Delhi District Court
State vs (1) Rizwan on 17 October, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 123/2017
CNR No. DLNE01-006891-2016
State Versus (1) Rizwan
S/o Sh. Mahraj Nabi
R/o C-80/4, Gali No. 11,
Chauhan Bangar, Delhi.
(2) Mohd. Danish
S/o Sh. Mohd. Mansoor
R/o H.No. 1164/2, Gali No. 41,
Jafrabad, Delhi.
FIR No. : 181/2017
PS. : Seelampur
U/s. : 392/394/397/34 IPC
Chargesheet Filed On : 01.05.2017
Date Of Allocation : 15.05.2017
Judgment Reserved On : 11.10.2019
Judgment Announced On : 17.10.2019
JUDGMENT:
1. Both the accused were facing trial in respect of offences punishable u/s 392/394/397/411/34 IPC on the allegations that on 03.04.2017 at 1:10 am at Gali No. 7, Gautam Puri, Delhi within the jurisdiction of PS Seelampur, both of them in furtherence of their common intention, robbed the complainant namely Arbaz Khan (PW-1) and took away his mobile phone make Oppo of golden-white colour and caused hurt to him while committing the said robbery. It was also alleged that accused Mohd. Danish had used deadly weapon i.e. blade while committing the said robbery.
BRIEF FACTS OF THE CASE SC No. 123/2017 State Vs. Rizwan & Anr. Page 1 of 23
2. In brief, the case of prosecution is that on 03.04.2017 when ASI Brahmjeet Singh (PW-6) and HC Manoj (PW-5) were proceeding from Brahmpuri Road towards Gali No. 7, Gautam Puri while doing patrolling duty, they saw two boys coming towards them while in running condition and one of them was raising the alarm of "chor-chor". The other boy was apprehended by them. One another boy was apprehended by public persons. In the meantime, the boy who was raising the aforesaid alarm, also reached there. He was bleeding from right side of his neck and informed PW-6 that both the apprehended boys had committed robbery of his mobile phone by giving blade blows on his neck. One mobile phone of golden-white colour was recovered from one of the assailants. Said mobile phone was seized by PW-6. The victim was got medically examined from JPC Hospital, vide MLC No. 6908/17 (Ex.PW3/A).
3. It is further the case of the prosecution that PW-6 recorded statement (Ex.PW1/A) of victim Arbaz Khan, wherein he stated that on 03.04.2017 at 1:10 am while he was returning to his house situated in Gali No. 13, Gautam Puri and reached at Gali No. 7, two boys came from behind and stopped him on the pretext of asking time from him. He was carrying mobile phone in his hand. In the meantime, one of those boys caught hold of his neck and pushed him to the wall, whereas other boy put blade type weapon on right side of his neck and asked him to hand over the belongings. The other boy snatched his mobile phone make Oppo A-37 of golden-white colour. He raised alarm, on which both the said offenders fled away towards Brahmpuri road after hitting blade on his neck. He chased them while raising the alarm. In the SC No. 123/2017 State Vs. Rizwan & Anr. Page 2 of 23 meantime, both the aforesaid police officials i.e. PW-5 and PW-6 apprehended one of the robbers and recovered mobile phone from him. The other offender having used blade, was apprehended by public persons and his name was revealed as Mohd. Danish. The name of other robber was revealed as Rizwan.
4. On the basis of aforesaid statement, FIR in question in respect of offences u/s 392/394/397/411/34 IPC was got registered on the basis of tehrir prepared by ASI Brahmjeet Singh (PW-6), to whom investigation was entrusted as per directions of concerned SHO. During investigation, IO prepared rough site plan of the place of incidence at the instance of complainant; arrested both the accused persons; seized robbed mobile phone as well as blade allegedly used in the commission of crime and recorded statements u/s 161 CrPC of relevant witnesses. After completion of investigation, chargesheet was filed u/s. 392/394/397/411/34 IPC against both these accused persons.
5. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence punishable u/s 397 IPC was exclusively triable by it.
6. Vide order dated 04.07.2017, my learned Predecessor had been pleased to frame the charge for offences punishable u/s 392/394/34 IPC against both the accused persons and charge in respect of offence u/s 397 IPC against accused Mohd. Danish. Accused persons pleaded not guilty and claimed trial.
