Delhi District Court
Rakesh S/O Hemraj Moond vs Aurngzab@Sonu on 11 September, 2024
IN THE COURT OF SH. VIPIN KHARB
ADDITIONAL SESSIONS JUDGE-07 : SOUTH-EAST DISTRICT
SAKET COURTS : NEW DELHI
SC No. 11304/23
CNR No. DLSE01-006603-2023
State Vs. 1. Aurangzeb @ Sonu
S/o Sh. Mohd. Siraz Khan
R/o H. No. H-46A,
Abul Fazal Enclave Part-I,
Jamia Nagar, Delhi
2. Karan @ Kallu
S/o Sh. Raju
R/o H. No. C-275, Nai Basti
Near Shiv Mandir, Abul
Fazal Enclave, Part-1,
Jamia Nagar, Delhi
FIR No. : 112/2023
Police Station : Shaheen Bagh
Under Sections : 394/397/411/34 IPC
Date of committal to Sessions Court : 08.06.2023
Date on which judgment was reserved : 11.09.2024
Date on which Judgment pronounced : 11.09.2024
JUDGMENT
BRIEF FACTS OF THE CASE:
1. On 19.03.2023, the complainant Rakesh Moond has filed online E-FIR No. 0112/2023 u/s. 379 IPC regarding snatching of his mobile phone and FIR No.112/2023 State Vs Aurangzeb & Anr. Page 1 of 28 investigation was marked to the IO. During investigation, IO contacted the complainant, who told that on 19.03.2023 in the evening he was going on foot to Alshifa Hospital for his duty and when he reached near garbage house, two boys caught hold of him, stabbed him with knife and snatched his mobile and he got himself treated at Alshifa Hospital. IO obtained MLC No. 1147/23 of the complainant on which alleged history of physical assault by a group of 3 unknown persons is written. IO recorded statement of complainant in which he stated that he works as a security guard in Alshifa Hospital and resides in a rented house near Mata Mandir in Jasola Village. On 19.03.2023 his duty was from 8:00 pm, so, he left for duty at around 07.30 p.m. on foot and was talking on the phone. When he reached near garbage house, two boys came and stopped him. On seeing them, he kept his phone in his pocket then one of the boys hold his hand and tried to snatch his phone of make 'Tecno Spark' Sky Blue Color having IMEI No. 355590474993087, 355590474993095 and having Airtel SIM number 8529731440. To free his hand, complainant bite that boy's hand on which that boy took out a knife and stabbed him on his shoulder.
The other boy took out his phone from his pocket and both the boys ran towards the cemetery. Thereafter, complainant went to Alshifa Hospital and got himself treated.
2. On the basis of his statement, section 394/397/34 IPC were added. IO alongwith complainant went to the spot and prepared site plan and searched for the CCTV cameras but did not find anything. On 22.03.2023, HC Monu Kumar informed the IO that accused Aurangzeb and Karan have been arrested from whom mobile phone of complainant has been recovered. On this information, IO formally arrested them, interrogated them and recorded their disclosure statements. Both the accused persons refused to join the TIP during investigation.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 2 of 283. After completing the investigation, charge-sheet was filed in the court for the offence u/s. 394/397/411/34 IPC. After complying with Sec.207 Cr.PC, case was committed to the Sessions Court.
4. After hearing arguments, charge u/s. 394/411/34 IPC was framed against the accused Karan @ Kallu and charge u/s. 394/397/34 IPC was framed against the accused Aurangzeb on 05.09.2023 to which both accused pleaded "Not Guilty" and claimed trial and accordingly the case was fixed for prosecution evidence.
5. During the course of the trial, prosecution examined 10 witnesses to substantiate the accusations leveled against the accused persons.
6. PW-1 / Sh. Rakesh Moond was the complainant on whose complaint FIR was registered. He deposed that two boys came in front of him and suddenly, one of them tried to take out his mobile phone make Techno from his right pocket but he resisted, on which other accused person took out a knife from his pant and stabbed him on shoulder but he still refused to give his mobile phone to them. Then again accused stabbed him on the shoulder and he got scared and one of them took out his mobile phone and both ran away in opposite direction. Thereafter, he went to Alshifa Hospital and narrated the whole incident to the staff of the hospital and got himself treated there. He lodged the E-FIR i.e. Ex.P1 of the incident from computer system of hospital. After one hour, he received a call from the police officials over his mobile phone and they called him at police station. He went to the police station and IO recorded his statement Ex.PW1/A. He along with IO went to the spot and on his instance, IO prepared the site plan Ex.PW1/B and after that he came FIR No.112/2023 State Vs Aurangzeb & Anr. Page 3 of 28 back to his room. On next day, he was again called by the IO and he went to the police station, where both the accused were in custody. He identified them in police station and also identified his mobile phone, which was recovered from the possession of the accused persons. He correctly identified the accused persons in the court and submitted that the boy wearing black sweater and fair in colour and shorter in height, stabbed him with the knife and the taller boy of dark colour took out mobile phone from his pocket. Court observed that name of the shorter boy is Aurangzeb and name of the taller boy is Karan.
7. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-1 as he has not disclosed the entire facts of the incident. In his cross-examination by Ld. Addl. PP for the State, he stated that he told the computer operator of the hospital that the accused persons assaulted him and snatched his mobile phone but inadvertently, the computer operator of the hospital did not mention this fact in the e-FIR. During the incident, he bite the hand of the accused Aurangzeb, when he was trying to snatch his mobile phone. During evidence, PW-1 brought his mobile phone make Techno Spark, bearing IMEI No.355590474993087 Ex.P1 and proved the superdarinama as Ex.PW1/C. He identified the knife as Ex.P2.
8. In cross-examination by Ld counsel for accused, he admitted that he told the concerned hospital that three unknown persons assaulted him during incident. He voluntarily stated that due to the fear, inadvertently, he told to the concerned doctor that he was assaulted by three unknown persons but he was assaulted by two accused persons at the time of incident. The accused stabbed him twice at the time of incident. He did not call at 100 number. At the time of incident, there was slight dark. IO made video call over mobile phone to identify the accused persons. He went to the police station and identified the FIR No.112/2023 State Vs Aurangzeb & Anr. Page 4 of 28 accused persons. On 20.03.2023, he went to the police station where IO recorded his statement. On 20.03.2023, IO did not show the mobile phone at police station. On 20.03.2023, IO showed him the accused persons on video call and he told him that they may be the accused persons. On 21.03.2023, he went to the police station where he identified his mobile phone but did not remember the exact time.
9. After taking permission from the court, Ld. Addl. PP for the State re- examine the witness about the date of arrest of the accused. In re-examination, PW-1 stated that he did not remember the exact date whether it was 20.03.2023 or 21.03.2023 but he admits that he went to the PS on 21.03.2023 and identified the accused persons.
10. PW-2 / Ct Dharampal deposed that on 21.03.2023 at about 07:40 pm, he along with Ct. Abhay were on patrolling duty in Abul Fazal Enclave, Part-I, Shaheen Bagh and when they reached at Token No.3, Yamuna Pusta Road, one splendor bike overtake their bike with high speed and two persons were on the bike. On suspicion, they chased and stopped them. The pillion rider of the bike tried to run away, so, he chased him and the rider of the bike was apprehended by Ct. Abhay. He apprehended the pillion rider of the bike after some distance. After enquiry, their names were revealed as Karan and Aurgnzab. He took the cursory search of the accused Karan and found one mobile phone make Techno company from pocket of his pants and Ct. Abhay took cursory search of accused Aurgnzab and found one buttondar knife from his possession. Ct. Abhay informed the Police Station and HC Monu Kumar, IO in FIR No. 123/2023 PS Shaheen Bagh came at the spot. HC Monu Kumar arrested them in FIR No. 123/2023 vide arrest memo which are Ex.PW2/A and Ex. PW2/B and recorded their disclosure statements in which they disclosed about their FIR No.112/2023 State Vs Aurangzeb & Anr. Page 5 of 28 involvement in the present case. IO came to know that the mobile phone is the stolen case property of the present case, so he informed the IO of the present case. He correctly identified the accused persons, mobile phone make Techno Spark, bearing IMEI No.355590474993087 already Ex.P1 and the knife Ex.P2.
11. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-2 as he was partially resiled from his previous statement. In his cross-examination by Ld. Addl. PP for the State, he stated that IO seized stolen mobile phone vide seizure memo Ex.PW2/C, seized the buttondar knife vide seizure memo Ex.PW2/D, recorded disclosure statements of accused Ex.PW2/E and Ex.PW2/F and prepared sketch of knife Ex.PW2/G and prepared the recovery site plan Ex.PW2/H.
