Delhi District Court
Sc No. 58415/16 , Fir No. 27/14 Ps. Knk ... vs . Sant Ram Page No. 1 on 26 July, 2017
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................................58415/16
FIR No. 27/14
PS KNK Marg
U/s: 394/397 IPC &
25/27/54/59 Arms Act
State
Versus
Sant Ram S/o Sh. Udal
R/o Jhuggi Village Hiader Pur, Delhi
Date of institution: 13.04.2014
Judgment reserved on: 24.07.2017
Judgment delivered on: 26.07.2017
ORDER/JUDGMENT:
Acquitted U/s 394/397 IPC &
25/27/54/59 Arms Act.
J U D G M E N T
1.Briefly stated the allegations against the accused Sant Ram, as per prosecution case, are that on 06.01.14 at about 04.40 p.m, at Sector13, near Ganda Nala, near Jhang Apartment, near park, within the jurisdiction of PS KNK Marg, he committed robbery with complainant Arun Kumar and in order to commit robbery he used knife to put him under fear and hit the complainant with such knife and also with stone, thereby causing injury to him and thus he had committed the offences punishable u/s 394/397 IPC.
SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 1Also that he was found in possession of one buttondar knife of the description as prescribed in the notification of Delhi Administration No. F/13/411/79/HOME (G) dated 29.10.1980 without any license and the knife was used in the commission of the robbery and thus, committed an offence punishable u/s 25/27/54/59 Arms Act.
2. The facts, in brief, of the prosecution case, as brought on record, are that, one Sh. Arun, the complainant got recorded his statement on the allegations that on 06.01.2014, he parked his rickshaw near the park in front of Jhang Apartment, in the care and custody of his mother and brother, who were sitting in the park and had gone to Ganda Nala for easing out and when he was returning back, one boy stopped him and taken out one knife and on the point of such knife asked him to deliver all his money, threatening him to kill and at his resistance, the boy gave him a knife blow on his right hip and when he tried to escape he hit him with stone on his head and on his raising alarm, the public persons caught him & gave beatings and his mother had taken him to BSA Hospital.
3. As per the chargesheet filed against the accused, on receiving information by DD No. 31A, the investigation was entrusted to one ASI Rawat, who along with Ct. Ramphal proceeded for the spot of occurrence where the public persons have apprehended the accused and handed over to the police who conducted his personal search SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 2 and a buttondar knife was recovered from his possession and then the police had taken the accused in the hospital where the complainant identified the accused and IO recorded the statement of complainant, got the FIR No. 27/2014 registered with PS KNK Marg u/s 394/397 IPC & 25/57 Arms Act and then the accused was arrested in this case.
On completion of investigation, final report/charge sheet under section 173 Criminal Procedure Code ( hereinafter referred as Code) was submitted against accused Sant Ram, in the court for the offences u/s 394/397 IPC and 25/27 Arms Act, for trial of the accused.
4. After compliance of the provisions of section 207 of the Code, the case was committed to the court of Sessions against the accused namely Sant Ram for the offences punishable under section u/s 394/397 IPC & 25/27 Arms Act and accused was sent for trial.
5. Vide order dated 07052014, the Predecessor Court of Sh.
Rajnish Bhatnagar, framed charges against the accused Sant Ram for the offences under section 394/397 IPC & 25/27/54/59 Arms Act, to which the accused has pleaded not guilty and claimed trial for all the offences charged against him. Hence the trial had commenced.
SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 36. To substantiate its case for the offences alleged, the prosecution has examined a total number of 12 prosecution witnesses viz.,
a) Complainant/Eye witnesses Sh. Arun, PW1, the complaint, Sh. Arjun, PW4, the brother of the complainant, Sh. Raj Kumar PW5, who were the material key witnesses of the prosecution to prove the allegations levied against the accused and they have exhibited the complaint Ex. PW1/A, Knife Ex. P1, clothes of complainant Ex. P2, sketch of the knife Ex. PW4/A, seizure memo of the knife Ex.PW4/B, arrest memo of the accused Ex. PW4/C, personal search of the accused Ex. PW4/D
b) Medical Witnesses Sh. Brajesh Narain Singh, PW2, Dr. Vijay Dhankar, PW10 & Dr. Pawan Kumar, PW11, were medical witnesses. PW3 has exhibited the MLC Ex. PW3/A. PW10 exhibited his opinion report Ex. PW10/B and sketch of clothes and knife Ex. PW10/A. PW11 was the doctor who has conducted the medical examination of complainant Sh. Arun and prepared the MLC Ex. PW3/A.
c) Witnesses of Investigation HC Rambharose, PW1, MHCM, to prove the deposit entry of the case property Ex. PW2/A, copy of entry register regarding sending of case property to the BSA Hospital for opinion and redeposition of the same Ex. PW2/B & PW2/C, copy of RC register and receipt regarding sending of pullandas & sample seals to FSL Rohini Ex. PW2/D & PW2/E, FSL report Ex. PW2/F, Serological report Ex. PW2/G. HC Virender Kumar, PW7, to prove the FIR Ex. PW7/A, Endorsement on the rukka Ex. PW7/B, and certificate u/s 65 B of the Indian Evidence Act Ex. PW7/C, were the formal witnesses who came to prove the documents on record.
SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 4Whereas ASI Karambir, PW6, Ct. Ram Dev, PW8 & Insp. Anil Kumar, PW9, ASI Rawat Singh, were the witnesses of investigation and had come to the witness box to prove their role played by them during the course of investigation and they have exhibited the negatives and photographs Ex. PW6/A (colly), & PW6/B (colly), seizure memo of blood stained earth and earth control Ex. PW8/A, disclosure statement of the accused Ex. PW8/B, Crime team report Ex. PW9/A, DD No. 31A Ex. PW12/A, Rukka Ex. PW12/B, Seizure memo of pullanda handed over by doctor Ex. PW12/C, Site plan Ex. PW12/D.
7. On the evidence of the prosecution being closed, the statement of the accused namely Sant Ram was recorded under section 313 of the Code through which he had denied all the incriminating/material evidence put to him and he pleaded his innocence and false implications, however, he did not examine any witness in defence.
8. During the course of arguments, on behalf of State, Sh. V.K. Negi, Ld. Addl. PP has submitted that the injured namely Sh. Arun, examined as PW1 who was the complainant and the eye witness namely Sh. Arjun, examined as PW3 who was the brother of complainant have supported the prosecution case and hostility of one Sh. Raj Kumar examined as PW5, another eye witness who had taken the accused to the Hospital does not affect the prosecution case on the face of testimonies of PW1 & PW3 and that the discrepancies in the testimonies of witnesses to their previous statements i.e. the complaint and statements u/s 161 SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 5 Cr.PC. are normal gestures of human beings who can forget the facts due to lapse of time and that otherwise the prosecution has successfully proved its case beyond reasonable doubt against the accused for the offences alleged and also the recovery of knife, a contraband item as per notification of Delhi Administration, at the time of occurrence was established and on such point even the testimony of police witnesses are supported by PW3, thereby proving the offences alleged against the accused.
9. Sh. S.S. Bagga, Ld. Counsel for the accused has submitted that there are material discrepancies, contradictions, improvements and exaggerations in the testimonies of Sh. Arun, PW2, the complainant, Sh. Arjun, PW4, the brother of the complainant on the point of identity of the accused to make their versions shaky and cannot be relied upon.
Also that Sh. Raj Kumar, PW5, who was the alleged eye witness and had taken the injured to the Hospital in his rickshaw has categorically deposed in the court that he could not say as to who had inflicted injuries to the injured Arun and that he had not met any relative of the injured at spot till the time he removed the injured to the Hospital.
Also that he deposed that the brother of the accused had not met him on the spot, however a crowd of public was there inside and outside the park.
SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 6It was submitted that the alleged eye witness namely Sh. Arjun was a stock witness of the prosecution & he being the real brother of the injured was an interested witness who was interested in the prosecution of the accused.
Further that another alleged eye witness Sh. Raj Kumar has not supported the case of the prosecution and thus the case of the prosecution is under the shadow of doubts due to discrepancies in the testimony of the complainant on the point of number of assailants and the contradictions, improvements and exaggerations in his testimony are fatal to the Prosecution case.
Thus, it is submitted on behalf of accused that due to these discrepancies, contradictions, improvements and exaggerations occurred in the testimonies of prosecution witnesses, the accused is entitled for the benefit of doubt for the alleged charges levied against the accused.
10. Before proceeding further, to appreciate the evidence on record, as per the settled legal propositions, the prosecution, for establishing the offences alleged under sections 394/397 IPC & 25/27/54/59 Arms Act, against the accused Sant Ram, facing trial before this court, has to prove the following ingredients:
For offence under section 394 IPC
i) that the accused committed or attempted to commit robbery;
ii) that the accused voluntarily caused hurt in doing so SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 7 For the offence under section 397 IPC
i) the commission of robbery
ii) that the accused used a deadly weapon or caused grievous hurt; or attempted to cause death or grievous hurt;
iii) that the above acts were done during the commission of robbery & For the offence under section 25/27/54/59 of Arms Act, the prosecution has to prove, that:
i) the accused was in possession of the arms ( the knife in the present case).
ii) the knife was of the description that was within the ambit of contraband weapon in the area/territory in which it was found in possession of the accused.
iii) that he has used such arm during occurrence.
11. To establish its case against the accused, the prosecution is basically relying heavily on the testimonies of Sh. Arun, PW1, the injured, the complainant, Sh. Arjun, the brother of the injured/eye witness, PW4 & Sh. Raj Kumar, another eye witness , PW5, who were the material star witnesses of the prosecution being the injured and eye witnesses of the occurrence.
12. The relevant extracts of the testimony of Sh. Arun, PW1, the complainant/injured, is extracted as below:
On 06.01.2014, my mother came on her work and my younger brother Arjun also accompanied her. At about 04.30 p.m, I parked my cycle rickshaw near Jhang Apartment, near park. My younger brother Arjun was sitting in the park. I went to ease myself at nala besides the park.
After easing myself when I was returning, two boys came near to me and showed me knife and threatened me. I was carrying money in my pocket. They asked money from me by showing knife. One of them caught hold of me and tried to take out money from my pocket. I raised noise. The other boy gave knife blow on my left thigh.SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 8
Public persons including my brother reached there. The boy who had caught hold of me, fled away from the spot and the boy who gave knife blow to me was caught at the spot.
I cannot say whether the accused, present in the court today, is the same person who had given knife blow to me at the time of committing robbery. I have seen him for the first time at the time of incident and several months have been passed since the incident.
I was shifted to BSA Hospital and my statement was recorded.
