Delhi District Court
Shyam Kumar vs The State on 16 December, 2020
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) KARKARDOOMA COURTS, DELHI
CA No.85/2020
Shyam Kumar
S/o Nagina Mehto
r/o H.No.90, Gali No.23/3,
Mandawali, Delhi
...Appellant
versus
The State
(Govt. of NCT of Delhi)
.....Respondent
Date of institution 17.09.2020
Arguments heard 03.12.2020
Date of order 16.12.2020
JUDGMENT
1. The present appeal has been filed against the judgment dated 03.07.2020 as well as order on sentence dated 17.07.2020 passed by Ms. Preeti Agarwala, Ld. MM3 (East), Karkardooma Courts, Delhi. Vide the said judgment, the appellant was convicted u/s 394/411 IPC and he was awarded the following sentence: "(i)three years simple imprisonment and fine of Rs.5000/ u/s 394 IPC.
(ii)further one year simple imprisonment u/s 411 IPC. Both sentences are to run concurrently".
2. The brief facts of the prosecution case are that allegedly on 04.08.2018 (at night), the complainant was returning home from his office in a bus. After reaching Dharma Apartments, Delhi, the complainant deboarded CA No.85/2020 Shyam Kumar vs State 1 of 17 the bus at 9.45 pm and started going home on foot. As soon as he crossed Dharma Apartments, suddenly, the accused came from his back side and caught hold of his neck and pressed his neck and pushed him on the ground and then he took out his wallet (black colour) from the back pocket of complainant's trouser. When complainant tried to catch hold of the accused, the accused gave a fist blow on his (complainant) left eye due to which he sustained injury on his left eye. Then complainant raised alarm upon which one police official and some passersby gathered there and accused was caught at the spot. The complainant made a call at 100 number and his robbed wallet containing cash Rs.230/, Driving Licence, Voter ICard and Passport size photo, was recovered. Police reached at the spot, took accused in their custody and recorded statement of complainant upon which present FIR was registered against the accused
3. After completion of investigation the chargesheet was filed against the accused u/s 394/411 IPC.
4. Vide order dated 24.09.2018, a charge u/s 394/411 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. The prosecution examined the following six witnesses to substantiate the accusations against the accused. The brief outline of the prosecution witnesses is being discussed as under: (5.1) PW1 is complainant Jalaluddin. This witness has reiterated the facts of the case and deposed that on 04.08.2018 at about 9.45 pm, he was returning home from his work place in the bus no.348. He CA No.85/2020 Shyam Kumar vs State 2 of 17 deboarded the bus at Dharma Apartments, Narvana Road, Delhi and started walking towards his home. PW1 further deposed that when he reached a little ahead of Dharma Apartments, suddenly a boy (i.e. accused) came from his back side and caught hold of his neck and pressed it, due to which he felt pain and suffocation and thereafter, accused took away his (complainant) wallet from the pocket of his trouser. When he (complainant) objected to the same then accused hit complainant with a fist blow on his left eye due to which complainant sustained injury. Thereafter, PW1 shouted 'चचरचचर' then some passersby came for his help. One police official who was on patrolling also came there and accused was apprehended with the help of these persons. PW1 further deposed that he called the police at 100 number and police reached at the spot and his wallet containing cash Rs.230/ (two currency notes of Rs.100/ denomination, one currency note of Rs.20 and one currency note of Rs.10/), his DL, his Voter ICard and one passport size photograph, was recovered from the possession of the accused. PW1 deposed that police recorded his statement Ex.PW1/A, seized his wallet vide seizure memo Ex.PW1/B, arrested the accused vide arrest memo PW1/C and conducted personal search of accused vide memo Ex.PW1/D. PW1 has correctly identified the accused as well as his wallet as Ex.P1.
(5.2) PW2 is ASI Harbir Singh. This witness deposed that on 04.08.2018, he was on patrolling duty in the area of PS Mandawali from 9 pm to 9 am and at about 9.45 pm when he reached near Dharma Apartments, he heard the sound of 'चचरचचर' and saw that a boy was CA No.85/2020 Shyam Kumar vs State 3 of 17 there and another boy (i.e. accused) was holding his neck with his hands. Then he immediately rushed towards them. Some passersby also came there for the help and they all apprehended the accused when he started running on seeing them. Thereafter, complainant called at 100 number. PW2 also deposed that the robbed wallet of complainant was recovered from possession accused. IO/ASI Virender along with Ct. Monu also reached at the spot and custody of accused was handed over to IO. Thereafter, IO seized the wallet and arrested the accused. PW2 has also identified the case property before the court during his evidence.