12. In cross-examination by Ld counsel for accused, he admitted that IMEI number of stolen mobile phone is not mentioned in his statement. He also admitted that it is not mentioned in DD No. 49A i.e. Ex.P3 that the stolen mobile phone was also recovered from the possession of the accused. He voluntary stated that at that time they were unaware that mobile phone was stolen property.
13. PW-3 / Ct. Abhay was the police official who was accompanying the PW-2 / Ct. Dharampal. He also deposed on the similar lines as PW-2.
14. PW-4 / HC Monu Kumar deposed that on 21.03.2023 he was posted as Head Constable at PS Shaheen Bagh and at about 7:30 p.m. he received a call from police station and went to Yamuna Pusta Road, Near Thoker No.3, where he met Ct. Abhay and Ct. Dharampal who had already apprehended both accused persons. He identified the mobile phone Techno Spark bearing IMEI FIR No.112/2023 State Vs Aurangzeb & Anr. Page 6 of 28 No. 355590474993087 as Ex.P1 and both the accused persons and knife as Ex.P4.
15. PW-5 Gous Mohammad was the Ahlmad of Ld. MM and brought the original judicial file of FIR No. 123/23 PS Shaheen Bagh and proved the photocopies of the documents of present case i.e. site plan as Ex.PW-5/A, seizure memo of mobile phone Techno Spark as Ex.PW-5/B, arrest memos of accused persons Aurangzeb and Karan as Ex.PW-5/C and Ex.PW-5/D respectively, sketch of buttondar knife as Ex.PW-5/E, seizure memo of knife as Ex.PW-5/F and disclosure statement of accused Aurangzeb and Karan as Ex.PW-5/G and Ex.PW-5/H respectively.
16. PW6 / ASI Parveen Kumar was the IO of the case. He deposed that on 19.03.2023, present FIR was registered online and concerned SHO marked it to him for investigation and he contacted complainant Rakesh and recorded his statement Ex.PW1/A. He went to the Alsafa Hospital and collected the MLC report. He along with complainant went to the spot and prepared the site plan already Ex.PW1/B and searched for the accused persons near the spot but could not find him. On 21.03.2023, HC Monu, IO of FIR No.123/2023 PS Shaheen Bagh informed him that the accused persons namely Aurangzeb and Karan had disclosed about their involvement in the present case and mobile phone was also recovered from them. He formally arrested the accused persons in the present case vide arrest memo Ex.PW6/A and Ex.PW6/B respectively and recorded their disclosure statements as Ex.PW6/C and Ex.PW6/D respectively and moved the application for TIP proceedings but accused persons refused to participate in TIP. He prepared the charge-sheet and filed before the court. He identified both the accused persons in the court.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 7 of 2817. After taking permission from the court, Ld. Addl. PP for the State put leading question as PW-1 did not disclose some facts. In reply to that, he admitted that he had placed the CAF and CDR of mobile phone no.8529731440 of the victim Rakesh with the charge-sheet and proved photographs of the injured/victim Rakesh as Ex.P1.
18. In cross-examination by Ld. LAC for accused persons, he stated that no 100 number call was made at the time of incident. He did not record the statement of members of the hospital and he did not seize blood stained clothes of the complainant. He denied that he falsely implicated the accused in the present case and he has deposed falsely in the court.
19. PW-7 / Sh. Ajay Kumar was the Nodal Officer of Bharti Airtel Ltd who sent the CAF of mobile No. 8529731440 to the IO through Email.
20. PW8 / Dr. Varun Agarwal appeared on behalf of Dr. Madhur Tomar, JR who prepared the MLC bearing No.22954/2023 of accused Aurngzab @ Sonu and as per the MLC report, accused was having bite mark on right hand over Dorsal side. He identified the writing and signature of Dr. Madhur Tomar as Dr. Madhur Tomar worked under his supervision and he had seen him writing and signing during the course of work. Presently he left the hospital and his whereabouts are not known. He proved the MLC as Ex.PW-8/A.
21. In cross-examination by Ld. LAC for accused Aurangzeb, he stated that as per the MLC report, he cannot tell about bite mark injury whether it is fresh or old. He cannot admit or deny the suggestion that the bite mark was caused by the animals i.e. dog, cat, money etc. FIR No.112/2023 State Vs Aurangzeb & Anr. Page 8 of 28
22. PW-9 / Sh. Ajay Kumar was the Nodal Officer who proved the CAF of mobile No. 8529731440 of complainant Rakesh Kumar Moond as Ex.PW-9/A and certificate u/s. 65B as Ex.PW-9/B.