On being hostile, he was crossexamined on behalf of the State and he had deposed that, It is correct that on 06.01.2014 at about 04.40 p.m at Sector13, near ganda nala, near Jhang Apartment, near park, accused Sant Ram,present in the court today, had committed robbery and in order to commit robbery he used deadly weapon i.e. knife and hit me with knife and stone.
It is correct that my statement Ex. PW1/A was recorded by the police at BSA Hospital and the same was read over to me and I found the same correct.
It is correct that the accused Sant Ram, present in the court today (correctly identified) who was apprehended at the spot was taken to the same BSA Hospital by the police or that while giving the statement I identified him being the robber who by using knife intend to rob me and also caused injury to me with stone.
It is correct that on the last date of my deposition I showed my inability to identify the robber out of fear of him.
He was further crossexamined on behalf of the accused and he had deposed that, It is correct that yesterday I came in the court for deposition and IO was also present in the court. It is wrong to suggest that IO had asked me to identify the accused in the court at the time of my deposition.
IO had only asked me to come in the court tomorrow i.e. 25.11.2014. When my statement was recorded for the first time in the court, three persons had accompanied me to the court and my mother was sitting downstairs.SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 9
On the last date of deposition i.e. 01.07.2014 I had deposed before the court with my own free will. VOL.(because of fear of the accused).
I had not brought this fact to the knowledge of the Presiding Officer.
Till date, nobody from the family or friend of the accused had threatened me or my family.
13. It is observed that PW1, Sh. Arun, the complainant/injured, in his complaint Ex. PW1/A has stated that On 06.01.2014, he parked his rickshaw near the park in front of Jhang Apartment, in the care and custody of his mother and brother, who were sitting in the park and had gone to Ganda Nala for easing out and when he was returning back, one boy stopped him and taken out one knife and on the point of such knife asked him to deliver his all money, threatening him to kill and at his resistance, the boy gave him a knife blow on his right hip and when he tried to escape he hit him with stone on his head and on his raising alarm, the public persons caught & beaten him and his mother had taken him to BSA Hospital.
Whereas in his testimony as PW1 in the court he had resiled from his earlier statement given to the police and had deposed that, After easing myself when I was returning, two boys came near to me and showed me knife and threatened me. I was carrying money in my pocket. They asked money from me by showing knife. One of them caught hold of me and tried to take out money from my pocket. I raised noise. The other boy gave knife blow on my left thigh.
Public persons including my brother reached there.
The boy who had caught hold of me, fled away from the spot and the boy who gave knife blow to me was caught at the spot. I cannot say whether the accused, present in the court today, is the same person who had given knife blow to me at the time of committing robbery.
I have seen him for the first time at the time of incident and several months have been passed since the incident.
SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 1014. Thus, on appreciation of evidence of PW1, the complainant/injured, it is observed that he has deposed the occurrence in entirely different manner in the court to that of the one stated in his complaint Ex. PW1/A regarding the number of accused persons and regarding the identity of the accused and also the manner of occurrence as he has taken an absolutely different stand to that of his previous statement/complaint Ex. PW1/A given to the police, improving certain material facts on the vital points, particularly on the point of number of assailants involved in commission of the crime as he has stated in his previous statement that one boy stopped him and taken out one knife and on the point of such knife asked him to deliver his all money, threatening him to kill and at his resistance, the boy gave him a knife blow on his right hip and when he tried to escape he hit him with stone on his head.
Whereas, he has contradicted in his testimony by deposing that two boys came near to him and showed him knife and threatened him. He was carrying money in my pocket. They asked money from him by showing knife. One of them caught hold of him and tried to take out money from his pocket. He raised noise. The other boy gave knife blow on his left thigh.
15. Thus, the complainant/injured on whom the prosecution is heavily relying has changed number of assailants from one to two and also the manner in which he was inflicted injuries. In his SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 11 complaint he has reported that the boy who stopped him and threatened with knife has asked his money to be handed over but in his testimony he has deposed that one of the two boys caught hold of him and tried to take out money from his pocket and the other boy gave knife blow on his left thigh. According to his complaint, the boy who gave knife blow on him also hit him with stone but in his testimony he had omitted that he was hit with stone on his head.
Also on the point of identity of the accused his version was shaky and needs to be discarded due to change of his version/stand at different places i.e. in his chiefinexamination, then in crossexamination by the State and thereafter in cross examination, conducted on behalf of the accused, in view of the law settled in case titled as Raj Kumar Vs. State, 1997 (2) CCC 292 DB Delhi. The explanation tendered was that he had forgotten the identity of the accused due to lapse of time as several month have been passed since the incident but when he was crossexamined by the State he has identified the accused on 25112014 whereas he had forgotten the face of the accused at the time of his examination conducted on 01072014.
16. Thus, the testimony of PW1 is full of contradiction, improvements, exaggerations and omissions to his complaint Ex. PW1/A to shake his version to a great extent and the discrepancies in his testimony were material in nature as these were on the point SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 12 of the identity of the accused, number of assailants, the activities of the accused and the manner of occurrence and also about the weapons vide which he was inflicted injuries by the assailants.
17. Also in case titled as State Vs. Sait @ Krishana Kumar, (2008) 15 SCC 440, the Hon'ble Apex Court has opined that, 'In case, the complainant in the FIR or the witness in his statement under section 161 Cr.PC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded'.