7. In order to prove the charge, the prosecution examined 06 witnesses during trial.
8. Statements u/s 313 CrPC of both the accused persons were SC No. 123/2017 State Vs. Rizwan & Anr. Page 3 of 23 recorded, wherein whatever incriminating evidence came on record during trial, was put to them. They denied them in toto and pleaded their innocence. They opted to lead evidence in their defence. Accused Rizwan examined his father Sh. Mehraj Nabi as D1W1 and accused Mohd. Danish examined his maternal grandmother Smt. Musarrat Begum as D2W1 in their respective defence evidence.
9. Now, it has to be seen as to how the prosecution story was unfolded by the prosecution witnesses examined during the trial. MATERIAL / EYEWITNESS
10. PW-1 is Sh. Arbaaz Khan. He is the complainant/victim against whom robbery was committed at the point of blade as per prosecution story. He has testified on the lines of prosecution story by deposing that on 03.04.2017 at about 1:00 am while he was returning to his house and reached at Gali No. 7, near Tent Wala School, Gautam Puri, Delhi, two persons came and asked time from him. He was carrying his mobile phone make Oppo A-37 of golden and white colour. Both the said persons pushed him against wall and one of them asked to hand over his mobile phone to him. He also put blade on his neck, due to which he received injury on it. The other person snatched his mobile phone. When he raised alarm, both the offenders ran away in different directions. He chased one of them. He further deposed that one of the offenders was apprehended by public persons. Police officials also reached there and said offender was handed over to police. He was got medically examined in JPC SC No. 123/2017 State Vs. Rizwan & Anr. Page 4 of 23 Hospital. His statement Ex.PW1/A was recorded by police. He identified both the accused herein to be the assailants. He also identified accused Mohd. Danish as offender who was apprehended by public persons and from whom blade was recovered. He also deposed that both the accused were arrested vide memos Ex.PW1/B and Ex.PW1/C in his presence and his robbed mobile phone recoverd from accused Rizwan, was seized vide memo Ex.PW1/D. Rough site plan Ex.PW1/E was prepared by police at his instance. He produced robbed mobile phone make Oppo A-37 of golden and white colour during trial, which was exhibited as Ex.P-1 and photographs thereof were exhibited as Ex.PW1/F-1 to PW1/F-4.
11. This witness was cross-examined by Ld. Addl. PP as he resiled on certain points. During said cross-examination, he admitted that his sister Sheeba Khan was owner of said mobile phone and she had executed Authority Letter Ex.PW1/G in his favour. He also admitted that it was accused Danish who had caused injuries on his neck with blade while committing the robbery and also that blade was recovered from the road at the instance of said accused and sealed pullanda of said blade was prepared and was seized vide memo Ex.PW1/H. He also admitted that both the accused had made disclosure statements Ex.PW1/I and Ex.PW1/J in his presence. He also identified the blade as Ex.P-2 during trial. INVESTIGATION WITNESSES
12. PW-5 is HC Manoj and PW-6 is ASI Brahmjeet Singh. Both these witnesses were on patrolling duty in the area of Gautam Puri during the intervening SC No. 123/2017 State Vs. Rizwan & Anr. Page 5 of 23 night of 02/03.04.2017. Both of them deposed on identical lines that while patrolling in the area, they reached near Gali No. 7, Gautam Puri, Delhi, two boys were seen coming towards them from opposite direction while in running condition and one another person was chasing them while raising alarm of "chor-chor". They got down from their motorcycle and apprehended one of those boys, while other boy was apprehended by public persons. The name of boy apprehended by them, was revealed as Rizwan and robbed mobile phone was recovered from his possession, whereas name of boy apprehended by public persons, was revealed as Danish. The victim's name was revealed as Arbaaz and he informed that it was Danish who had caused blade injuries to him while committing robbery of the mobile phone.
13. Both the witnesses further deposed that victim was got medically examined in JPC Hospital and thereafter, victim as well as both the accused were taken to PS, where PW-6 recorded statement Ex.PW1/A of victim and prepared rukka Ex.PW6/A and got the FIR in question registered. PW-6 also prepared rough site plan at the pointing out of victim and recovered broken blade at the instance of accused Danish. After preparing sealed pullanda sealed with the seal of PK of said blade, it was seized vide memo Ex.PW1/E.Likewise, sealed pullanda of mobile phone was also prepared and it was seized vide memo Ex.PW1/D.