23. PW10 / ASI Devender Singh deposed that on 21.03.2023, he was on emergency duty from 08:00 am to 08:00 pm. and duty officer informed him that the case property i.e. stolen bike make Hero Splendor bearing No.DL-3S- ER-4217 was recovered by the HC Monu in FIR No.123/2023 PS Shaheen Bagh and also told that one buttondar knife and mobile of the present case is also recovered and he correctly identified both the accused persons in court.
24. Accused persons have admitted DD No.49A as Ex.D1, MLC No. 1147/2023 of injured Rakesh as Ex.D2, copy of E-FIR as Ex.P1, TIP refusal proceedings of accused persons as Ex.P2 u/s. 294 Cr.PC.
25. After completing evidence, prosecution evidence was closed vide order dated 27.07.2024 and matter was fixed for recording statement of accused persons.
26. Statement of accused persons under Section 313 Cr.P.C. was recorded wherein they stated that they are innocent falsely implicated in the present case. They did not lead any evidence in their defence.
27. I have heard the arguments advanced by the Ld. Addl. PP for the State and Ld. Counsel for all accused persons and have perused the record.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 9 of 2828. In order to prove the offense U/s 394/397/411/34 IPC against accused persons, the prosecution was required to prove beyond reasonable doubt that accused persons in furtherance of there common intention, committed robbery upon the complainant and while committing robbery, accused Aurangzeb @ Sonu used deadly weapon i.e. Knife and caused injury to the complainant and from the possession of accused Karan @ Kallu, stolen mobile phone belonging to complainant was recovered. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
Appreciation of Evidence.
Recovery from Accused Persons
29. As per the case of the prosecution, on 21.03.2023 both accused persons, on suspicion, were stopped by PW-2 Ct. Dharampal and PW-3 Ct. Abhay and from possession of accused Aurangzeb @ Sonu one buttondar knife was recovered and from possession of accused Karan @ Kalu one mobile phone was recovered. PW-2 and PW-3 informed the police station from where PW-4 HC Monu Kumar came and he arrested both the accused persons in FIR No. 123/23 PS Shaheen Bagh. PW-4 recorded disclosure statement of both the accused persons, in which they disclosed their involvement in the present case and accordingly PW-4 informed the IO of the present case i.e. PW-6 ASI Praveen Kumar.
30. Prosecution examined PW-5 Gous Mohd., who was the Ahlmad of court of Ld. MM having jurisdiction over PS Shaheen Bagh, and he brought the judicial record of FIR No. 123/23 PS Shaheen Bagh and proved the arrest FIR No.112/2023 State Vs Aurangzeb & Anr. Page 10 of 28 memos, personal search memos and disclosure statements of both the accused persons and also proved seizure memo of mobile phone as Ex.PW-5/B and seizure memo of knife as Ex.PW-5/F. During cross-examination of above witnesses i.e. PW-2 to PW-6, nothing was elicited from them to show that accused persons were not arrested or mobile phone or buttondar knife were not recovered from them. So, it is proved that from the possession of accused Karan @ Kalu one mobile phone of make Techno Spark sky blue colour was recovered and from possession of accused Aurangzeb @ Sonu one buttondar knife was recovered.
Whether recovered Mobile Phone is the Stolen Case Property of present case
31. The E-FIR i.e. Ex.P1 of the present case was registered on 19.03.2023 in which complaint about robbing of complainant's mobile phone of Techno company having mobile No. 8441875450 was mentioned. On 20.03.2023, next day to registration of FIR, detailed statement of complainant / PW-1 Rakesh Moond i.e. Ex.PW-1/A was recorded by the IO / PW-6 ASI Praveen Kumar in which complainant gave the IMEI number details of the stolen mobile phone i.e. IMEI no. 355590474993087, 355590474993095. Complainant also provided picture of box of mobile phone to IO on which IMEI no. 355590474993087, 355590474993095 are mentioned and it is part of chargesheet. Two days after registration of E-FIR in present case i.e. on 21.03.2023, mobile phone was recovered from possession of accused Karan @ Kallu in FIR No. 123/23 PS Shaheen Bagh. In Ex.PW-2/A i.e. seizure memo of the mobile phone Techno Spark IMEI no. 355590474993087, 355590474993095 is mentioned.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 11 of 2832. Prosecution has examined PW-9 i.e. Nodal Officer of Airtel who proved the CDR and CAF of mobile phone No. 8529731440 and as per CAF Ex.PW- 9/A, mobile number was issued in the name of complainant Rakesh Moond. The prosecution has also proved the photograph of complainant alongwith the stolen mobile phone, which he got released on superdari from the court as Ex.P3. The above documents proves beyond doubt that mobile number 8529731440 was issued in the name of PW-1 / complainant Rakesh Moond. The mobile phone got robbed from the complainant PW-1 / Rakesh Moond on 19.03.2023 and was recovered from accused Karan @ Kalu on 21.03.2023. Sequence of events as mentioned above are as follows that first mobile phone was robbed then complainant provided details to police and after 2 days it was recovered from accused. So, there are no chances of manipulation or false recovery of mobile phone from accused Karan @ Kalu.
