Delhi District Court
Mohd. Rizwan vs State (Govt. Of Nct Of Delhi) on 18 December, 2023
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL
SESSIONS JUDGE - 05: SOUTH EAST,
SAKET COURT, NEW DELHI
CNR No. DLSE01-000941-2019
CRL. APPEAL No. 73/2019
U/S. 374 Cr. P. C.
PS: SUNLIGHT COLONY
IN THE MATTER OF:
MOHD. RIZWAN
S/o. MOHD. NASIR
R/O. H. NO. T-86,
VIKASH CHOUDHARY KA MAKAN,
SARAI KALE KHAN,
NEW DELHI.
APPELLANT.........
VERSUS
STATE.
RESPONDENT......
OTHER DETAILS :
DATE OF INSTITUTION : 07.02.2019
DATE OF RESERVING ORDER : 02.11.2023
DATE OF ORDER : 18.12.2023
APPEAL U/S. 374 CR. P. C. AGAINST JUDGMENT DATED
08.01.2019 AND ORDER OF SENTENCE DATED
09.01.2019 OF LD. MM (SOUTH-EAST)-07, SAKET
COURTS, IN CASE FIR NO. 378/2016
JUDGMENT
1. Appellant Mohd. Rizwan is aggrieved by the impugned judgment dated 08/01/2019 of Ld. MM (South-East)-07, Saket Courts, vide which he was convicted for offence U/s. 394/34 IPC and by order on sentence dated 09/01/2019 vide which he was CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 1/10 sentenced to Rigorous Imprisonment of three years alongwith fine of Rs.10,000/- in case FIR No. 378/2016, PS Sunlight Colony. In default of payment of fine, appellant was ordered to undergo sentence of Simple Imprisonment of six months. The entire fine amount was ordered to be paid to victim Jai Dev, as compensation. It is noted that, although, accused Imtiyaz Ali @ Dukhiya was convicted and sentenced alongwith appellant Mohd. Rizwan, only appellant Mohd. Rizwan preferred the present appeal against conviction and sentence.
2. The prosecution case in brief is that on 19/08/2016, at about 06:30 PM, in jungle, in front of Gurgaon Bus Stand, Sarai Kale Khan, Delhi, appellant/convict Mohd. Rizwan alongwith co-accused Imtiyaz Ali @ Dukhiya and their one more associate (not arrested), in furtherance of their common intention, voluntarily caused head injury to complainant Jai Dev with a piece of brick, while robbing him of his bag containing his clothes and identity card. Accused Mohd. Rizwan was arrested on the same day i.e. 19/08/2016, whereas, co-accused Imtiyaz Ali @ Dukhiya was arrested on 20/08/2016 and was charged for the offence U/s. 394/34 IPC.
3. As per Trial Court record, to prove its case, the prosecution examined following three witnesses during trial of the case:
4. PW1/complainant/victim Jai Dev deposed that on 19/08/2016, at about 06:00PM, when he went towards side of the main road to attend natural call, four persons came to him and caught hold of him, out of whom one held his arms, another one CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 2/10 put his hand in mouth of PW1, third one picked a piece of brick from ground and caused head injuries to complainant by hitting it on his head, whereas, the fourth one robbed complainant of his pink colour bag that contained his clothes and election I-Card. He deposed that on shouting, all the assailants fled away from there. He deposed that he ran towards a nearby police vehicle that was standing under flyover near Sarai Kale Khan and narrated the whole incident to police officials. He deposed that while searching the offenders, when he alongwith the police officials reached near Sarai Kale Khan petrol pump, they saw that all the four offenders were running towards the passage that led to the Jungle. He deposed that they apprehended accused Mohd. Rizwan, whereas, the other three managed to escape. However, nothing was recovered from possession of accused Mohd. Rizwan. He identified accused Mohd. Rizwan in Court. He further deposed about conducting of his medical examination and recording of his statement Ex. PW1/A by police.
5. PW2 ASI Suresh deposed that on 19/08/2016 he alongwith driver Ramesh and Ct. Mata Prasad was posted as In-charge, PCR Van Kite-72 and, at about 06:30, one boy namely Jai Dev with bleeding head came to them and told that three persons had snatched his bag after hitting him with piece of brick on his head, and, thereafter, ran away from there towards the jungle near Sarai Kale Khan. He further deposed about searching of the offenders alongwith the victim, apprehension of accused Mohd. Rizwan near Indian Oil Petrol Pump, Sarai Kale Khan, at the instance of victim, calling police at 100 number, handing over of accused Mohd. Rizwan to SI Ram Kishore, who recorded his statement.
CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 3/106. PW3 IO SI Ram Kishore deposed about handing over of accused Mohd. Rizwan to him by HC Suresh Kumar, In-charge PCR Van Kite-II on 19/08/2016, at about 06:30PM in presence of complainant. HC Suresh Kumar told him about robbery committed by Rizwan and his associates with the complainant after beating him. He deposed that since the complainant had sustained injuries, HC Suresh alongwith the complainant went to hospital and made a call vide DD No. 32PP, Ex. PW3/A, Sarai Kale Khan. He further deposed about collecting the MLC of complainant as well as recording of his statement, registration of FIR Ex. PW3/B, recording of disclosure statement Ex. PW3/C, arrest and personal search of accused Rizwan.
7. Since accused Mohd. Rizwan, through his separate statements recorded U/s. 294 CrPC, on 24/08/2018 and 18/10/2018, admitted contents and genuineness of the documents i.e. (i) registration of FIR Ex. PA-1 and (ii) MLC bearing No. 578800/16, Ex. PA-2 of victim Jai Dev, the requirement to prove the said documents through concerned PWs was obviated.
8. All the incriminating evidence that came on record in deposition of prosecution witnesses was put in detail to accused Mohd. Rizwan and his statement was recorded U/s. 313. He denied all incriminating evidence and asserted that police lifted him from his house and falsely implicated him in this case. The appellant/accused examined DW2 Mohd. Nasir and DW3 Mohd. Guddu in his defence.
CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 4/109. Upon hearing the final arguments from both sides, Ld. Trial Court vide its judgment dated 08/01/2019 held the appellant/accused guilty of offence U/s. 394/34 IPC and sentenced him vide order on sentence dated 19/01/2019.
10. Ld. Counsel for appellant argued that Ld. Trial Court did not appreciate lacunae and contradiction in the testimonies of prosecution witnesses. Ld. Trial Court wrongly discarded the depositions of defence witnesses. He argued that there was no independent witness to corroborate the testimony of prosecution witnesses, whereas, the testimonies of prosecution witnesses was not trustworthy as they were interested witnesses. It was argued that prosecution miserably failed to prove its case beyond reasonable doubt. With these arguments, the appellant prayed that impugned judgment and order on sentence may be set aside.
11. Ld. Addl. PP for State/respondent has opposed the appeal stating that prosecution has proved its case against the appellant and Ld. Trial Court has rightly convicted and sentenced him.
12. I have heard rival contentions from both sides and perused the record.
13. Ld. Counsel for appellant argued that in his deposition PW1 Jaid Dev replied that he was surrounded and beaten by 4-5 boys, whereas, he stated in FIR that three offenders had surrounded and robbed him. It is observed that it was very slight contradiction / improvement in the testimony of victim/PW1 Jai Dev to affect its trustworthiness.
CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 5/10Ld. Counsel for appellant argued that PW1 Jai Dev deposed that he could not specifically say if he was hit with brick by accused Rizwan or by other offenders. In this regard, it is observed that from the evidence it was established that all the offenders, including appellant Mohd. Rizwan had common intention to rob victim Jai Dev, on account of which Mohd. Rizwan was liable to share criminal responsibility for causing bodily injuries to the victim in pursuance of robbery, although, it was not established as to which of the offenders actually injured the victim with brick.
14. In reference to argument related to non-joining of independent public person by the IO, victim/PW1 Jai Dev replied in cross-examination that public was present when police arrived at the spot. The police did not inquire from public about the incident but took PW1 in their police gypsy towards the jungle where the accused persons had fled. It is observed that it was more urgent for police to move in hot pursuit and apprehend the fleeing offenders with help of victim Jai Dev, rather than to waste time in inquiring about the incident from public persons who gathered at the spot. Anyhow, PW1 explained that when he raised hue and cry for help after offenders robbed his bag and fled, public persons came there but did not help in searching the fleeing offenders.