18. Further, the prosecution has produced Sh. Arjun, PW4 and Sh. Raj Kumar, PW5 to support the complainant, as the eye witnesses of the occurrence.
The relevant extracts of the testimony of Sh. Arjun, PW4, the eye witness/brother of the injured, is extracted as below:
'On 06.01.2014, I was sitting in the park alongwith my mother. My brother Arun is a rickshaw puller and my mother is working as a maid in Vikrant Apartment, Sector13, Rohini. My brother Arun was also with us in the park. My brother Arun went for urination to the naala leaving his rickshaw behind.
After urinating when he was returning back to the park, two boys started robbing my brother Arun at the point of knife and were demanding cash. They gave knife blows to my brother Arun and tried to flee away, we chased the aforesaid two boys and they were caught and they were given beatings by the public. One of the boys managed to escape from the spot and the other boy was handed over to the police, who arrived at the spot.
19. On appreciation of the evidence of PW4 Sh. Arjun, the brother of the injured/eye witness, it is observed that as per his testimony, two boys started robbing his brother Arun, at the point of knife and SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 13 they were demanding cash & they gave knife blows to his brother Arun and tried to flee away and they chased the aforesaid two boys and they were caught but he has testified the occurrence in entirely different manner in the court to the version that was given in his statement recorded u/s 161 Cr.PC given to the police, thereby he was not only changing the number of assailants, but even the manner of stabbing of the injured Arun and also the way in which the accused was apprehended.
In the statement recorded u/s 161 Cr.PC he has stated that, 'I heard the noise of my brother and I saw that one boy was giving knife blow to my brother and the people sitting in the park went there and they caught the accused and beaten him' .
20. Thus, on appreciation of evidence certain contradictions, improvements, exaggerations & omissions were noted, which were material in nature, in the testimony of this eye witness PW4, namely Arjun who was the brother of the injured. It was observed that he had not only resiled from his earlier version given to the police & of his statement recorded u/s. 161 Cr.P.C., but he has stated the occurrence in absolutely different manner, particularly regarding the number of assailants and the manner in which the injuries were caused to the injured, his brother. His testimony was not having material discrepancies with his own version given to police but also with the testimony of the injured/complainant examined as PW1.
Also as per his testimony, when both the boys including the SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 14 accused were caught they were given beatings by the public but as per his statement recorded u/s 161 Cr.PC one boy who was stabbing his brother was caught hold by him of with the help of public who gave beatings to him.
Further, as per his testimony police reached on the spot within 5 to 7 minutes of apprehension of accused and one of the two boys managed to escape from the spot and the other boy was handed to the police who arrived at the spot. But in his statement recorded u/s 161 Cr.PC, not even a single word has been spoken about the presence of the police or handing over the accused to the police by the public or that one of the two boys had escaped from the spot. These facts are material discrepancies in the two versions given by this alleged eye witness.
21. Also accordingly to his statement made before the police, the injured, his brother was taken to the hospital by his mother with the help of the workers working in the apartment ( Vikrant Apartment), whereas as per his testimony as PW4, his brother was removed to the hospital by the police and one Raj Kumar accompanied him to the hospital.
Thus, the entire version of PW4, the alleged eye witness was full of material discrepancies with his previous version given to the police and recorded u/s 161 Cr.PC regarding number of assailants stabbed his brother Arun, the injured, the manner of occurrence in which the injured was inflicted injuries, the manner in which the accused was SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 15 apprehended, arrival and presence of the police and the manner in which the injured was removed to the Hospital, that shakes the testimony of PW4 and his version given to the police and in the court, thus the testimony of the witness PW4 does not inspire confidence on the point that he had witnessed the occurrence.
22. The said person namely Sh. Raj Kumar is mentioned on the medical record i.e. on MLC of injured Arun as the person who brought him to the Hospital but nothing is mentioned about the mother of the injured. Sh. Raj Kumar was examined as PW5 as one of the alleged eye witnesses of the prosecution. The relevant extracts of the testimony of Sh. Raj Kumar, PW5, is extracted as below:
I am a rickshaw puller. On 06.01.2014 at about 04.40 p.m after parking my rickshaw near the park, I went to the nala for urination.
I saw Arun lying on the ground in injured condition. I cannot say how he received the injuries. I took Arun to BSA Hospital in my rickshaw.
Public persons were present on the other side of the park and from the place where I saw the injured Arun. I straightaway took him to BSA Hospital. I had not met any relative of the injured at the spot till the time I removed him to the hospital. The mother of the injured met me outside the park. Brother of the accused had not met me there. The crowd was present inside and outside the park.
I with the help of one small boy lifted the injured and brought him inside the park and after that many persons gathered there and he was taken in the rickshaw to BSA Hospital. The crowd was watching as to who had received the injury. I cannot say why and who had inflicted injury to Arun.
I cannot say whether the accused Sant Ram present in the court today is the same robber.SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 16
23. Thus, from the evidence of this witness Sh. Raj Kumar, it is observed that the presence of this witness at the spot cannot be disputed as he was the person who had brought the injured Arun in his rickshaw and the documentary evidence Ex. PW3/A i.e. MLC of the injured corroborates this fact that he was the person who brought the injured to the hospital.
The testimony of this witness has categorically testified that he did not meet the brother of the injured on the spot of occurrence that makes the presence of Sh. Arjun, the brother of the injured examined as PW4, doubtful on the spot and it makes this witness/prosecution a stock witness rather than an eye witness. Otherwise also his testimony about the number of assailants and manner of assault was shaky and did not inspire confidence.