33. As per Section 114 Illustration (a) of Indian Evidence Act, 1872 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; therefore, accused Karan @ Kalu is either the robber who robbed the PW-1 / complainant or is the receiver of the stolen property.
Appreciation of complainant evidence
34. PW-2 to PW-6 were police witnesses, PW-7 and PW-9, is the same witness who got examined twice, was a formal witness, who proved CAF and CDR and PW-8 was expert witness, who proved MLC of complainant. None of them witnessed the incident and deposed about it. The only witness who deposed about the main incident is the PW-1 complainant / injured himself.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 12 of 2835. It is a settled law that as a general rule the court can and may act on the testimony of a single witness provided, he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. But if there are doubts about the testimony, the court will insist on corroboration. It is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
i) Wholly reliable.
ii) Wholly unreliable.
iii) Neither wholly reliable nor wholly unreliable.
36. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interested-ness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
37. In Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). The Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided, he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But if there are doubts about the testimony the courts will FIR No.112/2023 State Vs Aurangzeb & Anr. Page 13 of 28 insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honored principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
38. Law of Evidence does not require any particular number of witnesses to prove a relevant fact. In the case of Joseph Vs. State of Kerala [AIR 2003 SC 507(510)], Hon'ble Apex Court held: -
"...................Section 134 of the Indian Evidence Act provides that no particular number of witnesses in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eye-witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eye- witness, it should be wholly reliable."
39. It is also important to understand who can be said to be a "sterling witness". Sterling witness has been explained by the Hon'ble Apex Court in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, para 22:
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and FIR No.112/2023 State Vs Aurangzeb & Anr. Page 14 of 28 under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged"
40. So, solitary eyewitness in the present case is the complainant / injured himself and prosecution case can be placed solely on his testimony, if, it is found to be reliable, cogent, credible and trustworthy.
41. In recent judgment "Balu Sudam Khalde Vs. The State of Maharashtra"
dated 29.03.2023 in Criminal Appeal No. 1910 of 2010, Hon'ble Supreme Court of India has held at para 25, 26 and 27 that :-
"Para 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"(I). While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.FIR No.112/2023 State Vs Aurangzeb & Anr. Page 15 of 28
(II). If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(III). When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts 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 the court is justified in jettisoning his evidence.
(IV). Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(V). Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(VI). By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(VII). Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(VIII). The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(IX). By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(X). In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot FIR No.112/2023 State Vs Aurangzeb & Anr. Page 16 of 28 expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(XI). Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(XII). A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
(XIII). A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)] Para 26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration FIR No.112/2023 State Vs Aurangzeb & Anr. Page 17 of 28 or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
Para 27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
42. In view of the above directions, the testimony of PW-1, who is the sole injured eyewitness of the first incident will be appreciated. Counsel for the accused persons have stated that the case of the prosecution is that two assailants assaulted the complainant and robbed his mobile phone but in MLC Ex.D2 in alleged history given by the complainant, physical assault by three persons is mentioned and this shows that complainant not a reliable witness. On the other hand, Ld. Addl. PP for state submits that complainant in his cross- examination as PW-1 gave the explanation about mentioning three persons during his treatment that due to fear by mistake he told doctor that he was assaulted by three unknown persons but he was assaulted by two persons. The hospital was nearby the place of incident and within 3-4 minutes of the assault, complainant got himself medically examined and there is fair chances that at that time he was under fear, because of what happened with him, and pain FIR No.112/2023 State Vs Aurangzeb & Anr. Page 18 of 28 because of which he instead of 2 mentioned 3 unknown persons to the doctor. This discrepancy in MLC is not so incompatible with the credibility of his testimony in the court, so, to jettison his evidence. It is a minor variation or infirmity which is properly explained by the complainant in his testimony.
