Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 28, Cited by 0]

Delhi District Court

State vs . 1. Kayam @ Kayyum S/O Ashik Ali, on 2 September, 2008

                                             1

IN THE COURT OF SH. DILBAGH SINGH : ADDITIONAL SESSIONS JUDGE :           
                  KARKARDOOMA COURTS : DELHI :


Sessions Case No. 63/07
Date of Institution :­ 05.05.2007
Date on which reserved for order :­30.08.2008 
Date of Delivery of Judgment :­ 02.09.2008


State   Vs.     1.     Kayam @ Kayyum S/o Ashik Ali,
                       R/o Kali Mandir, Meenakshi Enclave,
                       PS Loni, District Ghaziabad, U.P.


                2.     Ashok Pal Singh S/o Sh. Raj Pal,
                       R/o F­1/127, Sunder Nagri, 
                       Delhi.


                3.     Naushad S/o Ansar Ali,
                       R/o Jhuggi No.3, Gali No.13,
                       Molla Kader Ki Jhuggi,
                       Shastri Park, Delhi.


     
FIR No. 53/07
PS Seelampur
U/s 392/394/397/411/34 IPC & 27 Arms Act.


J U D G E M E N T :

­

1. Case of the prosecution as disclosed from the report under Section 173 Cr.P.C., in brief is to the effect that on 7.2.2007, ASI Iftkhar Ahmed, received D.D.No.11A. He alongwith Constable Irshad, reached ISBT opposite Hanuman Mandir, Shastri Park, Delhi. Constable Hans Raj met him there, who had apprehended the accused Kayam @ Kayum and Ashok Pal Singh with the help of the public. Complainant met ASI Iftkhar Ahmed and gave his statement, wherein he stated that on 5.2.2007, he was going to fetch meat from Kasapura. At about 11.30 p.m., when he reached ISBT Road, Red Light, Shastri Park, paddle of his rickshaw went out of order. He started repairing it. In the meantime, three boys came there. One of them was having a knife and 2 one was having a blade. They on the point of knife and blade, started snatching his articles. When he resisted, they hit him on his forehead, thigh and right hand with blade and knife. He tried to save himself and gave a paddle blow on the forehead of one of the offenders. Offenders robbed a sum of Rs.1800/­, injured him and left. While leaving, they threatened that in case he will lodge a report with the police, he will be done to death. Saleem went to his house being frightened and got himself treated privately.

2. On 7.2.2007, when complainant was going in his rickshaw to fetch meat from Kasapura, during day time at about 3 p.m., the same boys accosted him at Hanuman Mandir in front of Shastri Park, ISBT Road and wrongfully restrained him and started snatching his articles. One of the three offenders took out a sum of Rs.1500/­ from his pocket. He resisted, raised noise and grappled with the accused persons. Public gathered and gave beatings to the offenders. One police official also came from the police booth and he intervened and saved the offenders from the public. One of the accused even grappled with the police official and at this public again started beating him. One of the offenders who had taken out a sum of Rs.1500/­ from the pocket of Saleem succeeded in escaping from the spot by taking benefit of the situation. Remaining two offenders were over powered and their names were revealed as Kayam @ Kayum and Ashok Pal Singh.

3. ASI Iftkhar Ahmed recorded the statement of Saeelam Ex.PW­3/A and endorsed it vide memo Ex.PW­6/B and sent the same to PS through Constable Balesh Kumar for registration of the case. Constable Balesh Kumar 3 got the case registered and came back at the spot. I.O. got the medical examination of complainant conducted at GTB Hospital, prepared the site plan at the instance of the complainant, recorded the statements of the witnesses and arrested the accused persons. On interrogation, accused persons made disclosure statements which were reduced in writing. Personal search of the accused persons was conducted. Sums of Rs.100/­ and 200/­ were got recovered by accused Ashok Pal Singh and Kayam @ Kayum respectively in pursuance of their disclosure statements which were taken into possession. Case property was deposited in the police station. Medical examination of the accused persons was got done.

4. On 19.3.2007, accused Naushad Ali was apprehended at Gali No.13, Shastri Park, Delhi. He was joined in the investigation and he made a disclosure statement. A sum of Rs.225/­ was recovered at the instance of the accused from his house. This amount was also seized and deposited in the police station. Medical examination of accused Naushad was got conducted. Accused was kept in muffled face and arrangement for his TIP were made. Accused refused to participate in the TIP. After completion of necessary investigation, challan was got filed through SHO.

5. Case was committed to the court of Sessions after compliance of provisions under Section 207 Cr.P.C. concerning supply of copies.

6. After hearing argument on charge on 26.5.2007, my ld. Predecessor vide detailed order had framed charges under Section 392/394 read with Section 397 IPC against the accused persons, to which they pleaded not guilty and 4 claimed trial.

7. Prosecution in support of its case, has examined PW­1 Constable Irshad Kumar, PW­2 Balesh Kumar, PW­3 complainant Saeelam, PW­4 Constable Vinod Kumar, PW­5 Dr. Alok Kumar Tiwari and PW­6 ASI Iftkhar Ahmed.

8. PW­1 Constable Irshad Kumar has proved the copy of D.D.No.11 A. PW2 Constable Balesh Kumar has proved registration of the case having done by him.

9. PW­3 Saeelam, the material eye witness and complainant of the case, has testified about the manner in which the offence was committed.