(5.3) PW3 is ASI Raj Kumar, the Duty Officer who deposed that on 04.08.2018 at about 10.04 pm, he received a call from Control Room regarding the incident of snatching at Dharma Apartments which was recorded by him vide DD No.46A. Copy of the said DD is Ex.PW3/A. PW3 also deposed that on the same day at about 11.35 pm, Ct. Monu produced rukka before him and he recorded the present FIR on the basis of said rukka and also made endorsement on it. Copy of the FIR and endorsement on the rukka are Ex.PW3/B and Ex.PW3/C. (5.4) PW4 is Dr. Suraj, CMO LBS Hospital, who had examined the patient/complainant and prepared MLC No.010815 dated 04.08.2018 Ex.PW4/A. PW4 deposed that complainant had sustained lacerated wound over right eyebrow 0.5x0.3 cm. PW4 also brought on record MLC of accused as Ex.PW4/B. (5.5) PW5 is Ct. Monu who deposed that on 04.08.2018 he was on emergency duty from 8 pm to 8 am and at about 10 pm, on receipt of a CA No.85/2020 Shyam Kumar vs State 4 of 17 call from ASI Harvir, he reached at the spot where he met ASI Harvir and complainant. ASI Harvir had caught hold of one boy who revealed his name as Rahul @ Kaley son of Ashok. Meanwhile ASI Virender also reached at the spot, who recorded statement of complainant, prepared rukka and handed over to PW5 who went to PS and got registered the present FIR. PW5 further deposed that on instruction of IO, he visited the house of accused for verification purpose and met Ms. Rekha, the wife of accused and wife of accused apprised him that the real name of accused is Shyam Kumar s/o Nageena Mahto. PW5 also deposed that IO seized the purse which was recovered from possession of accused and arrested the accused.
(5.6) PW6 ASI Virender Singh is the IO of the case. This witness deposed that on 04.08.2018, he was on emergency duty from 8 pm to 8 am. At about 10 pm, he received DD No.46A regarding catching of thief (accused), he along with Ct. Monu reached the spot i.e. Main Road Dharma Apartments where he met with ASI Harvir and complainant Jalaluddin who had caught hold one boy who revealed his name as Rahul @ Kale son of Ashok. PW6 further deposed that ASI Harvir produced the said boy along with one snatched purse to him and thereafter, PW6 recorded statement of complainant Ex.PW1/A, endorsed the same, prepared rukka Ex.PW6/A and handed over the same to Ct. Monu who got registered the FIR of the present case. PW6 also deposed that he got verified the name of accused and found his real name as Shyam son of Nageena Mahto. Thereafter, PW6 arrested the accused vide Ex.PW1/C and conducted his personal search vide CA No.85/2020 Shyam Kumar vs State 5 of 17 memo Ex.PW1/D. PW6 further deposed that he checked the recovered purse and found one driving licence of complainant, one photo, one voter ID and Rs.230/ (having denomination of Rs.100/, 20/ and 10/) which was seized vide seizure memo Ex.PW1/B. PW6 recorded statement of ASI Harvir and got medical examination of accused as well as complainant conducted through Ct. Monu. PW6 also prepared site plan Ex.PW6/B and recorded disclosure statement of accused Ex.PW6/C.
6. After completion of the prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C r/w section 281 Cr.P.C. and all incriminating evidence appearing against the accused in the prosecution evidence was put to him to which accused stated that he has not done any act against complainant. Complainant has falsely implicated him in the present case in connivance with the police with ulterior motive. On that day, he was present outside his house in drunken condition and some police officials arrested him and falsely implicated him in the present case. He is innocent and has been falsely implicated in the present case. The accused opted not to lead any evidence in his defence.
7. After completion of trial and hearing arguments, Ld. Trial Court convicted the accused and awarded the aforementioned sentence.
8. Now, the present appeal has been filed mainly on the following grounds:
(a)that the Ld. Trial Court failed to appreciate that the prosecution has failed to prove the case against the accused beyond CA No.85/2020 Shyam Kumar vs State 6 of 17 reasonable doubt and the court has wrongly relied upon the evidence produced by the prosecution.
(b)that the entire case against the appellant was concocted and divorce from the truth. There are material contradictions in the testimony of prosecution witnesses.
(c) The Ld. Trial Court failed to appreciate that at one place of his crossexamination, PW1 has alleged that no public person were present at the time of incident and at another place, PW1 again stated in the same crossexamination that when he raised alarm, public persons apprehended the accused.