43. Counsel for the accused submitted that credibility of the PW-1 / complainant is shaken as in his complaint Ex.PW-1/A he had stated that he was stabbed only once but in the court he deposed that he was stabbed twice. The complainant got medical treatment within 3-4 minutes of the incident and in MLC it is mentioned that he has received 2 injuries and complainant's photographs Ex.P1 also shows that he has received two wounds. Whether he has received one wound or two wounds in the incident is immaterial as it only shows that complainant got injured during the incident. It is a minor discrepancy which does not affect the merits of the case.
44. Counsel for the accused persons argued that it is admitted by the complainant in his cross-examination that IO made video call to him to identify the accused persons and he went to the police station and identified them there. This shows that accused persons were previously shown to the complainant by the IO during investigation and therefore, it raises doubt on the investigation. No doubt complainant has admitted that he was shown the picture of accused persons by the IO for identifying them but this was done after the arrest of the accused persons in FIR No. 123/23 PS Shaheen Bagh i.e. on 22.03.2023.
45. But the detailed complaint Ex.PW-1/A was given on 20.03.2023 i.e. one day prior to arrest of accused persons in which complainant gave the physical description of the robbers, which matches with the physical description of the FIR No.112/2023 State Vs Aurangzeb & Anr. Page 19 of 28 accused persons. As photographs of the accused persons were shown by the IO to the complainant before conducting of TIP, therefore, court is not taking any adverse inference for refusing to participate in Test Identification by the both the accused persons.
46. In view of the above discussion, except minor contradictions and one embellishment regarding number of persons in MLC, which are natural to occur and fully explained, the veracity of testimony of complainant could not be shaken and stood the test of cross-examination and can be relied upon. Further, no ground was put forward to show why complainant will falsely implicate the accused persons and allow real culprits to escape.
Identity of Accused Persons
47. In his complaint dated 20.03.2023 i.e. Ex.PW-1/A, complainant has given the physical description of persons who robbed him. As per Ex.PW-1/A, one tall lean and fair boy took out his mobile and other short and fair boy, whom he bite on hand, stabbed him while committing robbery. In the court both accused persons were identified by the complainant / PW-1 and he specifically stated that boy wearing black sweater and fair in colour and shorter in height stabbed him with knife and taller boy of dark colour took out mobile phone from his pocket. The photographs of both the accused persons is also filed alongwith the chargsheet, which also corroborates the description of both the accused persons given by the complainant in his previous statement Ex.PW-1/A.
48. Complainant not only identified accused persons but also gave their specific roles. The identification of both the accused persons in the court by FIR No.112/2023 State Vs Aurangzeb & Anr. Page 20 of 28 the complainant is corroborated by his previous statement Ex.PW-1/A and the photograph of accused persons. When complainant identified the accused persons in the court, court also observed that the name of the shorter boy is Aurangzeb and name of taller boy is Karan.
49. Additionally, in Ex.PW-1/A, complainant has specifically stated that during the robbery he bite on the hand of one of the robbers and in the MLC of accused Aurangzeb i.e. Ex.PW-8/A, doctor has observed on local inspection that there is a bite mark on the right hand dorsal side. Medical evidence also corroborates the description given by the complainant in Ex.PW-1/A. No doubt in his cross-examination PW-8, who is the doctor, admitted that he cannot tell from MLC whether bite mark injury is fresh or old or it was caused by animals or not ? Court is not concerned whether bite mark is caused by animal or human, but what is important is that bite mark was found at the place which was mentioned by the complainant in his complaint Ex.PW-1/A.
50. Accused persons were identified by the complainant in the court after giving their physical description and their specific role in incident, which matches with the physical description and role assigned to them by the complainant in his first complaint dated 20.03.2023 i.e. Ex.PW-1/A. Ex.PW- 1/A is corroborated by medical evidence Ex.PW-8/A and also the physical description given in Ex.PW-1/A matches with the photographs of the accused persons filed in the chargesheet. Considering all the above evidence, court has no hesitation to come to the conclusion that both accused persons were correctly identified by the complainant as the robbers who committed the incident with him.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 21 of 2851. Till now prosecution is successful in proving that testimony of complainant is reliable, credible, trustworthy and both accused were involved in the incident and stolen mobile phone of complainant was recovered from possession of accused Karan @ Kalu.
