Delhi District Court
State vs 1. Danish on 15 May, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 28803/2016
FIR No. : 218/2016
Under Section : 392/397/482/34 IPC & 27 Arms Act
PS : Pahar Ganj
CNR No. : DLCT01-010187-2016
State Versus 1. Danish
S/o Mr. Kamrul
R/o E-57/A-524, Nand Nagri
Delhi
2. Saddu
S/o Mr. Idrish
R/o K-Block, Sunder Nagri
Nand Nagri, Delhi
Permanent Add:
Village Nagina, PS Dharampur
District Bijnor, U.P.
Date of Institution : 08.08.2016
Date of Arguments : 29.04.2023
Date of Judgment : 15.05.2023
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 07.05.2016 at about 09.30 p.m. near Round About, Rani Jhansi Road, Delhi, within jurisdiction of PS Pahar Ganj, the accused persons, in furtherance of their common intention, robbed mobile phone and purse containing an amount of Rs. 1,000/- and PAN card etc. from Harish Chand (In short 'the complainant'). Thus, the accused persons are prosecuted for offence punishable under Section 392 read with Section 34 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. The accused, namely, Danish used a knife i.e. a deadly weapon at the time of committing robbery and as such, he is prosecuted under Section 397 IPC.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 1 of 20
3. The accused, namely, Danish used a motorcycle with forged registration plate i.e. DL 13S 6264 in place of DL 13SN 0156. Thus, he is prosecuted for offence under Section 471 IPC.
4. The accused, namely, Danish used a knife in breach of Section 4 of 'The Arms Act, 1959'. Thus, he is prosecuted for offence punishable under Section 27 Arms Act. CHARGE-SHEET:
5. The case of the prosecution, as surfaced in the statement of the complainant, is that on 07.05.2016 at about 09.30 p.m., he was proceeding to his house on scooty bearing registration No. DL 9S AP 8205 via Rani Jhansi Road. At round about of Rani Jhansi Road, the accused persons suddenly stopped their motorcycle in front of him. The complainant somehow prevented himself from falling on the road. The accused, namely, Danish, who was sitting on the pillion seat, alighted from the motorcycle and placed a knife on neck of the complainant while stating that the complainant should give him whatever he had and taken out purse from rear pocket of jeans of the complainant. The accused, namely, Saddu, who was driving the motorcycle, taken out mobile phone from another pocket of jeans of the complainant. On seeing a police gypsy, the complainant raised alarm. SHO, PS Pahar Ganj alongwith his staff chased and apprehended the accused persons. Mobile phone of the complainant was recovered from right pocket of pyjama of the accused, namely, Saddu. Two mobile phones were also recovered from left pocket of his pyjama. One knife and purse of the complainant containing his DL and amount of Rs. 1,000/- was recovered from right pocket and 2 mobile phones were recovered from left pocket of trousers of the accused, namely, Danish.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 2 of 20
6. PW-7 SI Devender Pranava prepared sketch of the said knife Ex.PW3/A. He kept the said knife and five mobile phones, and purse in three separate envelopes and sealed them with his seal having impression DP and seized them, vide seizure memo Ex.PW2/D, Ex.PW2/E and Ex.PW2/F respectively. He seized motorcycle of the accused persons, vide seizure memo Ex.PW2/G. He recorded statement of the complainant. He made endorsement for registration of case.
7. After registration of FIR under Section 392/397/34 IPC and 27 Arms Act, PW-7 SI Devender Pranava prepared site plan of the place of incident Ex.PW7/B. He arrested the accused persons, namely, Danish and Saddu, vide arrest memos Ex.PW2/A and Ex.PW2/B respectively. He deposited the case property in police malkhana. Pursuant to order dated 11.05.2016, the mobile phone of the complainant alongwith his purse containing DL and amount of Rs. 1,000/- were released on superdari to the complainant. He recorded statements of previous owners of motorcycle No. DL 13SM 0156.
8. On conclusion of investigation, PW-7 SI Devender Pranava charge-sheeted the accused persons. COMMITTAL PROCEEDINGS:
9. Vide order dated 25.07.2016, the jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
10. Vide order dated 03.09.2016, the accused persons were charged for committing offence under Section 392/34 IPC.
The accused, namely, Danish was also charged under Section 397 and 471 IPC and 27 Arms Act. They pleaded not guilty and claimed trial.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 3 of 20 PROSECUTION EVIDENCE:
11. The prosecution examined 8 witnesses, as under:
The witnesses Description of the witnesses PW-1 HC Sawaliya Ram Duty Officer, PS Pahar Ganj.