(d)That in his examination in chief, PW2 stated that he saw the accused holding the neck of the complainant while in his cross examination, he sated that he did not see the accused holding the neck of the complainant and thus, it is clear that prosecution case is false as there is contradiction in the testimony of prosecution witnesses. Further, the DD entry was recorded after 19 minutes of incident i.e. 10.04 pm and that the fist blow alleged by the complainant finds no mention in his statement u/s 161 Cr.P.C. Thus, the prosecution case is a doubtful and accused deserves benefit of doubt.
(e)That the Ld. Trial court wrongly held that in view of section 134 of the Indian Evidence Act, no particular number of witnesses are required to prove any fact and that the evidence of the complainant alone can be sufficient if it is corroborated in material particulars. However, in the instant case, the prosecution has CA No.85/2020 Shyam Kumar vs State 7 of 17 miserably failed to corroborate the alleged criminal act by the accused.
(f) That the evidence of PW6, whereby he took shelter of non co operation is unbelievable and falsified the entire case of the prosecution on the single ground that the instant case is full of contradictions and surmises and there are serious lacunaes in the investigation as well as in the prosecution case.
(g)That the charge framed in the case is stereo type and similarly the examination of the accused u/s 313 Cr.P.C. has been done in most casual manner causing great prejudice to the appellant. The accused was falsely implicated in the present case by the IO in connivance with the complainant after lifting accused from his house. Thus, it is prayed that the impugned judgment and order on sentence may be set aside.
9. I have heard the Ld counsel for the accused as well as Ld. Addl. Public Prosecutor and gone through the Trial Court records. Ld counsel for appellant has relied upon the case laws (i)Ashok Ahswal vs State of Delhi, 2017 [4] JCC 2743 and (ii)Ajmer Singh and anr. Vs State of Haryana Criminal Appeal No.408SB of 1985, in support of his contentions.
10.For proving the case against the accused prosecution was required to establish the following facts: "(i)that on 04.08.2018 at about 9.45 pm near Dharma Apartments, the accused assaulted the complainant and CA No.85/2020 Shyam Kumar vs State 8 of 17 robbed his wallet and in that process accused caused injury on the left eye of complainant.
(ii) that the accused was caught at the spot immediately after the incident and stolen purse was recovered from possession of accused.
11.In order to establish these allegations, the prosecution examined aforementioned six witnesses. As per prosecution case, PW1 and PW2 are material witnesses in this case. PW1 is the complainant/victim who has given complete details as to how the accused wrongfully restrained him, robbed his wallet and caused injuries i.e. lacerated wound on his eyebrow. PW2 who was on patrolling duty in that area, had seen that the accused had caught hold the neck of complainant and on hearing the sound of 'चचरचचर', he rushed towards them and some public persons also reached there for help and seeing the public persons and PW2, accused tried to escape from the spot but accused was apprehended at the spot and snatched wallet was recovered from possession of the accused.
12.On the other hand, accused denied the allegations and took a defence of alibi. In his statement u/s 313 Cr.P.C r/w section 281 Cr.P.C, accused stated that on the date of incident, he was present outside his house in drunken condition and some police officials arrested him and falsely implicated him in this case in connivance with the complainant. However, this plea of the accused is not sustainable at all because the incident took place on 04.08.2019 at about 9.45 pm and after incident medical examination of complainant as well as accused was got conducted in LBS Hospital and as per CA No.85/2020 Shyam Kumar vs State 9 of 17 MLC Ex.PW4/B, the accused was medically examined on 05.08.2018 at 2.15 am and there is no mention of alcohol in the MLC of accused. If accused would have been in drunken condition on the night of incident, the doctor concerned must have mentioned the said fact in the MLC Ex.PW4/B. Further, it is not the case of the accused that complainant was known to him and there was enmity between them. Accused has not disclosed any animosity either with the complainant or with the police officials. Accused has not explained as to why the complainant has falsely implicated him in this case. Moreover, the accused has not examined any defence witness in support of his contention that he was lifted from his house.
13.The next defence of the accused is that Ld. Trial Court has wrongly held that in view of section 134 of Evidence Act, no particular number of witnesses are required to prove the case and that the evidence of the complainant alone will be sufficient, if it is corroborated in material particulars and same is trustworthy. This plea of the accused does not carry much weight. There is no hard and fast rule to examine a particular number of witnesses to establish the prosecution case and it is well settled law that quality of evidence is to be seen instead of quantity of witnesses. In this case, the prosecution has cited total eight witnesses out of which the prosecution examined six witnesses. The witness mentioned at sl. no.5 in the list of witnesses is MHCM and witness mentioned at sl. no.7 is Dr. Narender Singh who opined the nature of injury on the MLC of complainant and these two witnesses were not examined. It CA No.85/2020 Shyam Kumar vs State 10 of 17 is clear from the trial court record that Ld. Counsel for appellant did not dispute the opinion given on the MLC by Dr. Narender Singh , thus, Dr. Narender Singh was not examined. Furthermore, it is well settled law that an accused can be convicted on the testimony of a sole eye witness/victim/complainant if the witness is completely reliable. In this regard, this court is supported with the judgment reported as Edward vs Inspector of Police, Aandimadam, Criminal Appeal No.707 of 2007 and Bipin Kumar Mondal vs State of West Bengal, (2011) 2 SCC (Cri) 150.