Discussion regarding offence u/s. 394 IPC
52. Accused persons are charged for the offence of robbery which is defined u/s. 390 IPC which is reproduced hereinbelow :
"390. Robbery - In all robbery there is either theft or extortion. When theft is robbery -- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.................."
In every robbery there is either theft or extortion and perusal of the case shows that in the present case theft is involved. Sec. 378 IPC defines the offence of theft which is reproduced herein below :
53. "Sec.378 - Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking,is said to commit theft.
Now it is to be seen whether the abovesaid ingredients are satisfied by the evidence produced by the prosecution.
54. Ex.P1 i.e. E-FIR Ex.PW-1/A i.e. first statement of complainant Rakesh Moond and Ex.P2 i.e. MLC of complainant proves that he was assaulted by some persons.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 22 of 2855. The mobile phone of the complainant is a movable property and it was taken away from the possession of the complainant without his consent and only purpose of taking these items from the possession of the complainant, was to cause wrongful gain to the assailants and it proves the dishonest intention of the persons who assaulted complainant. Therefore, all the ingredients of the offence of theft have been proved.
56. As per Sec. 390 IPC theft is robbery when in committing the theft, hurt or wrongful restrain have been voluntarily caused to the complainant. From the testimony of PW-1 and from MLC Ex.D2 and photographs of complainant, which shows two wounds, it is proved that hurt was caused to the complainant during theft. Therefore all the ingredients of the offence of robbery as defined u/s. 390 IPC are satisfied.
57. Accused persons are charged with is for offence u/s. 394 IPC. Sec.394 IPC is reproduced hereinbelow :-
"394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily 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."
So, the main ingredients of the Sec.394 is that either robbery or attempt to robbery is committed and while doing it hurt was caused to the victim and it was caused voluntarily by the persons, who committed the robbery or attempted to commit the robbery.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 23 of 2858. Ex.P2 is the MLC of the complainant which was made immediately after the incident and in the MLC it is mentioned that complainant has two lacerated wounds over his shoulder. Ex.P1 is the photograph of the complainant which clearly shows complainant having two wounds on his left shoulder. All these documentary evidences corroborates testimony of PW-1 and proves that the complainant has received injuries i.e. he got hurt. The hurt was caused to him while robbery was committed with him.
59. The voluntariness of an act is to be adduced from the means employed to commit the act. In the present case, PW-1 is the complainant / injured of the case and he specifically deposed that one of the accused tried to snatch phone from him and when he protested, one accused took out knife and stabbed on his shoulder twice and he bite on his hand and other accused took out mobile from his pocket and both of them ran away. So, this injury which is caused when the complainant resisted the accused persons can only be caused intentionally, which proves that injury was caused voluntarily.
60. So, all the ingredients of the offence u/s. 394 IPC are proved, therefore, prosecution is successful in proving that both the accused persons in furtherance of their common intention committed the offence u/s. 394/34 IPC, therefore, both accused persons are convicted for the offence u/s. 394/34 IPC.
Discussion regarding offence u/s. 397 IPC
61. Next offence for which the accused was put to the trial was offence u/s. 397 IPC which is reproduced hereinbelow :
"Sec.397. Robbery, or dacoity, with attempt to cause death or FIR No.112/2023 State Vs Aurangzeb & Anr. Page 24 of 28 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."
62. In "Shravan Dashrath Datrange v. State of Maharashtra", (1997) 2 Crimes 47 (Bom), it is held that an act would only fall within the mischief of this section if at the time of committing robbery or dacoity the offender -
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person; or
(c) attempts to cause death or grievous hurt to any person;
63. From the discussion done till now, it is proved by the prosecution that robbery was committed with the complainant and during robbery hurt was caused to him. As per the prosecution, hurt was caused by knife but Ld. Counsel for the accused has submitted that during investigation the alleged knife which was recovered from the accused Aurangzeb @ Sonu in FIR No. 123/23 PS Shaheen Bagh is not proved to be used in the present case and it is falsely planted over the accused person. On the other hand, Ld. Addl. PP submits that complainant has specifically deposed that accused took out knife from his pocket and stabbed him.