24. Further, it is very surprising that the brother of the injured, if was present on the spot of occurrence, but he had not accompanied his injured brother to the hospital who was taken by a rickshaw puller namely Sh. Raj Kumar on his rickshaw alone and there was none even to hold his brother in that rickshaw while taking him to the hospital and in the situation when his brother was having injuries on his vital parts of the body.
25. Further, as per injured Arun examined as PW1, the assailant after stabbing him with knife on his left hip also hit him with stone but PW4 his brother neither in his version given to the police u/s 161 Cr.PC nor in his testimony as PW4 narrated anything regarding hitting of his SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 17 brother with stone on his head by the assailants whether they were one or two.
Thus, it is full of doubts that this witness Arjun, examined as PW4, had even witnessed the occurrence.
26. Thus, it is observed that Sh. Arun, PW1, the complainant/injured, Sh. Arjun, PW4, the brother of the injured/eye witness and Sh. Raj Kumar, PW5, the eye witnesses have material omissions, contradictions and exaggerations and improvements in their testimonies.
27. Sh. Raj Kumar, PW5, the eye witness has completely resiled from his previous statement given to the police u/s 161 Cr.PC wherein he has stated that, Suddenly, I had heard the voice of crying and I had seen that one boy running away having a knife in his hand after giving blow to Arun with the intention of robbing him and that the people sitting in the park caught him and I took Arun to BJRM Hospital in my rickshaw.
Whereas, Sh. Raj Kumar in his deposition as PW5, has deposed in the court that, ''I saw Arun lying on the ground in injured condition. I cannot say how he received the injuries. ... ... ...
I cannot say why and who had inflicted injury to Arun. I was pulling the rickshaw so I did not ask the injured as to who had inflicted injury to him. Till today, I do not know why the injured was inflicted knife injury and by whom as I had not made any inquiries from the injured. My statement was not recorded by the police. ... ... ...
I cannot say whether the accused Sant Ram present in the court today is the same robber.
SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 1828. Thereby his version given in his statement Mark PW5/A was impeached during his examination as he did not support the prosecution case regarding the identity of the accused namely Sant Ram.
29. Thus, it is observed that the Sh. Arun, PW1, the complainant, Sh. Arjun, PW4, the brother of complainant & Sh. Raj Kumar, PW5, the eye witness, could not stand firm on their versions given in their earlier statements made before the police, on the material points about the number of assailant, identity of the accused person & the manner of the occurrence as stated in their previous statement and in the prosecution story.
30. It is observed that there are material omissions, contradictions and exaggerations and improvements in the testimony of PW1, the complainant, PW4 and PW5, the alleged eye witnesses, who were the star witnesses of the prosecution on which the case of prosecution was relied heavily and such material omissions, contradictions and exaggerations and improvements are vital in nature and was fatal to the prosecution case.
31. Further in the complaint Ex. PW1/A of the complainant PW1, it is stated that he was taken to the Hospital by his mother but the medical record contradicts it as his mother's name is not mentioned in the medical record, rather name of one Raj Kumar, PW5 is SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 19 mentioned as the person who brought the patient. Also her mother is not examined by the prosecution that calls for an adverse inference for keeping such material witness aback that in case if she would have been examined by the prosecution, she might not support the prosecution case.
All the witnesses PW1, PW4 & PW5 are not corroborating to each other either on the presence of assailants or on the manner in which the injured was caused injuries or he was taken to the Hospital because as per the testimony of PW5 Raj Kumar, he had taken the injured to the Hospital in his rickshaw as none of the relatives of injured Arun was there or accompanied him to the hospital and as per PW4, he was taken by police and as per PW1, he was taken by his mother. Thus, their testimonies are to be disbelieved and to be discarded, in view of the law settled in case titled as Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334)16, wherein the Hon'ble Supreme Court has observed that, 'The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt.
32. Further, in case titled as Sunil Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal Appeal No. 891/2004, the Hon'ble Supreme Court has observed that, SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 20 'Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence'.
33. Thus, in the abovenoted facts and circumstances, considering the material omissions, contradictions and exaggerations and improvements in the testimonies of PW1, PW4 & PW5, vital in nature , affecting the prosecution case, particularly on the point of the identity of the assailants & to the extent of denial of their activities as alleged, the testimony of PW1, PW4 & PW5 do not inspire confidence & this piece of evidence of the prosecution needs to be discarded.
34. The other evidence on record based on the circumstantial evidence only proves a chain of facts thereby stating that the injured received injuries in an incident that occurred on 06.01.2014 and that the accused was apprehended at the spot by the public. But the testimonies of injured and both the alleged eye witnesses were not corroborative to each other and even were found containing material discrepancies in their testimonies interse and with their previous versions as stated by them to the police in their statements recorded u/s 161 Cr.PC made before the police, on which the prosecution relied heavily and their versions did not inspire confidence to establish the necessary ingredients to prove any of the offeneces alleged u/s 394/397 IPC.
SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 2135. The above noted evidence placed on record could only put a suspicion over the accused on the basis of the disclosure statement, and the arrest of the accused at the spot allegedly apprehended by the public but it was not sufficient to reach to the conclusion with conviction & certainty of commission of the offences alleged by the accused as it is well settled principle that 'suspicion howsoever strong cannot take place of conviction'.