Meena PW-2 Harish Chand The complainant. PW-3 HC Rakesh Kumar Arrest and recovery witness. PW-4 SI Harpal Singh Brought DD register. PW-5 Gaurav Singhal Sold motorcycle to Danish. PW-6 Asif Sold motorcycle to Gaurav Singhal.
PW-7 SI Devender Pranava Investigating Officer. PW-8 ASI Jal Singh In-Charge, Police Malkhana, MHC (M).
EXAMINATION OF THE ACCUSED PERSONS:
12. Incriminating circumstances appearing in evidence were explained to the accused persons, as required under section 313 Cr.P.C. They denied each and every circumstance appearing in evidence against them. They pleaded innocence and claimed false implication. They stated that they had a quarrel with an auto driver as their motorcycle touched an auto-rickshaw. They stated that there was a police gypsy on other side of the road. Police officials came and false implicated them at the instance of auto-
rickshaw driver.
APPEARANCE:
13. I have heard Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. S.S. Rawat, Advocate for the accused persons. CONTENTIONS OF THE PROSECUTION:
14. Ld. Addl. PP for the State contended that the complainant deposed the entire incident. He contended that the complainant identified his signatures on statement Ex.PW1/A, arrest memos Ex.PW2/A and Ex.PW2/B, and seizure memos Ex.PW2/D to Ex.PW2/G respectively.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 4 of 20
15. Ld. Addl. PP for the State contended that the complainant identified the robbed mobile phone Ex.PX1 and purse Ex.PX2. He contended that the complainant has not stated that the accused persons did not rob him. He contended that the accused persons were apprehended immediately at the place of incident and recovery of mobile phone and purse of the complainant was effected from them. He contended that Section 114 (a) of 'The Indian Evidence Act' provides that the Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. He contended that a dagger type knife was recovered from the accused, namely, Danish. He contended that the accused persons have failed to account for possession of stolen goods and the said knife. He contended that PW-7 SI Devender Pranava and PW-3 HC Rakesh Kumar proved apprehension of the accused persons on alarm raised by the complainant at the place of incident and recovery of robbed articles and the said knife from them. He contended that evidence of police officials cannot be doubted in the absence of any enmity or malice on their part. He contended that there was no delay in recording of statement of the complainant and registration of FIR. He contended that the time of incident was about 09.30 p.m. on 07.05.2016 and the case FIR was recorded on 08.05.2016 at about 12.05 a.m. He contended that the complaint Ex.PW1/A and FIR Ex.PW3/A lend corroboration to the evidence of PW-7 SI Devender Pranava and PW-3 HC Rakesh Kumar. He contended that DD No. 45B Ex.PW4/A and DD No. 20A Ex.PW4/B proved presence of PW-7 SI Devender Pranava, PW-3 HC Rakesh Kumar and other police officials at the place of incident. He contended that the prosecution proved charges against the accused persons.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 5 of 20 CONTENTIONS OF THE DEFENCE:
16. Ld. Defence Counsel contended that the complainant (PW-2) has not supported the case of the prosecution. He contended that the complainant did not identify the accused persons. He contended that the accused persons had an altercation with an auto driver and they were falsely implicated in several cases. He contended that the prosecution has not examined material witnesses i.e. Insp. Rajender Kumar and Ct.
Akshay. He contended that the prosecution has not given reasonable explanation for non-examination of such important witnesses. He contended that no recovery was effected from the accused persons. He contended that the prosecution has not examined any public witness to prove recovery of stolen mobile phone and purse, and knife from the accused persons. He contended that the prosecution has failed to prove charges against the accused persons.
STATUTORY PROVISIONS:
17. Relevant statutory provisions are, as under:
390. Robbery.-In all robbery there is either theft or extortion.
When theft is robbery.- Theft is ''robbery'' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.- Extortion is ''robbery'' if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 6 of 20 Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
392. Punishment for robbery.- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
JUDICIAL PRECEDENTS:
18. In Venu @ Venugopal & Ors. vs. State of Karnataka, (2008) 3 SCC 94, Hon'ble Supreme Court of India held as under:
"8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 7 of 20 Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough."
19. In Ganesan vs. State Rep. by Station House Officer, 2021 SCC OnLine SC 1023, Hon'ble Supreme Court of India held, as under:
"47. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
3. ''Offender'' refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It is only envisages the individuals liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused."