In hot chase of fleeing offenders, PCR official i.e. PW2 ASI Suresh Chand and victim/PW1 Jai Dev went in PCR gypsy Kite-72 and spotted four offenders near an Indian Oil Petrol Pump, Sarai Kale Khan. At the pointing out of PW1 Jai Dev, CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 6/10 accused Rizwan was apprehended. After arrest of accused Rizwan, injured/victim Jai Dev, who was bleeding on his head, was taken by PW2 Suresh Chand to AIIMS Hospital, where his MLC Ex. PA-2 was prepared. As per MLC, victim Jai Devi had sustained laceration over vertex region of head, abrasion over vertex region of head and swelling over dorsum of right hand. The incident occurred on 19/08/2016 at around 06:30PM, whereas, the MLC of victim Jai Dev was prepared in AIIMS Hospital shortly thereafter at 07:10PM. As per MLC, patient Jai Dev was taken to AIIMS Hospital by police official Suresh Chand. Thus, the testimony of PW1 Jai Dev regarding injuries caused to him during the robbery was corroborated by medical evidence.
15.(i) Ld. Counsel for appellant argued that during the trial accused Mohd. Rizwan examined two defence witness i.e. DW2 Mohd. Nasir and DW3 Mohd. Guddu. DW2 Mohd. Nasir briefly deposed that in year 2016 on 19th day of a month he came to know from his wife that his son Rizwan had been picked up by police. He went to police station, only to be told there that Rizwan shall be released from police station after interrogation. However, on next date, he came to know that police officials had lodged a case against him. In cross-examination, DW2 replied that he did not make any call to police at 100 number that his son Rizwan was picked up by police.
15.(ii) It is observed that testimony of DW2 is too brief and deficient in details to be read in evidence. DW2 himself did not know why, from where and on which date and month was CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 7/10 Rizwan arrested by police. Even his deficient deposition was that of an interested witness, as rightly observed by Ld. Trial Court.
15.(iii) DW3 Mohd. Guddu deposed that on 19/08/2016 three police officials came to house of accused Rizwan. On being inquired, DW3 told police that Rizwan was sleeping in his room. Police picked up Rizwan from his home and told him that Rizwan shall be released after interrogation. Thereupon, DW3 went to his work. In cross-examination, DW3 replied that he did not call police at 100 number to report that Rizwan was wrongfully picked by police.
15.(iv) It is observed that just like DW2, the deposition of DW3 is too brief and deficient in necessary details to be relied upon in evidence. He resided in the same house as accused Rizwan and was an interested witness. He also did not call police to report the alleged wrongful lifting and arrest of accused Rizwan from his home. His deposition too was rightly rejected by Ld. Trial Court.
16. Ld. Trial Court rightly observed that before the incident PW1/victim Jai Dev and PW2 ASI Suresh Chand had no acquaintance or enmity with accused Mohd. Rizwan and had no possible motive to falsely implicate him or to somehow get him convicted for robbery. Thus, the testimony of PW1 and PW2 was not that of interested witnesses.
17. The law regarding testimony of an injured victim of the offence is well settled. For appreciating the evidence of the victim, the Court has to bear in mind that the presence of such CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 8/10 witness at the time and place of the occurrence cannot be doubted. While appreciating his evidence, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. Being the victim/eye witness of the crime, he would be most keen to ensure that the real culprit does not go scot free and there is no reason that he would frame any innocent person in such a serious offence which he had alleged completely knowing its implications without any previous enmity with him. Hon'ble Delhi High Court in Chuni Lal vs. State of Delhi, Crl. A. No. 262/2003, decided on 08.08.2013, has held as under:-
"11. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustain injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:
"28. 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 this 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." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW
4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 9/10 evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
30. The law on the point can be summarised to the effect that 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 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 there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
12. To the similar effect is the judgment reported in Mano Dutt and Anr. Vs. State of UP, (2012) 2 SCC (Cri) 226."
18. In view of cogent and reliable evidence led by prosecution, I am of the considered view that Ld. Trial Court rightly convicted appellant Mohd. Rizwan for offence U/s. 394/34 IPC and, therefore, the present appeal so far as it impugns the judgment of conviction for said offence stands dismissed. The issue of sentence shall be considered on completion of due procedure.
Announced in the open court dated: 18.12.2023 (VISHAL SINGH) ADDL. SESSIONS JUDGE-05, SOUTH-EAST, SAKET COURTS, NEW DELHI CA No. 73/2019 Mohd. Rizwan Vs. State Page No. 10/10