36. Further, as per the settled legal propositions of law, in the case titled as Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
37. The above settled principles of law when applied to the facts of instant case, it is observed that the prosecution is not able to SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 22 establish the facts beyond reasonable doubts through the testimonies of the eye witnesses/complainant or injured/eye witness or otherwise through independent evidence or through an unbroken chain of circumstantial evidence, to lead to only and only one hypothesis that the injured was caused injuries by the accused with the intentions to rob the complainant/injured.
38. Further, the accused Sant Ram has also been charged for additional offence under Section 25/27/54/59 Arms Act. To establish these charges, the prosecution has examined Sh. Arjun, PW4 and Ct. Ramdev, PW8 & ASI Rawat Singh, PW12 to prove the allegations of using the knife & possession of such knife with the accused Sant Ram.
39. On appreciation of evidence of PW4 Sh. Arjun, it is observed that he has testified in the court that two boys robbing his brother Arun at the point of knife and were demanding cash and both of them gave knife blows to his brother Arun.
Thus, for establishing the use of the 'knife' in commission of the robbery, this witness has assigned the role to two boys who, as per this witness, started robbing his brother Arun at the point of knife and both the boys gave knife blow to his brother but according to his statement recorded u/s 161 Cr.PC he has stated that he saw one boy was stabbing his brother.
Thus, due to his two versions stating entirely different facts SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 23 regarding number of persons 'used' the knife and the activities of the person/persons stabbing his brother with knife make his two versions shaky and without any certainty as to whether the accused Sant Ram had used the knife for stabbing the injured or he alongwith his associate robbed Sh. Arun, his brother, at the point of knife for demanding cash.
These facts create two hypothesis, one the accused was stabbing Arun, the brother of Arjun, with knife and was caught hold with the help of public, another hypothesis was that they were two boys both were using the knife for robbing cash from his brother Arun and both stabbed Arun with knife.
It is a settled proposition of law that in case of two hypothesis, the hypothesis favourable to the accused had to be adopted or a benefit of doubt be given to the accused.
Thus, apart from the material discrepancies of this alleged eye witness Arjun in his two versions, it was not certain as to whether who out of the two 'used' knife for robbing the injured Sh. Arun and was doubtful to prove these facts.
In his crossexamination as PW4, he had deposed that, 'I had not seen the accused inflicting the first knife injury to my brother. I heard the cries of my brother and saw that the accused was having knife in his hand and before he could give the second knife injury to my brother he was trying to escape alongwith his coaccused and was caught by me and public and at that time he was having the knife in his pocket'.
Thus, the witness PW4 has not only changed his complete version given to the police u/s 161 Cr.PC, in his testimony but even SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 24 did not stand firm on his version given in his chiefinexamination when he was put on the test of crossexamination on the point of using of the knife by the accused during occurrence and his testimony do not inspire confidence even on the aspect of using of knife by accused to prove the offence u/s 27 Arms Act, in view of the law settled in case titled as Raj Kumar Vs. State, 1997 (2) CCC 292 DB Delhi, wherein it was held that:
'Where the PW has been absolutely inconsistent and has been changing his stand from time to time, he can not be regarded as reliable and trustworthy witness of the occurrence'.
40. It is a settled principle of law that the prosecution has to prove the facts narrated in the prosecution story with preponderance of all probabilities and with moral certainty to reach to one and only one conclusion that leads to the one & only one conclusion that the accused has committed the offence alleged, for recording conviction and not even a single doubt be created on the facts established to result a benefit of doubt in favour of the accused and also that in case of two hypothesis established on the facts produced on record, the one favourable to the accused has to be taken into consideration.
41. Further, the presence of this witness Arjun on the spot at the time of occurrence is established as doubted, in view of above noted foregoing discussions when the evidence led by the prosecution was marshaled, on the face of testimony of one Raj SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 25 Kumar who had brought the injured to the Hospital and deposed that he found 'no relative' of the injured and with the help of some public persons available in the park he had taken the injured to the Hospital and his testimony also corroborated with the medical record mentioning his name as the person who brought the injured to the Hospital.
Further, in the complaint Ex. PW1/A the complainant has not mentioned the presence of his brother at the time of occurrence or even at the time when he was taken to the Hospital as he has reported that his mother has taken him to the hospital. In the given facts and circumstances it is also very surprising on the test of reasonable prudence that in case PW4 Arjun, the brother of the injured Arun and his mother were available on the spot then why any of them or both of them have not accompanied him to the hospital in the rickshaw pulled by one Raj Kumar who had testified in the court that he brought the injured in his rickshaw with the help of public and had taken the injured to the hospital alone and the hospital record also shows that the injured was brought by one Raj Kumar.
On the test of reasonable prudence, it is also beyond imagination that an injured who was stabbed with knife and was also having injuries received on his head with a stone also as alleged by him in his complaint, was not helped/accompanied by his brother or mother in the rickshaw, pulled by a rickshaw puller who brought him alone to the hospital finding 'no relatives' of the SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 26 injured around and if the brother or the mother, the relatives of the injured, were available on the spot, as to why they will not accompany their near and dear ones, who had injuries and wound on the vital parts of his body, as per the injuries mentioned in the MLC.
42. Thus, even the presence of PW4 on the spot at the time of occurrence is doubted and therefore, his testimony regarding 'use' of the knife by the accused as one of the two persons stabbed his brother, cannot be believed and relied rather his two versions given differently on the facts about the occurrence belies the facts stated by him at two places.