(a) Whether the accused persons committed offence under Section 392 read with Section 34 IPC?
20. To prove its case, the prosecution examined the complainant as PW-2. He deposed, as under:
"I am residing on the above said address and do the business of book binding at Paharganj. On 06/07 of May 2016 at about 9-9.30 p.m., I was going to Uttam Nagar from Paharganj by my Activa Scooty bearing registration No. ....8205. When I reached Rani Jhansi Road, two boys came on the motorcycle.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 8 of 20 They stopped me in the side and I thought that enquiring about address. They robbed me and took my mobile and purse. My purse was containing Rs. 1000/- and PAN Card etc. One of them had shown a knife to me while committing the robbery. The robbers had thrown my key on the road and both the robbers were apprehended by Police at some distance. My mobile phone was recovered from one of the robbers. The mobile phone was seized by the police. My purse was also recovered from one of the accused persons. Both the accused persons were arrested. Police recorded my statement is already Ex.PW1/A bearing my signature at Point 'Y'. Both the accused persons were arrested vide Arrest Memo Ex.PW2/A and Ex.PW2/B, both bearing my signatures at Point 'A'. Their personal search was taken vide memo Ex.PW2/C and Ex.PW2/D respectively, both bearing my signatures at Point 'A'. I cannot say whether accused Danish and Saddu present in the court are the same persons who had robbed me on that day."
(emphasis supplied)
21. It is evident that the complainant has narrated the incident. Though there are slight deviation from his initial statement pertaining to the mode of interception and manner of robbery. However, he stated that he was not certain whether the accused persons are the same persons who had robbed him.
22. Non-identification of the accused persons by the victim of the crime is a most crucial aspect of the case.
23. The prosecution cross-examined the complainant. In his cross-examination, he admitted that the police seized a knife, vide seizure memo Ex.PW2/D. He admitted that the name of the person, from whom the said knife was recovered, is mentioned as 'Danish' in seizure memo Ex.PW2/D. He admitted that the police recovered his purse and two mobile phones from one of the robbers, vide seizure memo Ex.PW2/E. He admitted that the name of the person, from whom the said articles were recovered, is mentioned as 'Danish' in seizure memo Ex.PW2/E. FIR No. 218/2016 State vs. Danish & Anr. Page No. 9 of 20
24. In his cross-examination, the complainant admitted that the police recovered his mobile and two other mobile phones from one of the robbers, vide seizure memo Ex.PW2/F. He admitted that the name of the person, from whom the said mobile phones were recovered, is mentioned as 'Saddu' in seizure memo Ex.PW2/F. He admitted that the motorcycle used by the accused persons was seized, vide seizure memo Ex.PW2/G. However, he denied the suggestion that the accused persons had robbed him and they were arrested in his presence and his mobile phone and purse were recovered from him, as under:
".....It is wrong to suggest that accused Danish and Saddu present in the court are the same person who had robbed me. It is wrong to suggest that since the accused persons Danish and Saddu had robbed me, so they were arrested by police in my presence and my mobile phone and purse were recovered from them....."
25. In his cross-examination by the defence, the complainant admitted that the accused, namely, Danish and Saddu are not the persons who robbed him, as under:
"It is correct that accused Saddu present in the court was not amongst the persons who robbed me. It is correct that accused Danish present in the court was not amongst the persons who robbed me."
26. Section 114 (a) of 'The Indian Evidence Act' is, as under:
"114. Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume-
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"
FIR No. 218/2016 State vs. Danish & Anr. Page No. 10 of 20
27. The Court may draw presumption under Section 114
(a) of 'The Indian Evidence Act' that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
28. The court can convict an accused exclusively on the basis of recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and it should not be shrouded with elements of doubt. The testimony and trustworthiness of the recovery witnesses are the relevant considerations that assist the Court in appreciating intrinsic worth of evidence and credibility of the recovery. Where depositions of the prosecution witnesses do not inspire confidence in the manner of the recovery, the Court must extend benefit of doubt to the accused.
29. On examination of intrinsic worth of evidence of recovery witnesses, this Court is of the considered opinion that their evidence pertaining to the recovery is not credible.
30. It is true that the prosecution need not to examine a particular number of witnesses to prove its case. The Court is not concerned with quantity of evidence but with the quality of evidence.