14. They further deposed that both these accused were arrested and their personal search was conducted, vide memos Ex.PW1/B, Ex.PW1/C, Ex.PW5/A and Ex.PW5/B and they had made disclosure statements Ex.PW1/I and Ex.PW1/J respectively. They identified both the accused as well as mobile SC No. 123/2017 State Vs. Rizwan & Anr. Page 6 of 23 phone from its photographs Ex.PW1/F-1 to Ex.PW1/F-3 and blade (Ex.P-2) during trial. PW-6 also exhibited previous involvement report of accused Rizwan as Ex.PW6/B and photocopy of invoice/bill of robbed mobile phone as Mark X. MEDICAL / EXPERT WITNESS
15. PW-3 is Dr. Adiba. She had medically examined the complainant/victim Arbaz Khan in casualty of JPC Hospital on 03.04.2017, vide MLC No. 6908. She proved the said MLC as Ex.PW3/A and deposed in response to Court question that since injury on the neck of aforesaid victim was superficial, after healing, no mark of injury would be visible. She denied during cross-examination that said injury could be possible by way of fall on the ground and volunteered that it was incised wound which was possible only by sharp edged weapon.
FORMAL WITNESSES
16. PW-2 is ASI Umesh Kumar. He was Duty Officer during the relevant time. He deposed that on 03.04.2017 at about 3:10 am, HC Manoj had produced rukka, on the basis of which he got registered FIR No. 181/17 u/s 392/394/397/34 IPC through computer operator. He had made an endorsement on the said rukka and also made kayami DD No. 5-A in that regard. He exhibited copy of FIR in question as Ex.PW2/A and his endorsement on rukka as Ex.PW2/B.
17. PW-4 is ASI Dinesh Chand. He was working as MHC(M) during the SC No. 123/2017 State Vs. Rizwan & Anr. Page 7 of 23 relevant period. He deposed that on 03.04.2017, ASI Brahmjeet Singh had deposited two sealed pullandas sealed with the seal of PK, in malkhana vide Entry at Sl. No. 3993 in register no. 19.
18. He further deposed that on 10.04.2017, mobile phone which was kept in one sealed pullanda, was handed over to its superdar as per order of Ld. MM. He also made endorsement in this regard against entry at Sl. No. 3993 in register no. 19. He proved copy of the said entry as Ex.PW4/A (colly). STATEMENTS OF ACCUSED PERSONS
19. Incriminating circumstances appearing in evidence against both the accused persons were put to them as required u/s 313 CrPC. Their defence is of general denial. They pleaded their innocence and simply claimed that they were falsely implicated in this case.
DEFENCE EVIDENCE
20. D1W1 is Sh. Mehraj Nabi. He is father of accused Rizwan. He deposed that one day at about 8:00/9:00 pm in the month of April 2017, two police officers came to his house and took away his son i.e. accused Rizwan to the PS on the pretext of making some enquiry from him. They had also obtained his signature on one paper. He identified his signature on arrest memo Ex.PW1/B of accused Rizwan. He further deposed that when his son did not come back, he went to PS and made enquiries from the police and on next day morning, he was told that Rizwan was booked in the present case. When he resisted, police official SC No. 123/2017 State Vs. Rizwan & Anr. Page 8 of 23 threatened him that even he could also be involved in the present case.
21. D2W1 is Smt. Musarrat Begum. She is maternal grandmother of accused Mohd. Danish. She deposed that about 2-3 years ago, at about 5:00/6:00 pm, while she was preparing food in the kitchen, some police officials came and asked her about accused Mohd. Danish. When she produced accused Danish before those police officials, they took him with them. When they went to PS Seelampur, they were turned out by the police.
22. I have already heard Ms. Sushma Badhwar, Ld. Addl. PP for the State and Sh. Arun Sheoran, Advocate for accused Rizwan and Sh. Vishesh Sharma, Advocate for accused Mohd. Danish. I have also perused the record as well as the authorities cited at the Bar.