14.Further defence of the accused is that there are material contradictions in the testimony of PW1 and PW2. It is stated that in his examination in chief, PW2 deposed that he had seen that the accused had caught hold of the neck of the complainant while in his crossexamination, PW2 has denied the said fact. The perusal of evidence of PW2 shows that PW2 has explained as to how the accused was apprehended at the spot. Though, in his cross examination, PW2 stated that he had not seen the accused holding the neck of the complainant yet his entire testimony cannot be discarded merely because of some minor contradictions emerged in his crossexamination which was apparently conducted after one month of recording of examination in chief. Furthermore, from bare perusal of crossexamination, it appears that accused has not disputed the presence of PW2 at the spot on the date and time of incident. PW2 has clearly stated that he reached the spot on govt. bike on the date of incident and this fact has not been disputed by CA No.85/2020 Shyam Kumar vs State 11 of 17 the accused. No suggestion was put to PW2 to dispute his presence at the spot on the date and time of incident.
15.Ld. counsel for accused took further defence that there is a contradiction in the testimony of PW1 regarding presence of public witnesses at the spot. It is argued that in his crossexamination, at one place, PW1 has alleged that no public person was present at the time of incident and in the same crossexamination, PW1 further stated that when he raised alarm, public persons apprehended the accused. However, this defence of the accused does not inspire any confidence. From bare perusal of testimony of PW1, it is clear that PW1 has well supported his complaint Ex.PW1/A and there is no material contradiction in his crossexamination. From the arguments, it seems that Ld. Defence counsel endeavoured to say that public persons were not present at the time of incident. No doubt, PW1 has not stated that public persons were present at the very crucial time of incident but he has clearly stated that passersby had gathered at the spot when he raised alarm after the accused hit him with fist blow and after the incident of robbery took place. In his examination in chief, PW1 has clearly deposed that when he shouted 'चचरचचर' then some passersby came for his help and one police official also reached there and accused was apprehended with help of these persons. In his crossexamination also, PW1 clearly stated that when he raised alarm of 'चचरचचर', public persons apprehended the accused. From the complaint Ex.PW1/A also, it is clear that the public persons were not present at the crucial time of incident and CA No.85/2020 Shyam Kumar vs State 12 of 17 they gathered at the spot when complainant raised alarm immediately after the incident of robbery of his wallet took place. From the bare perusal of complaint Ex.PW1/A and statement of PW1, it is clear that when accused tried to run away after committing the robbery, the complainant raised alarm upon which public persons gathered at the spot and accused was apprehended at the spot. Thus, it is clear that the incident of snatching and arrival of public persons at the spot occurred chronologically. In view of the aforesaid discussion, the plea of the accused that there are contradictions in regard to the presence of public persons at the spot, is unsustainable and of no help to the accused.
16.It is clear from MLC of accused which was brought on record by PW4 as Ex.PW4/B that accused had some injury on his person. As per MLC, the accused was beaten by the public. This fact has not been disputed by the accused. It is also not the case of the accused that he was beaten by police after he was lifted from his house. This fact also proves that accused was apprehended immediately after the incident and he was beaten by public at the spot.
17.Ld. Defence Counsel has raised one another defence that there is delay of 19 minutes in recording of DD No.46A as the incident took place at 9.45 pm and DD no.46A was recorded at 10.04 pm. This plea of the accused is of no help to him and does not raise doubt on prosecution case. Admittedly, the incident took place at 9.45 pm and immediately, after the apprehension of the accused at the spot, PW1 made a call at 100 number and the said call was further transferred CA No.85/2020 Shyam Kumar vs State 13 of 17 to PW3, the Duty Officer who recorded the DD No.46A Ex.PW3/A regarding the incident. It is not the case of the accused that PW1 made call directly to PW3 rather PW3 received call regarding incident from PCR and thus, it is quite natural that in this process some time must have been consumed and therefore, lodging of DD No.46A at 10.04 pm cannot be considered to be a delayed one and accused cannot take advantage of such technicality. Ld. Defence counsel further took a defence that the testimony of the complainant is not reliable as the fist blow alleged by the complainant finds no mention in his statement u/s 161 Cr.P.C. The appellant has raised this plea for the first time before this court and PW1 was not confronted with the statement 161 Cr.P.C during evidence before the Ld. Trial Court. It well settled law that the statement u/s 161 Cr.P.C cannot be used to contradict the statement of a witness unless said statement is confronted during the examination of the witness. Since, in this case PW1 was not confronted with his statement u/s 161 Cr.P.C during his evidence before the Ld. Trial Court, same cannot be used now to contradict the testimony of PW1.