31. It is an established proposition of law that police officials are competent witnesses and their evidence cannot be discarded on the sole ground that they belonged to police force. Police officials are acting in discharge of their duties. Their evidence cannot be doubted in the absence of any malice or enmity on their part. However, their evidence must be scrutinized with circumspection and caution.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 11 of 20
32. The case of the prosecution, as stated in the charge- sheet, is that Insp. Rajender Kumar, SHO, PS Pahar Ganj alongwith PW-3 HC Rakesh and Ct. Akshay was patrolling in the area and on hearing alarm of the complainant, he alongwith his accompanying staff apprehended the accused persons. However, the prosecution has not examined Insp. Rajender Kumar, SHO, PS Pahar Ganj and Ct. Akshay. They are material witnesses of the prosecution. They responded to the alarm raised by the complainant. They apprehended the accused persons. Their non-examination is a serious infirmity in the case of the prosecution. Non-examination of such material witnesses goes to the core of the case of the prosecution. The prosecution has not furnished any reasonable explanation for their non-examination.
33. The prosecution examined PW-3 HC Rakesh Kumar to prove arrest of the accused persons and recovery of stolen articles from the accused persons. He deposed, as under:
"On 07.05.2016, I was posted as HC at PS Paharganj, Delhi. On that day, I was on area patrolling alongwith Insp. Rajinder Kumar and Ct. Akshay. At about 9.30 p.m., we reached near Cremation ground, Rani Jhansi Road and we heard some alarm 'bachao bachao'. Hearing the alarm, we apprehended two boys whose names were revealed as Danish and Saddu. On the formal search of accused Saddu, one black colour XOLO Mobile phone was recovered. In the meantime, complainant Harish Chand came to the spot and met with the IO. During formal search of accused Danish, one knife, two mobile phones and one purse containing Rs. 1000/- and Driving License of complainant. The sketch of the knife Ex.PW3/A was prepared, which bears my signature at Point A. The knife was converted into the sealed parcel, sealing the same with the seal of IO and was seized vide Seizure Memo already Ex.PW2/D, bearing my signature at Point B. The purse and mobile phone of the complainant were also seized vide Seizure Memo already Ex.PW2/E, bearing my signature at Point B. FIR No. 218/2016 State vs. Danish & Anr. Page No. 12 of 20 The XOLO Mobile phone of complainant alongwith other mobile phones which were recovered from accused Saddu were also seized vide Seizure Memo already Ex.PW2/F, bearing my signature at point B. One motorcycle was also seized from the spot vide Seizure Memo already Ex.PW2/G, bearing my signature at point B. Thereafter, we went to the hospital where the medical examination of the accused persons were conducted and then we returned to the PS. Both the accused persons are present in the court (correctly identified)."
34. On examination of evidence of PW-3 HC Rakesh Kumar, it is evident that he has not stated as to whether PW-7 SI Devender Pranava reached at the place of incident and when he reached at the place of incident. He has not stated anything regarding recording of statement of the complainant by PW-7 SI Devender Pranava. He is a witness to arrest of the accused persons. However, he has not stated anything regarding arrest of the accused persons. He is a witness to site plan of the place of incident. However, he has not stated anything regarding site plan of the place of incident. He is also a witness to disclosure statements of the accused persons. He has also not stated anything regarding disclosure statements of the accused persons. The evidence of PW-3 HC Rakesh Kumar is deficient and sketchy. It lacs material particulars.
35. PW-7 SI Devender Pranava is the Investigating Officer. He deposed, as under:
"On 07.05.2016, I was posted at PS Pahar Ganj. On that day, after completion of Pashuram Jyanti procession, I along with HC Rakesh, Ct. Akshay, Driver HC Maman and SHO, PS Pahar Ganj reached near Shamshan Ghat and Videocon Tower. It was about 09.30 p.m. we heard the noise of 'bachao bachao' from the opposite side of Shamshan Ghat i.e. on Rani Jhansi Road.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 13 of 20 After hearing the noise, I along with staff reached there and apprehended two persons along with motorcycle make CBZ Extreme of black colour. On victim namely Harish Chand was also found there and he told us that he was robbed by the said two persons.
On enquery the names of the said two persons revealed as Saddu and Danish. On the cursory search of Saddu one mobile phone was recovered from the right side of his pant. The said mobile phone was revealed to be robbed from the abovenamed victim namely Harish Chand. Two more mobile phones were also recovered from the left pocket of his wearing pant. But the said mobile phone were belonged to some other case of robbery.