ARGUMENTS ADVANCED AND CASE LAW CITED
23. After referring to the case of prosecution as mentioned in the charge sheet and the testimonies of prosecution witnesses as well as the documentary evidence brought on record during the course of trial, Ld. Additional PP vehemently argued that the prosecution has established the guilt of both the accused persons beyond reasonable doubt. For the said purpose, she heavily relied upon the ocular testimony of complainant/victim namely Arbaz Khan (PW-
1) and submitted that accused persons could not impeach the testimony of said witness during his cross examination. She further submitted that both the accused are also correctly identified by PW-1 during trial and they were SC No. 123/2017 State Vs. Rizwan & Anr. Page 9 of 23 apprehended at the spot itself soon after committing the incident of robbery at the point of blade (Ex.P-2). She also argued that accused Rizwan was apprehended from near the spot by police witnesses namely HC Manoj (PW-5) and ASI Brahmjeet Singh (PW-6) when they were on patrolling duty in the area. She further submitted that the remaining police witnesses have also corroborated the prosecution story with regard to the investigation carried out in this case. She therefore, urged that both the accused are liable to be convicted in this case.
24. Per contra, Counsels for the accused persons vehemently argued that the prosecution has miserably failed to establish the guilt of both the accused beyond reasonable doubt. They contended that there are material contradictions appearing in the testimonies of prosecution witnesses examined during trial and no independent public witness was joined during investigation or produced during trial despite the fact that prosecution story alleged that accused Mohd. Danish was apprehended by the public persons. It was further argued that there is no definite evidence to establish as to which of the accused had used the blade as PW-1 did not support on this fact during chief examination.
25. The contradictions as pointed out on behalf of accused persons may be noted as below:-
(i) PW-1 deposed that blade was recovered from accused Mohd. Danish by public persons, whereas PW-5 and PW-6 deposed that blade was got recovered at the instance of accused Mohd. Danish after said accused led both the said police officials to the spot after registration of FIR;
(ii) PW-1 deposed that his statement Ex.PW1/A was recorded at PS, whereas PW-5 and PW-6 deposed SC No. 123/2017 State Vs. Rizwan & Anr. Page 10 of 23 that same was recorded at the spot itself;
(iii) PW-1 deposed during his cross-examination that he had met with his family members before giving statement to the police, which is contrary to the prosecution story;
(iv) Although, it is alleged that PW-1 had sustained injury on his neck due to blow of blade given to him by assailants but no injury mark was found present on his neck as per Court observation made while recording testimony of PW-1 during trial;
(v) PW-1 deposed that he never visited any place after returning back from the hospital, whereas prosecution case provides that rough site plan was prepared at the instance of PW-1 after registration of FIR by PW-6 who also so deposed in this regard during trial;
(vi) PW-1 deposed that both the offenders had run in two different directions after committing robbery of his mobile phone but both the accused are shown to have been apprehended while coming from same direction;
(vii) PW-5 HC Manoj has improved his version regarding recovery of blade during his testimony in asmuch as he initially deposed that blade was recovered from accused Mohd. Danish at the time of his apprehension itself but later on, he deposed that broken blade was got recovered at the instance of said accused from near the place of incident;
(viii) It has come on record that seal of 'PK' was affixed on pullandas of mobile phone and blade but it is not explained as to whom the said seal was belonging to and as to how, it came into possession of PW-6 ASI Brahmjeet Singh;
(ix) In police statement (Ex.PW1/A), the time of incident as mentioned is 1:00 am but in MLC (Ex.PW3/A), the time of incident is mentioned as 12:30 am in the alleged history ;
(x) There are contradictions in the testimony of PW-5 viz-a-viz the testimony of PW-6 and the prosecution story, in asmuch as PW-5 deposed that injury was SC No. 123/2017 State Vs. Rizwan & Anr. Page 11 of 23 caused on face of PW-1 and he was not sure as to where pullandas of seized mobile phone and blade were prepared and with which seal, same were sealed; and
(xi) PW-6 ASI Brahmjeet Singh deposed that rukka was prepared by him at the spot but PW-1 deposed that his statement was recorded at PS.
26. Based on aforesaid submissions, Ld. Defence Counsels urged that reasonable doubt has been created in the case of prosecution benefit of which must be given to the accused persons.