Thus, the prosecution could not prove the factum of 'use of knife' by the accused during commission of alleged robbery on the injured Arun.
Other two witnesses namely Ct. Ram Dev and ASI Rawat have not testified any facts that they had seen the accused 'using' knife in the alleged commission of robbery.
Therefore, charges against the accused Sant Ram for the offence u/s 27 Arms Act are also proved on record.
43. Further, for establishing the offence u/s 25 Arms Act, the prosecution is relying on the testimonies of PW4 Arjun and police officials Ct. Ramdev, PW8 & ASI Rawat Singh, PW12 to prove the factum of possession of knife with the accused and of its SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 27 description as contraband item as notification of Delhi Administration No. F/13/411/79/HOME (G) dated 29.10.1980.
44. On appreciation of evidence of these witnesses, it is observed that as per PW4 Arjun in his chiefinexamination, both the assailants/robbers were apprehended by the public and were given beatings but one of the two boys managed to escape and the other boy (the accused) was handed over to the police who arrived at the spot.
Also that 'on search of the aforesaid boy, one knife was recovered from the pocket of his pant' .
In his crossexamination, he has deposed that , 'When the accused was beaten by the public, the knife fell from his pocket. The knife was taken into possession in his presence by the police'.
45. Thus, from the testimony of PW4, though his presence of the spot is doubted, yet if assumed to be present on the spot, then also this witness has material discrepancies about 'possession' of knife and the manner of seizure of the knife from the accused by the police, in his presence as at one place in his chiefinexamination this witness testified that on apprehension, the police searched the accused and found one knife recovered from the pocket of his pant, whereas in his crossexamination he has deposed that while SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 28 beatings given to him by the public, that knife had fallen down from his pocket.
As per facts established, the occurrence is of 4:40 PM, information received by the police vide DD No. 31A Ex. PW12/A at 5:06PM ( 26 minutes later from the time of occurrence), the beatings were given to the accused by the public when after occurrence, he along with his coassociate ran away from the spot and were chased by the public who on apprehending both the boys had given beatings to the accused persons and one out of the two had escaped and during the beatings given, the knife had fallen down from his pocket.
46. In the abovenoted facts, it is difficult to ascertain with moral certainty in the preponderance of all probabilities as to whether the knife was found in possession of the accused in his pant by the police when they searched the accused, when he was handed over by the public to them or the knife was already fallen down on the floor when the accused was given beatings by public. If later is true, then the former is belied because both of the situations cannot arise together.
47. Moreso, PW4 is the signatory witness of the sketch of knife Ex. PW4/A & seizure memo of knife Ex. PW4/B but he has deposed in his crossexamination that, 'only one document was signed by him at the spot and remaining SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 29 documents he signed in the police station' Also during the crossexamination this witness had testified in the court that 'he had signed the documents after 23 days of the incident because the FIR was not lodged on the same day and after the lodging of the FIR he had signed the documents'.
48. In the abovenoted circumstances, it is difficult to believe that he was the witness of seizure & preparing of the sketch of knife though he was signatory witness of Ex. PW4/A and of the seizure memo of the knife Ex. PW4/B because as per testimony of police official ASI Rawat Singh, examined as PW12, both these documents were prepared on the spot in the presence of PW4, the only public witness, examined by the prosecution whose presence of the spot is even doubtful.
The relevant extracts of the testimony of PW12 ASI Rawat Singh, is extracted below, 'On formal search of accused Sant Ram, one buttondar knife was recovered from his possession. I requested 45 passersby to join the investigation but none agreed. Public witness Arjun also met us at the spot.
I prepared the sketch of knife already Ex. PW4/A bearing my signature at point C and same was measured. The knife was kept in a white colour cloth and converted into a pulanda and sealed with the seal of RSY and taken into possession vide seizure memo already Ex. PW4/B which also bears my signatures at point C'.
49. Meaning thereby, as per ASI Rawat Singh, IO examined as PW12, on recovery of the knife from the possession of the accused, SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 30 the public persons available were asked to become the witness but none agreed and public person Arjun met him at the spot and he prepared the sketch of the knife Ex. PW4/A and the seizure memo Ex. PW4/B at the spot and got it signed by Arjun, PW4. In these circumstances, if IO ASI Rawat Singh is believed then PW4 Arjun is belied or viceversa.
50. Further, witness Ct. Ramdev another witness of the prosecution, examined as PW8, has deposed that one buttondar knife was recovered from the right side rear pocket of the jeans and that no other public person joined the investigation. The sketch of the knife Ex. PW4/A was prepared and seizure memo Ex. PW4/B was prepared on taking of the knife into possession. This witness if believed on the tunes of IO ASI Rawat Singh on these aspects then signatures of Arjun, PW4 on these documents create doubt on preparing of these documents on the spot as Arjun, PW4 has deposed that he had signed the documents after 34 days of the occurrence in the police station.
51. Thus, not only the manner of recovery of the alleged knife is doubtful but even all the proceedings of preparing sketch and seizure of the knife on the spot become doubtful. This is also doubted as to whether the knife was recovered on search of the accused from his right pocket of the pant or it has already been fallen down on the ground when the accused was given beatings SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 31 by the public, as testified by PW4, who is the signatory of the sketch of the knife and of the seizure memo Ex. PW4/A & B. Thus, either two police witnesses are belying or the public witness PW4 but in both the circumstances not only the recovery of knife from the possession of the accused becomes doubtful but the seizure of the knife as well as the sealing of the knife on the spot become doubtful.