18.The accused has taken one another defence that stereo type charge has been framed and the examination of the accused u/s 313 Cr.P.C. has been done in most casual manner causing great prejudice to the appellant. This plea of the accused again is without any substance. Perusal of record shows that section wise specific charge has been framed against the accused. So far as recording of statement of accused is concerned, the same has been recorded u/s CA No.85/2020 Shyam Kumar vs State 14 of 17 313 Cr.P.C. r/w section 281 Cr.P.C and from the statement recorded on 21.11.2019, it is clear that during his statement, the entire incriminating material including the evidence part was put to the accused and it was explained in Hindi language. It is simply stated that recording of statement was done in most casual manner causing great prejudice to the appellant, however, accused has not disclosed as to what prejudice has been caused. Furthermore, if accused had any objection as to recording of statement u/s 313 Cr.P.C. r/w section 281 Cr.P.C in the concise manner then an objection ought to have been raised before the Ld. Trial Court at the time of recording of statement but no objection was raised and now this objection has been raised for the first time in the present appeal. It is well settled law that simply raising a plea of suffering injustice due to defective examination u/s 313 Cr.P.C would not suffice and accused has to put forth the relevant material on record to establish that he suffered injustice. In this regard this court is supported with the judgment of Hon'ble Apex Court reported as Criminal Appeal No. 87 of 2007 Santosh Kumar Singh vs. State the CBI. Furthermore, it is also clear that Ld. Trial Court had given the appellant opportunity to lead defence evidence and in case, he was not present at the spot at the time of incident, he was bound to prove his alibi but he opted not to lead any defence evidence in this regard. Thus, it is clear from these facts and circumstances that there is no substance in his plea of alibi and it seems that it has been raised for the sake of raising a defence.
CA No.85/2020 Shyam Kumar vs State 15 of 17
19.PW1 is the complainant who is the star witness of this case and he has well supported the prosecution case and remained firm throughout the case. PW1 has given complete details as to how and in what manner, the accused had caught him and took out his mobile phone. PW1 has also explained as to how accused caused injury to him and also as to how the accused was apprehended by the public persons when he attempted to flee. PW1 has also correctly identified the accused as well as case property before the court.
20.The prosecution has established on record that the complainant had suffered a lacerated wound on his eyebrow during robbery as the accused had given a fist blow to the complainant. PW4 Dr. Suraj has brought on record the MLC of the complainant as Ex.PW4/A by virtue of which it has been established that the complainant had suffered a lacerated wound on his right eyebrow. It is well settled law that the evidence of an injured witness must be given due weightage being a stamped witness and thus, his testimony cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that injured would spare the actual offender in order to falsely implicate someone else. Testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, in view of the settled law the evidence of the complainant in the present case has to be relied upon as there are no convincing grounds for the rejection of his evidence. In this regard this court is supported with the case CA No.85/2020 Shyam Kumar vs State 16 of 17 law reported as State of UP vs Naresh & ors. 2011 (4) SCC 324 and Abdul Sayeed vs State of Madhya Pradesh 2010 (10) SC
259. It is respectfully observed that the case law relied upon by the Ld. Counsel for appellant are not applicable to the peculiar facts and circumstances of the present case.
21.This court has also perused the judgment passed by Ld. Trial court. On perusal of the judgment passed by the Ld. Trial Court, this court is of the view that Ld. MM has discussed each and every aspect of the case and delivered a reasoned judgment. Thus, the judgment dated 03.07.2020 is hereby upheld. In view of these discussions, present appeal is liable to be dismissed and accordingly same is dismissed.
22.TCR be sent back to concerned court alongwith copy of this order.
AJAY Digitally signed
by AJAY GUPTA
GUPTA Date: 2020.12.16
16:29:02 +0530
(Ajay Gupta)
ASJ02/KKD/East/Delhi
Announced in open
court on 16.12.2020
CA No.85/2020 Shyam Kumar vs State 17 of 17