27. The aforesaid so called contradictions pointed out on behalf of accused persons, do not go to the root of prosecution case so as to destroy the basic fabric of its story. PW-1, being layman, is not expected to know the difference between recovery of blade from possession of a person and recovery of blade at the instance of said person. Thus, his deposition that blade was recovered from accused Mohd. Danish is in layman language and needs to be understood in that sense only. It is not so material as to where the statement (Ex.PW1/A) of PW-1 was recorded, whether it was at the spot or at the PS. The accused have failed to show that same constituted any material difference so far as the factum of incident of robbery of mobile phone of PW-1 having taken place on the given date, time and place. There is no contradiction as such when PW-1 testified that he had met with his family members for giving statement to the police. No doubt, no injury mark was found present on the neck of PW-1 when his testimony was recorded during trial but same does not create any doubt, what to say of reasonable doubt, in the case of prosecution in view of categorical SC No. 123/2017 State Vs. Rizwan & Anr. Page 12 of 23 deposition made by PW-3 Dr. Adiba in response to Court question that since injury on the neck of patient Arbaaz Khan (PW-1) was superficial, no mark of injury would be visible after healing. Said witness clearly ruled out the possibility of such injury being sustained by PW-1 by way of fall on the ground during her cross-examination on behalf of accused persons. She rather volunteered that injury was incised wound which was possible only by sharp edged weapon. The broken piece of blade (Ex.P-2) is sharp edged weapon and is found to have been duly identified by victim i.e. PW-1 to be the same blade which was used by accused Mohd. Danish for causing injuries to him. For all these reasons, the decision reported at 2002 Cr.L.J. 4286 (Allahabad) relied by counsel for accused Rizwan, is entirely distinguishable on the facts and circumstances of the present case.
28. No doubt, there is some sort of discrepancy appearing in the testimonies of PW-1 on the one hand and PW-5 and PW-6 on the other hand with regard to preparation of rough site plan but same is not considered to be fatal to the case of prosecution at all. There is no contradiction as such found in the testimony of PW-1 when he deposed that offenders had run in two different directions after committing robbery of his mobile phone. It was incumbent on the part of accused persons to get the same clarified through cross-examination by putting relevant questions to PW-1 in case they wanted to take any benefit thereof. The possibility of offenders moving towards different directions while running on the same side of the road, cannot be ruled out and since this fact was not got clarified by defence during further cross of PW-1, no benefit thereof can SC No. 123/2017 State Vs. Rizwan & Anr. Page 13 of 23 be accorded to them on this point. There is no improvement as such found in the version of PW-5 regarding recovery of blade at the instance of accused Mohd. Danish. It is a matter of common knowledge that memory of human being is bound to fade with the passage of time and also that every human being does not have same kind of memory. Thus, witnesses including police witnesses cannot be expected to remember each and every minute details even after passage of considerable time or to depose the facts in parrot like manner. For similar reason, the discrepancy appearing in the testimony of PW-5 that injury was caused on the face of PW-1 and he was not sure as to where pullandas were prepared and with which seal same were sealed, are quite natural as it may be noted that incident had occurred on 02.04.2017 and the testimony of PW-5 was recorded on 26.11.2018 i.e. after a considerable gap of 1 ½ years. PW-6 has duly explained during his cross-examination that seal of 'PK' was belonging to ASI Pavesh Kumar and same was used by him as he was not having his seal. He also explained during his cross that he had handed over said seal to ASI Pavesh Kumar after returning back to PS. There is no substance in the contention raised on behalf of accused that the entire prosecution case should be viewed with suspicion merely because the factum of seal of 'PK' been belonging to ASI Pavesh Kumar, is not mentioned in the chargesheet. It is well settled law that chargesheet is not supposed to contain each and every minute detail of the investigation carried out by the police. There was no requirement to cite ASI Pavesh Kumar as prosecution witness or to examine him during trial. At the most, it constitutes procedural lapse on the part of IO. Hence, no benefit thereof SC No. 123/2017 State Vs. Rizwan & Anr. Page 14 of 23 can be given to the accused. The time of incident as disclosed by PW-1 in police statement (Ex.PW1/A) is 1:10 am. The time of 12:30 am as mentioned in MLC (Ex.PW3/A) is not within the control of PW-1 as same is mentioned by treating doctor i.e. PW-3. Moreover, MLC is silent as to who had given the alleged history as mentioned therein. In this backdrop, it was necessary for accused persons to put relevant question(s) during cross-examination of PW-3 as to who had given the alleged history before her. Having failed to do so, no benefit thereof can be given to the accused persons. For all these reasons, the decision of Hon'ble Delhi High Court in "Deepak Kapoor Vs. State (Govt. of NCT)" in Crl. Appeal decided on 07.02.2007, as relied by counsel for accused Rizwan, is not applicable being distinguishable on facts from the present case.