52. Ld. Addl. PP for the State had argued that the knife so recovered was opined as the same from which the injuries could have been inflicted and this fact connects the accused with the commission of crime.
In the abovenoted circumstances, it is observed that possession & the recovery of the knife from the accused vide seizure memo Ex. PW4/B and the sketch Ex. PW4/A signed by witness Arjun, on the face of testimonies of PW8 & PW12, the police officials, containing material discrepancies relating to the manner of its recovery from the accused and the seizure and sealing of the same on the spot, do not inspire confidence then the connection of this knife on the basis of expert opinion, with the accused is not established beyond reasonable doubt.
53. Further, it is observed that as per PW12 ASI Rawat Singh, after seizure and sealing of the knife and handing over the seal to Ct. Ramphal, accused was sent to hospital for his medical SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 32 examination in the custody of Ct. Ramphal but the record produced before this court does not contain the medical document of medical examination of accused Sant Ram to establish that he was arrested from the spot and was found in possession of knife and was medically examined in the hospital.
54. The medical record of accused Sant Ram becomes vital document in the facts and circumstances of this case as it is prosecution case that the accused was apprehended on the spot during occurrence by the public and was beaten by the public and then was handed over to the police.
If it is assumed that the accused was apprehended from the spot with knife in his possession by the public, who has given beatings to him then the accused must have received at least some injuries due to such beatings and only the medical record of accused would have shown that he was present on the spot, apprehended and beaten by public and while beatings given to him, the knife had fallen down from his pocket, as testified by PW4.
55. Nonproduction of such vital document of medical examination of accused is fatal to the prosecution case particularly when the prosecution story is that the accused was taken to the hospital and was identified by the injured Arun, who was already admitted in the hospital. If the accused was not taken to the hospital for medical examination then even identification of the accused by the SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 33 complainant in the hospital becomes doubtful as has been mentioned in his complaint Ex. PW1/A particularly when the injured himself has reported in his complaint that one boy had tried to rob his money and stabbed him with knife whereas in his testimony as PW1, the complainant/injured has testified in the court that there were two boys who tried to rob his money and both of them stabbed him with knife.
His testimony surprisingly does not mention anything regarding hitting his head with stone by the assailants as is being reported by him in his complaint whereas the medical record of the injured has shown two injuries one is lacerated wound over post aspect of left parital region and another penetrating wound over left buttock.
56. PW1 did not identify the accused in his chiefinexamination conducted on 01072014 and when the chiefinexamination was deferred for further date, during his crossexamination by the state on next date i.e. 25112014 he identified the accused explaining that on the last date of his depositions he had shown his inability to identify the robber out of fear of him but he had admitted during the cross examination that he had deposed on 01072014 before the court with his own free will and had not brought the fact to the knowledge of the presiding officer. Also that until that date nobody from the family or friend of the accused had threatened him or his family.
57. In the abovenoted facts and circumstances, in the absence of SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 34 formal Test Identification Parade (TIP) of the accused during investigation and on the face of the testimonies of PW5 Sh. Raj Kumar, who was declared as hostile on the point of identity, even the identity of the accused as robber becomes doubtful and also the possession of any knife and recovery that of from his possession becomes doubtful particularly when the prosecution had not produced any medical document of the medical examination of the accused Sant Ram, whose defence is that he was arrested from his house at about 10 PM.
58. In this case the occurrence is of 4:40 PM, information received by the police vide DD No. 31A, at 5:06 PM, police reached on the spot within 57 minutes of apprehension of the accused that is at about 5:10 PM, police remained at the spot for about 1015 minutes ( as per testimony of PW4), then arrest of the accused at 10PM, in the absence of any medical examination record of the accused makes the complete story of the prosecution as doubtful, on the face of the evidence produced by the prosecution.
It is noted that as per DD No. 31A Ex. PW12/A, the information was given to the police by one Sh. Atul, the brother of injured but no such Atul has been produced by the prosecution nor it is explained that as to who was Atul and why he was not produced during trial, if he was the witness of occurrence.
59. No explanation has come from the prosecution for change of the number of assailants, in the testimony of eye witnesses/injured from SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 35 their previous versions given to the police about one assailant and for nonexamination of the mother of the injured for keeping her aback from trial, if according to the prosecution she was present on the spot and was a witness to the occurrence along with his son Arjun as alleged.
60. Thus, in the abovenoted facts and circumstances from the entire evidence on record, it is observed that the prosecution has miserably failed to prove the ingredients above mentioned that were necessary to prove for the offences either under section 394/397 IPC or for the offences under section 25 or section 27 of Arms Act against the accused beyond reasonable doubt.
61. Thus, a benefit of doubt is given to the accused Sant Ram on the basis of abovenoted principles.
Consequently, the accused namely Sant Ram is acquitted of the offences 394/397 IPC & 25/27/54/59 Arms Act.
62. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
Announced in the open Court (Dr. Archana Sinha) on this 26th day of July 2017 Addl. Sessions Judge02,North Rohini Courts, Delhi 26.07.2017 SC No. 58415/16 , FIR No. 27/14 PS. KNK Marg State Vs. Sant Ram Page No. 36