification of the accused persons in the given circumstances where it was alleged that the accused persons were shown to the witness in the Police Station. Rather, the Hon'ble Court merely gave a note of caution and said that the court must look for some corroboration from other reliable evidence to connect them with the commission of the crime and the evidence of these witnesses cannot be discarded. In fact, in the facts of the given case Hon'ble Court while finding other corroborative evidence, safely placed reliance upon such identification and went on to convict some of the accused persons.
39) Moreover, the result of a TIP is not a substantive piece of evidence and merely a corroboratory piece of evidence which lends credence to the identification in the court when the witness enters the witness box. In Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh AIR 160 SC 1340, Hon'ble Supreme Court observed that the substantive evidence of a witness is his statement in court but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding or any other evidence.
40) In the facts of the case before me, the other corroborative and the material evidence, in relation to the said offence is that , on the sixth day after the robbery all the three accused persons were found in possession of the robbed cash amount State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.19/20 bearing the stamp of the complainant's company and correctly identified by the complainant. Further, the fact that the accused Rashid, Irfan and Irshad were involved in the alleged robbery and the recovery of cash amount upon their personal search can be said to be the fact discovered in consequence of the information received from accused Wazid@Bhure and therefore admissible in terms of Section 27 Indian Evidence Act. The said fact further lends credence to the story of the prosecution and establishes the involvement of all the three accused persons in the alleged robbery.
41) Therefore, in the totality of the circumstances while considering the discovery of fact of involvement of the accused persons and the consequent recovery and the identification of the accused persons by the complainant has lead to the logical conclusion that at the alleged date, time and place of the incident, it was none other than the accused persons who had robbed the complainant and caused hurt to him. In view of the same the charge u/s 392 is duly proved. However, while committing the said robbery the accused persons also caused hurt to the complainant by throwing him out of the moving TSR. The said fact is further corroborated with the MLC dated 30.09.2008 of the complainant which states alleged fall from the autorickshaw two hours before the medical examination and shows superficial abrasions, swelling and tenderness over left knee and left hand.
42) Section 394 IPC entails punishment for the offence of robbery where the accused while committing such robbery voluntarily causes hurt to the victim. Therefore, in the facts of the case, the ingredients of offence u/s 394 are also made out. Conclusion
43) Accordingly accused Rashid, Irfan and Irshad stand convicted for offences punishable under section 394 and 411 read with section 34 IPC.Digitally signed by
ANNOUNCED IN OPEN COURT AKANKSHA AKANKSHA GARG
Today on 29.07.2022 GARG Date: 2022.07.29 17:47:18
+0530
AKANKSHA GARG
METROPOLITAN MAGISTRATE03
SOUTH EAST, SAKET COURTS,
New Delhi/29.07.2022
State Vs. Wazid & Ors FIR No.338/2008 PSH. N. Din Page no.20/20