Delhi District Court
Chander vs . State Of Delhi, (2016) 3 Scc 108 Etc. The ... on 31 August, 2022
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010001782019
SC No. 72/2019
FIR No. 459/2018
U/s. 392/397/411/34 IPC
P.S Shakarpur
In the matter of :
State
versus
1) Aamir Khan
S/o Tahir Khan,
r/o 5/202, Gali No. 4,
Lalita Park, Laxmi Nagar,
Delhi.
2) Raj Kumar
s/o Munna Lal,
r/o H.No. 3/130, Gali No. 2,
Lalita Park, Laxmi Nagar,
Delhi.
Date of Institution : 07.01.2019
Date of reserving Judgment : 31.08.2022
Date of pronouncement : 31.08.2022
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Appearance
For the State : Shri. Rakesh Mehta,
Additional Public Prosecutor.
For accused persons : Shri C.S. Tyagi, Amicus Curiae.
JUDGMENT
1) Briefly stated the facts of the present case are that on 23.09.2018 DD No. 77 was received at PS Shakarpur and was assigned to SI Nihit Phogat, who alongwith Ct. Raj Kumar, reached Shakarpur Chungi and came to know that the complainant alongwith the accused were taken to police station by PCR. On reaching police station SI Prem Kumar produced two boys namely Aamir Khan and Raj Kumar before him alongwith complainant Sanju. One 'ustara' and cash amount of Rs. 270/ was also produced before him. IO/SI Nihit Phogat prepared sketch of the 'ustara' vide Ex. PW6/A and seized the same vide seizure memo Ex. PW1/A and the cash amount of Rs. 270/ was seized vide seizure memo Ex. PW1/B. IO recorded the statement of the complainant vide Ex. PW2/A wherein he stated that he was a resident of village Kidwai, PS Kidwai Nagar, Distt. Kanpur, UP. On 23.09.2018 he had dropped one passenger in his TSR bearing RC No. DL1RP5316 from Laxmi Nagar Metro Station to Lalita Park and at about 10.20 pm he was going back to Laxmi Nagar Metro Station. When his TSR reached near Hotel Glance at Lalita Park, two boys stopped his TSR and told him to take them to Sessions Case No. 72/2019 Page 2/13 ASJ-04/East/KKD Courts Seelampur. Meanwhile, one of the boys put an 'ustara' at his neck and the other boy forcibly took out Rs. 200/ (two currency notes of denomination of Rs. 100/ each) from left pocket of his shirt and took out Rs. 70/ from the cash box of the TSR (seven currency notes of denomination Rs. 10/ each) and threatened him to go away otherwise they would cut his neck with the 'ustara'/razor. The complainant went away from there and when he reached the red light at Laxmi Nagar, he saw a PCR van and he informed the police. The PCR van reached the spot alongwith him, however, those boys were not found there and they searched for those boys and reached Laxmi Nagar Red Light. He got down from his TSR and looked around and saw that those two boys had stopped a TCR at the road going towards ITO. He reached there and shouted 'pakropakro' and meanwhile few public persons present there surrounded those two boys and thrashed them. Meanwhile PCR van also reached there and apprehended those boys. Upon inquiry, the boys revealed their names to be Aamir Khan and Raj Kumar.
2) On the basis of the statement of the complainant Ex. PW2/A, FIR bearing No. 0459/2018 was registered on 24.09.2018, u/s 392/397/411/34 IPC Ex. PW3/A. IO conducted the necessary investigation and prepared the site plan. Accused persons were arrested and their disclosure statements were recorded. After completion of necessary investigation charge sheet was filed u/s 392/397/411/34 IPC against both the accused persons namely Aamir Khan and Raj Kumar. Sessions Case No. 72/2019 Page 3/13 ASJ-04/East/KKD Courts
3) On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence under Section 392/397/411/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 04.01.2019 committed the case to the Court of Session for 07.01.2019.
Charge :
4) On 04.02.2019, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused persons, court was of the opinion that prima facie there is sufficient material on record to frame charge against accused Aamir Khan under Section 392/34 r/w 397 IPC as well as u/s 411 IPC and against accused Raj Kumar under section 392/34 IPC. The charge so framed was read over and explained to the accused persons to which they did not plead guilty and claimed trial.
Prosecution Evidence :
5) In order to prove its case, the prosecution examined following witnesses.