On the cursory search of Danish, one knife was found from the right dhub pocket (inside pocket) of his pant. One purse containing driving licence and cash of Rs. 1000/- was also recovered from the right pocket of his pant. The said purse containing driving licence and cash of Rs. 1000/- were stated to have belonged to the complainant Harish Chand. Two mobile phones were also recovered from the wearing pant of the accused Danish. The said mobile phones pertaining to some other case of robbery. The mobile phones recovered from the possession of accused Saddu were converted into three separate parcels and sealed with the seal of DP. I seized the said parcels vide seizure memo already Ex.PW2/F bearing my signature at point C. I prepared the sketch of knife and measured the same. The sketch of knife is Ex.PW3/A bearing my signature at point B. The knife was sealed in a parcel with the seal of DP and then seized the same vide seizure memo already Ex.PW2/D bearing my signature at point C. The two mobile phones and the purse containing the driving licence and money were also converted into three separate parcels and sealed them with the seal of DP. I seized all the three parcels through the seizure memo already Ex.PW3/E bearing my signature at point C. Thereafter, I recorded the statement of complainant Harish Chand vide Ex.PW1/C and attested the same by me at point X. I prepared rukka on the basis of statement of complainant. Rukka is Ex.PW7/A bearing my signature at point A. The rukka appended to the statement of complainant sent to police station through Ct. Akshay for registration of FIR.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 14 of 20 Then, I prepared the site plan of the place of occurrence, which is Ex.PW7/B bearing my signature at point A. In the meantime, Ct. Akshay brought the copy of FIR at the spot and handed over to me along with the original rukka. I put the FIR number on the documents prepared by me at the spot. After making enquiry, I arrested two persons namely Saddu and Danish. Both are present in the court today (correctly identified).
I prepared the arrest memo of accused Danish vide Ex.PW2/A bearing my signature at point B. I also conducted the personal search of accused Danish and prepared memo thereof vide memo Ex.PW2/C bearing my signature at point B. I also arrested accused Saddu and prepared memo thereof vide memo Ex.PW2/B bearing my signature at point B. The personal search of accused Saddu was also conducted and prepared memo to this effect vide Ex.PW2/D bearing my signature at point B. Both the accused persons were got examined and then lodged in the lock up in the police station. Both the accused persons were arrested in this case in the presence of complainant but since they were found in possession of other robbed articles, thus they were kept in muffled face. One motorcycle bearing, description of which stated above, was also seized in this case vide seizure memo already Ex.PW2/G bearing my signature at point C. The said motorcycle was belonged to accused Danish but he was plying the same by putting a fake number plate on it. I do not remember the genuine registration number of the motorcycle. I also do not remember the fake number. I can tell the registration number of the said motorcycle after refreshing my memory. (At this stage, the witness is allowed to refresh his memory.) The registration number of the said motorcycle is DL13 SM 0156. The fake number was not visible on the number plate of the motorcycle at the time of seizure as the registration number was got badly fade. On 08.05.2016 both the accused persons were produced before Ld. Magistrate. I also furnished the information to the concerned police station as per the disclosure statements of the accused persons regarding the robbery of other articles. I recorded the statement of witnesses. After completion of investigation, chargesheet was prepared and filed before the court."
FIR No. 218/2016 State vs. Danish & Anr. Page No. 15 of 20
36. It is evident from perusal of statement of PW-7 SI Devender Pranava that he stated that on 07.05.2016, he alongwith SHO, PS Pahar Ganj, HC Rakesh Kumar, Ct. Akshay and Driver HC Maman reached near Cremation Ground. He stated that at about 09.30 p.m., on hearing alarm, he alongwith staff reached there and apprehended the accused persons. He stated that he had taken search of the accused persons and recovered knife, mobile phones alongwith purse containing DL and amount of Rs. 1,000/- and mobile phones which he seized, vide seizure memos Ex.PW2/D to Ex.PW2/F. He stated that he recorded statement of the complainant Ex.PW1/A and made endorsement Ex.PW7/A for registration of FIR. He stated that he handed over rukka to Ct. Akshay for registration of FIR. He stated that he prepared site plan of the place of incident. He stated that he arrested the accused persons, vide arrest memo Ex.PW2/A and Ex.PW2/B respectively.