64. The prosecution has not brought any evidence to connect the alleged knife Ex.P2 recovered from the accused Aurangzeb @ Sonu in FIR No. 123/23 PS Shaheen Bagh with the present case. The knife was not sent to the FSL to show that it had any blood of PW-1 / complainant Rakesh to connect it with the present case. Only evidence is that complainant has identified the knife as Ex.P2 in the court when the same was shown to him. As per the complainant, the incident occurred around 8:00 p.m. and it was dark and he was going on foot to join his night duty. As per the details of the incident given in Ex.PW-
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 25 of 281/A, it must not have taken more than 2-3 minutes for the whole incident to occur. As per the incident described in Ex.PW-1/A, the accused took out knife from his pocket and stabbed on the shoulder of complainant, so, the knife would have only been visible to the complainant for few seconds and that too when the place was dark. Hence, it was not possible for the complainant to notice any unique identification mark of the knife. Neither he has mentioned any unique identification mark of knife in his complaint nor deposed about it in the court, when he identified knife as Ex.P2, unlike he did when he identify the accused persons. It raises doubt about the identification of knife and it appears that complainant has identified the knife only because same has been shown to be recovered from the accused persons, who have beaten him and robbed him and who are identified by him. Considering all the above facts, reasonable doubt have been raised regarding the identification of the knife Ex.P2.
65. Continuing our discussion further qua use of knife, in MLC Ex.D2 the injuries mentioned are 2 x 2 cms lacerated wounds over left scapular area and 2 x 2 lacerated wounds over back of left shoulder and nature of injuries is given as simple. As per the PW- 1, injuries on his shoulder were caused by knife which is a sharp weapon and sharp weapon causes incised wound, which is a clean cut. But as per his MLC Ex.D2, injuries on his shoulder are not incised but lacerated wound. Considering that no sharp incised wound was caused to the complainant and also identification of the knife by the complainant in the court is doubtful, therefore, the knife Ex.P2 alleged to be recovered from accused Aurangzeb @ Sonu in FIR No. 123/23 cannot be connected with the present case, accordingly, prosecution failed to prove that PW-1 was attacked with knife or any deadly weapon or injuries caused to him are of grievous nature.
66. So, main ingredients of offence u/s. 397 IPC that either a deadly weapon has been used or grievous injury has been caused while committing robbery could not be proved, therefore, prosecution has failed to prove that offence u/s.
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 26 of 28397 IPC was committed. Accordingly, accused Aurangzeb is acquitted for the charge of the offence u/s. 397 IPC.
Discussion regarding offence u/s. 411 IPC
67. Accused Karan @ Kalu is charged for the offence u/s. 411 IPC. As discussed above, in view of the Section 114 Illustration (a) of Indian Evidence Act, accused can either be a robber or receiver of the stolen goods. Calcutta High Court in criminal appeal no. 67 of 2006 titled as "S. L. Eklash Vs. State of West Bengal" decided on 1 April 2010, has observed that :-
"In Section 114 Illustration(1) of the Evidence Act the words "either the thief or has received goods" and more particularly, the word "or"
postulates that both the presumptions cannot be drawn simultaneously. This appears to be a pointer to the proposition that one cannot be convicted with both theft and for receiving or retaining stolen property. Section 411 nor Section 414 of the IPC can be applied to the original theft of the property concerned. No person can receive for himself, nor does a person assist himself in concealing. Thus, it appears that simultaneous conviction for robbery and receiving or retaining stolen property by commission of robbery is not permissible."
68. The act of dishonest removal constitutes dishonest reception and so the thief does not commit the offence of retaining stolen property merely by continuing to keep possession of the property he stole. The theft and taking and retention of stolen goods form one and the same offence and cannot be punished separately. A person cannot be convicted under Section 411 IPC in respect of property for which he himself has been convicted of the principal offence i.e. theft. The theft and taking and retention of stolen goods form one and the same offence, and cannot be punished separately. When the chief offence charged and proved by the evidence is theft, the fact of the stolen property being found in the possession of the offender should be considered as a portion of the evidence by which the chief offence is proved. As accused FIR No.112/2023 State Vs Aurangzeb & Anr. Page 27 of 28 Karan @ Kalu is found guilty for the offence under Section 394 IPC, which is higher form of Sec.379 IPC, therefore, in view of above discussion accused Karan @ Kalu cannot be convicted for the offence under Section 411 IPC and is liable to be acquitted under Section 411 IPC.
69. Accordingly, both accused Aurangzeb @ Sonu and Karan @ Kalu are convicted only for the offence u/s. 394/34 IPC.
Announced in open Court today (Vipin Kharb)
on 11.09.2024 Additional Sessions Judge-07
South-East, Saket Courts,
New Delhi
FIR No.112/2023 State Vs Aurangzeb & Anr. Page 28 of 28