(i) PW1 retired SI Prem Kumar - Incharge PCR van. He deposed about the information regarding the incident received from complainant Sanju and the fact that robbery had been committed with him Sessions Case No. 72/2019 Page 4/13 ASJ-04/East/KKD Courts by showing razor to him by the accused persons near Hotel Glance Inn, Laxmi Nagar, Vikas Marg. He also deposed that the accused persons were apprehended by the police with the help of public persons at the instance of the complainant and a razor and currency amount of Rs. 270/ were recovered from accused Aamir Khan. The accused persons alongwith the case property and complainant were taken to PS Shakarpur and handed over both the accused persons and the case property i.e. weapon of offence i.e. razor and Rs. 270/ to the IO, which were seized vide seizure memos Ex. PW1/A and Ex. PW1/B respectively. He had made a call at 100 number. He identified the razor as Ex. P1 and currency notes as Ex. P2 (colly).
(ii) PW2 Sanju - complainant/victim. He deposed that at the time of incident, he was a TSR driver. He did not remember the date, month of incident, however, it took place in the year 2018. On the date of incident at about 1111.30 pm he was returning after dropping some passenger in his TSR No. DL1RP5316. When he reached near Laxmi Nagar red light in his aforesaid TSR, 34 boys met him there and they told that they had to go to Seelampur. He refused for going there. The aforesaid 34 boys gave beatings and abused him. On PCR van was standing on the opposite side of the road. He informed the PCR officials and they took him to PS. He did not remember the name of police station.
Police officials showed him two persons in the police station but he could not identify them as assailants. Police made inquiries from him and Sessions Case No. 72/2019 Page 5/13 ASJ-04/East/KKD Courts recorded his statement Ex. PW2/A. Police obtained his signature on his statement. He deposed that he could not identify the assailants as at the time of incident there was darkness and also due to lapse of time. He deposed that the assailants were not arrested by the police in his presence.
The complainant PW2 Sanju was crossexamined by the Ld. Addl.P.P. for the State as he was resiling from his earlier complaint recorded by the police. In his crossexamination he deposed that he could not remember the date of incident to be 23 rd of September. He denied the contents of his complaint Ex. PW2/A, with which he was confronted by the Ld. Addl.P.P. for the State. He denied that the accused persons were apprehended upon his identification or that he was robbed of Rs. 270/ or that any razor was put on his neck by the accused persons. He further denied that the police had recorded his statement on 24.09.2018 vide Ex. PW2/PA regarding the fact that the site plan was prepared at his instance or that the accused persons were arrested on his identification. The complainant PW2 identified his signatures on the site plan, arrest memo of accused Aamir and arrest memo of accused Raj Kumar. However, he stated that the said documents were not prepared before him and his signatures were obtained by the police. He did not know the contents of the documents and signed them at the asking of the police. He denied the suggestion that he had been won over by the accused persons and had intentionally and deliberately concocted the fact that police official had shown him two persons in the police station as assailants. The accused Sessions Case No. 72/2019 Page 6/13 ASJ-04/East/KKD Courts persons were shown to the complainant PW2 before the Court with the suggestion that they were the same persons, who had committed the offence with him and who were apprehended and arrested at his instance, which suggestion was denied by PW2.
(iii) PW3 HC Niranjan Dhama - Duty Officer. (iv) PW4 Const. Sandeep - part of investigation including
disclosure statements of both the accused persons.
(v) PW5 Const. Raj Kumar, part of investigation including recording arrest of both the accused persons, medical examination of the accused persons, recording disclosure statements of both the accused persons, seizure of the weapon of offence i.e. ustara/razor, seizure of robbed money of Rs. 270/, preparation of sketch of ustara and preparation of site plan at the instance of the complainant. He identified the ustara Ex. P1 and the currency notes Ex. P2 (colly).
(vi) PW6 SI Nehit Phogat, IO of the case. Statement of accused persons : 6) After conclusion of prosecution evidence, on 26.08.2022
statements of both the accused person were recorded under Section 313 Sessions Case No. 72/2019 Page 7/13 ASJ-04/East/KKD Courts Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were innocent and were falsely implicated in this case. Both the accused persons did not opt to lead evidence in their defence.
Arguments :
7) It is contended by Ld. Counsel for the accused persons that there is no evidence on record to bring home the guilt against the accused persons. The complainant has not supported the prosecution version in the present case and the other witnesses are police officials and are only formal in nature. In these circumstances, the guilt of the accused persons is not established on record. It is accordingly stated that the accused persons are liable to be acquitted of the offence they are charged with.
8) On the other hand, it is contended by Ld. Addl.P.P. for the State that in the initial statement given by the complainant/victim to the police Ex. PW2/A, the complainant has detailed the manner in which he was robbed by the accused persons after showing him an ustara/razor.