37. If evidence of PW-7 SI Devender Pranava is examined in the light of evidence of PW-3 HC Rakesh Kumar. It is evident that PW-3 HC Rakesh Kumar has not stated anything regarding presence of PW-7 SI Devender Pranava at the place of incident. He has not stated anything regarding recording of statement of the complainant and preparation of rukka. He has not stated anything regarding preparation of site plan of the place of incident Ex.PW7/B. He is a witness to arrest memos Ex.PW2/A and Ex.PW2/B and personal search memos Ex.PW2/C and Ex.PW2/D respectively. Therefore, the case of the prosecution pertaining to apprehension of the accused persons at the place of incident, mode of their apprehension and manner of recovery is highly doubtful.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 16 of 20
38. The prosecution has not led any evidence to prove ownership of mobile phone of the complainant.
39. The doctrine, 'falsus in uno, falsus in omnibus' is not applicable in India. The Court can act upon evidence of a witness who has not supported the case of the prosecution provided the deficiency in his evidence is otherwise supplemented by other substantive evidence on record.
40. In Vadivelu Thevar & Anr. vs. State of Madras, AIR 1957 SC 614, Hon'ble Supreme Court of India held, as under:
"11.....Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial....."
41. The authenticity and credibility of recovery of articles belonging to the complainant from the accused persons at the place of incident do not inspire confidence. There are material contradictions, deficiencies and inconsistencies in evidence of PW-7 SI Devender Pranava and PW-3 HC Rakesh Kumar alongwith non-examination of Insp. Rajender Kumar and Ct. Akshay. The evidence of PW-7 SI Devender Pranava and PW-3 HC Rakesh Kumar is 'wholly unreliable'.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 17 of 20
42. Therefore, the prosecution has failed to establish that the accused persons robbed the complainant and therefore, the prosecution failed to prove the charge under Section 392/34 IPC against the accused persons.
(b) Whether the accused, namely, Danish committed offence under Section 397 IPC and 27 Arms Act?
43. The complainant has not identified the accused persons. There is no evidence that the accused, namely, Danish used knife during the course of commission of robbery. Moreover, the prosecution failed to prove offence of robbery. Therefore, the prosecution failed to establish offence under Section 397 IPC and 27 Arms Act against the accused, namely, Danish.
(c) Whether the accused, namely, Danish committed offence under Section 471 IPC?
44. As regards the case of the prosecution pertaining to use of forged number plate by the accused, namely, Danish on his motorcycle, it is seen that PW-7 SI Devender Pranava categorically stated that the fake number was not visible as the registration number on the plate had faded. Moreover, the prosecution neither seized nor produced the registration plate for inspection of the Court. Therefore, the prosecution failed to prove the charge under Section 471 IPC against the accused, namely, Danish.
CONCLUSION:
45. Accordingly, the accused persons, namely, Danish and Saddu are acquitted from offence punishable under Section 392 read with Section 34 IPC. The accused, namely, Danish is acquitted from offences punishable under Section 397 and 471 IPC and 27 Arms Act.
FIR No. 218/2016 State vs. Danish & Anr. Page No. 18 of 20 File be consigned to record room.
Digitally signed by SANJAYSANJAY SHARMA SHARMA Date: 2023.05.15 15:40:54 +0530 Announced in the open Court SANJAY SHARMA-II on this 15th May, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi FIR No. 218/2016 State vs. Danish & Anr. Page No. 19 of 20 State vs. Danish & Anr. CNR No.: DLCT01-010187-2016 SC No. 28803/2016 FIR No. 218/2016
Under Section 392/397/482/34 IPC & 27/54/59 Arms Act PS Pahar Ganj 15.05.2023 Present: Mr. Amit Dabas, Ld. Addl. PP for the State.
Mr. S.S. Rawat, Advocate with the accused persons.
Vide separate judgment announced in the open Court, the accused persons, namely, Danish and Saddu are acquitted from offence punishable under Section 392 read with Section 34 IPC. The accused, namely, Danish is acquitted from offences punishable under Section 397 and 471 IPC, and 27 Arms Act. The accused persons already furnished personal bond in the sum of Rs. 30,000/- each, as required under Section 437A Cr.P.C. Bail bond shall remain in operation for a period of six months from the date of judgment. The accused persons are informed to appear before the appellate Court, as and when any notice is received by them. File be consigned to Digitally signed by SANJAY record room. SANJAY SHARMA Date:
SHARMA 2023.05.15 15:41:13 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi 15.05.2023 FIR No. 218/2016 State vs. Danish & Anr. Page No. 20 of 20