29. The next limb of argument raised on behalf of accused persons that no independent public witness was joined during investigation, due to which the entire case of prosecution became doubtful, is without any merit. PW-6, who is IO of this case, duly explained in his cross that although there were so many public persons present at the spot but he did not record statement of any public person as they had refused to give their statements and despite his request to public persons to become witness to the seizure of blade, they refused to do so.
30. Hon'ble Supreme Court in the case "Ambika Prasad & Anr Vs. State" reported at 2002 (2) CRIMES 63 (SC) has held that it is a known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the SC No. 123/2017 State Vs. Rizwan & Anr. Page 15 of 23 truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses.
31. The issue of non-joining of independent witness and reliance upon the testimonies of police officials as witnesses to the seizure, was considered at length by Hon'ble Supreme Court in "Govt. of NCT of Delhi Vs. Sunil and Anr." reported at 2001 (1) SCC 652, where it has been elucidated as under:-
"xxx ...... if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.....
xxx"
32. In the above cited decision, Hon'ble Supreme Court went on to say that the notion of approaching every action of a police officer with initial distrust may not be proper. When a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused, it would be open to the Court to believe the version as correct, if it is not shown to be unreliable. Surrounding facts in entirely must be examined.
33. In another case titled as "Rajveer @ Millar And Ors. Vs. State, SC No. 123/2017 State Vs. Rizwan & Anr. Page 16 of 23 2016 IV AD (DELHI) 425", Hon'ble Delhi High Court has held as under:-
"xxx Presumption of honesty is as much available to a police officer which is available to any other official witness. There is no presumption that police officials are liars. The effect of non-joining of in independent witness is only that the court has to view the submission of the police or other witnesses with caution and circumspection and the veracity of the same has to be decided before placing reliance upon them for arriving at any conclusion regarding the guilt of the accused.
xxx"
34. There is no substance in the next argument raised on behalf of accused that in case any blade injury was caused on the neck of PW-1, he would have been bleeding from his neck and some blood would have also come on the blade but neither seized blade was sent to FSL for detection of blood nor any blood stain was found on it while it was produced during trial. The said argument is found to be misconceived as it has nowhere come on record that blood stains came on the blade while being used in the commission of crime. Rather, IO i.e. PW-6 explained during cross-examination that there was no blood stain on the recovered blade.
35. The next argument raised on behalf of accused persons that Ms. Sheeba Khan (sister of PW-1) to whom robbed mobile phone was belonging as per testimony of PW-1, is not made prosecution witness due to which prosecution case became doubtful, does not hold ground. PW-1 has already testified that his sister had executed authority letter (Ex.PW1/G) in his favour to get the robbed mobile phone released on superdari. Hence, his sister was not required to be cited as a prosecution witness as she never remained associated during SC No. 123/2017 State Vs. Rizwan & Anr. Page 17 of 23 investigation at any point of time.
36. There is indeed signature of father of accused Rizwan appearing at point X on his arrest memo (Ex.PW1/B) but same does not lead to any conclusion that said accused was lifted from his house or that signature of his father were obtained on his arrest memo at that time. It may be noted that no question whatsoever on this aspect is shown to have been asked on behalf of accused Rizwan during cross-examination of IO i.e. PW-6. In other words, PW-6 was never afforded any opportunity to explain as to how and under what circumstances, father of said accused had signed as one of the attesting witness to the arrest of said accused. The very fact that intimation regarding arrest of said accused, is mentioned to be given to his father Mehraj Nabi (D1W1), would give an impression that on being informed about the arrest of his son, he would have gone to the place of his arrest and was made one of the attesting witnesses. The heavy reliance placed by counsel of accused Rizwan on the testimony of D1W1, is considered to be wholly without any substance. Apart from the fact that he is an interested witness being father of accused Rizwan, his testimony does not inspire confidence in as much as he did not lodge any complaint either with concerned SHO or with any senior police officer regarding false implication of accused Rizwan or raised any grievance that said accused was lifted from his house in the manner as stated by him during chief examination. Moreover, no such defence was put on behalf of accused during cross-examination of PW-5 HC Manoj and of PW-6 ASI Brahmjeet Singh. Same would clearly show that false plea regarding lifting of said accused from his house, was created only after SC No. 123/2017 State Vs. Rizwan & Anr. Page 18 of 23 recording statements u/s 313 CrPC of accused persons. In any case, said plea remained unsubstantiated on record. Likewise, the testimony of D2W1 is also not found to be believable in as much as she failed to disclose the date, month or year when police officials took her grandson i.e. accused Mohd. Danish from the house. She is also not found to have lodged any complaint in that regard either with senior police officers or with any govt. authority and could not even disclose the names or rank of those police officials who had visited her house. She is also an interested witness being grandmother of said accused. No such defence was raised or put to prosecution witnesses during trial.
37. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Hon'ble Supreme Court in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302, which reads as under:-
"25. .... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. reasonable doubt is not an imaginary, trival or an merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the SC No. 123/2017 State Vs. Rizwan & Anr. Page 19 of 23 degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and,. Ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice."
38. It may be noted that PW-1 namely Arbaaz Khan is the complainant/victim in this case. He is shown to have sustained injury on his neck caused by the offender by giving blade blow on his neck. This fact stands duly proved from his MLC (Ex.PW3/A) which shows that he was found to have sustained incised wound measuring 0.5 cm x 0.2 cm on right side of his neck. It also stands established from the testimony of PW-3 who had prepared the aforesaid MLC after examining PW-1.
39. The careful perusal of the ocular testimony of PW-1 would show that same is quite natural, truthful and reliable as he has disclosed about the entire sequence of facts and the manner in which offence of robbery was committed by both these accused at the point of blade. There is no substance in the argument raised on behalf of accused persons that his testimony should not be believed as he is an interested witness. Rather, the situation is other way round. PW-1 is the injured witness. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless SC No. 123/2017 State Vs. Rizwan & Anr. Page 20 of 23 there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
40. In the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under:-
"xxxxxx The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in- guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness.
xxxxxx"
41. Reference may also be made to the case of "State of Uttar Pradesh Vs. Naresh & Ors.", 2011 AD (SC) 20 - wherein it was observed that:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence can not be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The 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, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
42. The police witnesses are also found to have duly corroborated each SC No. 123/2017 State Vs. Rizwan & Anr. Page 21 of 23 other with regard to the relevant investigation carried out in this case. Defence could not discredit the testimonies of police witnesses during their respective cross examination.
43. In their respective statements U/s 313 Cr.P.C. the defence of both the accused is of general denial. Although, they claimed themselves to be innocent by stating that they were falsely implicated in the present case but it would be anybody's guess as to why police officials would falsely implicate them in this case. This is more so when it is nowhere the defence of either of these accused that PW-1 was previously known to them or he was having any kind of ill-will or animosity against them so as to falsely depose against them during trial. No such suggestion is put to him on behalf of accused persons. If the accused persons want this Court to believe that they have been implicated falsely, the least which was expected from them was to at least come out as to what could have been the motive for the police for their false implication and as to what was that reason for which police officials could have done so. But no such reason is even mentioned or suggested to the police witnesses. The accused cannot expect this Court to believe their version by simple bare allegation that they are falsely implicated. In the absence of this, I do not find any reason to throw out the testimonies of the prosecution witnesses.
44. In the light of aforesaid discussion, Court is of the considered opinion that the prosecution has been successful in bringing home the guilt of both the accused persons in respect of offence punishable U/s 394/34 IPC, as also for the offence punishable U/s 397 IPC against accused Mohd. Danish, SC No. 123/2017 State Vs. Rizwan & Anr. Page 22 of 23 beyond pales of reasonable doubt. Consequently, they stand convicted for the said offences.
45. Let they be heard on the point of sentence.
Announced in open court
on 17th day of October, 2019. Digitally signed by
VIDYA PRAKASH
VIDYA Location:
PRAKASH Karkardooma Court
Date: 2019.10.17
15:54:25 +0530
(VIDYA PRAKASH)
Additional Sessions Judge /
NE / KKD Courts / Delhi.
SC No. 123/2017 State Vs. Rizwan & Anr. Page 23 of 23