The accused persons were apprehended by the police at the instance of the complainant a few minutes after the incident. There is no doubt that it is the accused persons, who had robbed the complainant in the manner described in the initial complaint Ex. PW2/A. The 'ustara' Ex. P1 and Rs. 270/ were also recovered from accused Aamir Khan. It is Sessions Case No. 72/2019 Page 8/13 ASJ-04/East/KKD Courts accordingly urged that both the accused persons are liable to be convicted for the offences they are charged with.
9) I have heard ld. Counsel for the parties and perused the record.
10) Perusal of the testimony of the complainant PW2 reveals that he has supported the incident to the extent that he was returning after dropping some passenger in his TSR bearing RC No. DL1RP5316. When he reached near Laxmi Nagar red light in his TSR, a few boys met him there and told him that they had to go to Seelampur. However, he mentioned that the number of boys were four, whereas in his complaint Ex. PW2/A he mentioned about two boys. In his testimony he further stated that those 34 boys gave beatings to him and abused him. In his crossexamination by Ld. Addl.P.P. for the State he denied the incident of robbery or that the accused persons had put razor on his neck or that they had robbed him of Rs. 270/. In fact PW2 testified that police officials had shown him two person at the PS and he could not identify them as the assailants as it was dark at the time of incident and also due to lapse of time. The complainant was unable to identify the accused persons before the court when they were shown to him before court by Ld. Addl.P.P. for the State during his crossexamination. In his crossexamination by the Ld. Addl.P.P. for the State he denied that the accused persons were apprehended at his instance or the manner of their apprehension. He Sessions Case No. 72/2019 Page 9/13 ASJ-04/East/KKD Courts identified his signatures on the site plan and the arrest memos of the accused persons, however, he stated that the said documents were not prepared before him and he simply signed them at the asking of the police.
11) Accordingly, the complainant did not support the prosecution version on material points and was crossexamined at length by Ld. Addl.P.P. for the State, however, he did not change his version as given in his examinationinchief.
12) It is settled law that it is not that the testimony of hostile witnesses is to be discarded altogether as the same is available to be read. In this context, reference can be made to Dhananjay Singh Chauhan vs State, 2013 IV AD (Cri) (DHC) 259, wherein the Hon'ble Supreme Court observed as under:
"There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [AIR 1977 SC 170] it was observed that by giving permission to crossexamine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from Sessions Case No. 72/2019 Page 10/13 ASJ-04/East/KKD Courts consideration. In a criminal trial where a prosecution witness is crossexamined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such crossexamination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy."
13) The above principle of law has been followed in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108 etc. The law therefore permits courts to take into consideration the deposition of the hostile witness to the extent the same is in consonance with the case of the prosecution and is found to be reliable on careful judicial scrutiny.
14) In his crossexamination by the Ld. Addl.P.P. for the State the complainant PW2 denied the contents of his statement Ex. PW2/A given to the police u/s 161 Cr.P.C. He denied that he had been won over by accused persons.
15) Essentially the complainant denied the material aspects of the prosecution case regarding the incident of robbery by putting a razor on Sessions Case No. 72/2019 Page 11/13 ASJ-04/East/KKD Courts his neck by the accused persons. The ld. Counsel for the accused persons did not crossexamine the complainant PW2.
16) The testimony of remaining witnesses relates to various aspects of investigation including recovery of ustara/razor Ex. P1 and Rs. 270/ Ex. P2 (colly) from accused Aamir and arrest of the accused persons etc.
17) From the aforesaid discussion, it emerges that the complainant PW2 has failed to support the prosecution version on material points regarding the factum of robbery by putting a razor on his neck by the accused persons, recovery of ustara/razor Ex. P1 and Rs. 270/ Ex. P2 (colly) from accused Aamir and arrest of the accused persons at his instance.
18) The basic principle of criminal law is that the prosecution has to prove its case beyond reasonable doubt. However, the prosecution could not pass the said test in the present case in view of the testimony of the complainant PW2, who failed to support the prosecution case on material aspects.
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19) In view of the discussion hereinabove, the accused Aamir Khan and Raj Kumar are acquitted of the offences they have been charged with. Their bail bonds stand cancelled and surety stands discharged.
20) After compliance of section 437A Cr.P.C by the accused persons, file be consigned to record room .
Announced in the open Court
on this 31st day of August, 2022 (Deepali Sharma)
Additional Sessions Judge04
East District/KKD Courts/Delhi.
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