10. PW­4 Constable Vinod Kumar has accompanied the I.O. on 19.3.2007 and is a witness concerning apprehension of the accused Naushad. This witness has proved the arrest memo of accused Naushad Ex.PW4/A, personal search memo as Ex.PW4/B, disclosure statement as Ex.PW4/C and seizure memo of currency notes to the tune of Rs.225/­ as Ex.PW4/D.

11. PW­5 Dr. Alok Kumar has proved the MLC of accused Kayam @ Kayum and complainant Saeelam as Ex.PW5/A and Ex.PW5/B, respectively.

12. PW­6 ASI Iftkhar Ahmed is the I.O. of the case who has testified about the manner in which he has conducted the investigation of the case. He has proved copy of D.D.No.11 A as Ex.PW6/A, his endorsement as Ex.PW6/B (rukka), carbon copy of FIR as Ex.PW6/C and site plan as Ex.PW6/D. He has proved the other documents also which have already been proved by the witnesses.

13. Statements of accused persons were recorded under Section 313 Cr.P.C. 5 in order to give an opportunity to the accused persons to explain the circumferences appearing in evidence against them. Accused persons denied the case of the prosecution in its entirety and submitted that they have been falsely implicated in this case.

14. Accused Kayam @ Kayum opted to lead defence evidence. He submitted that Constable Hans Raj went to his house and demanded hafta from him and when he objected, since his relatives were sitting with him at his house, Constable Hans Raj abused him in the presence of his relatives and slapped him. That in retaliation, he also slapped Constable Hans Raj. That Constable Hans Raj immediately made a PCR call and police officials came and assaulted him and in that process he received injuries.

15. Accused Naushad has taken the defence that he is drug addict. That his mother was fed up with him and produced him before police of PS Seelampur of her own and requested the police officials to falsely implicate him in some trivial offence in order to get rid of bad habit of drug addiction. That police officials took an advantage of situation and booked him in a false case.

16. Defence of accused Ashok Pal Singh is to the effect that he was waiting for the bus at the bus stand of Seelampur at about 10.30 a.m. That one police man came there and asked him to sit on a motorcycle. That police man was known to him since his posting at Dilshad Garden. That this police man took him to Police Station Seelampur and implicated him in this false case.

17. Accused persons have examined DW­1 Mamta and DW­2 Shekhwat Ali. DW­1 has been examined by accused Ashok Pal Singh. This witness has 6 testified that on 7.2.2007, at about 9.30 a.m., she alongwith Ashok had proceeded from her house for Gandhi Nagar. She had to go to Gandhi Nagar and Ashok had to go to Sadar Bazar. That at about 10 a.m., she and accused Ashok had alighted from TSR at Seelampur and when they were crossing the road, two police men came on a yellow colour motorcycle. They talked with Ashok and took him on motorcycle by one of the police man and other police man remained there.

18. DW­2 Shekhawat Ali has been examined by accused Kayam @ Kayum. He has testified that on 7.2.2007, at about 12 noon, he was present at his house. That accused Kayum came to his house and told him that his mother was unwell. That he accompanied him to street No.10, Main Road, Seelampur, Delhi, where Kayum was over powered by the police and was given beatings.

19. Arguments were heard at the bar. Ld. counsel Sh. M.P. Singh Rathor for accused Ashok has filed written arguments. Ld. Counsel Sh. Abdul Sattar has adopted the arguments of Sh. M.P. Singh Rathor. Oral arguments were also heard. Main points raised in the written arguments are as follows: (1) Ct. Hans Raj was dropped by the prosecution for the reason best known to it. (2) No recovery of any weapon is there, whereas weapons were allegedly used on 05.02.2007 and 07.02.2007. (3) Allegedly recovered notes from accused Ashok Pal Singh have not been produced in the court. (4) Case of the prosecution is not believeable in the absence of non­reporting of the incident to the police/PCR and non­medical examination on 05.02.2007 of complainant PW3. (5) Non­recording of statement of private doctor by the I.O, which makes the story of private medical examination non­ 7 believable, (6) the version of PW3 concerning going to purchase meat on 07.02.2007 despite injuries of 05.02.2007 does not seem probable. (7) Versions of complainant in complaint dt. 07.02.2007 and in his statement on oath are contradictory concerning possession of arms by the accused persons and the same makes the case of the prosecution doubtful. (8) Medical examination of complainant at 12:00 pm, whereas the incident took place at 3:00 pm. (9) Version of I.O and complainant concerning preparation of site plan, presence of blood etc. being irreconcilable (10) Version in DD No.11A and case of the prosecution subsequently being irreconcilable (11) non­examination of Ct. Sripal, who took the complainant Sailam for medical examination (12) medical examination of accused Kayyum at 6:30 pm and that of the complainant at 11:50 pm not being appealable to common sense (13) contradictory versions concerning paddle being out of order and chain being out of order. On the basis of written arguments Sh. M.P. Singh Rathor submitted that accused is entitled to acquittal.

20. Ld. Public Prosecutor on the other hand, has vehemently refuted the submissions of Ld. Counsels for the accused persons. He has argued that merely because there are some contradictions here and there, will not entitle the accused persons benefit of doubt. He has argued that such type of contradictions are bound to take place when the witnesses come to depose in the court.

21. I have carefully perused the records of the case and considered the submissions. In order to establish a case under section 392, prosecution has to prove that a robbery took place. Robbery is defined in section 390 IPC, which is nothing but an aggravated form of either theft or extortion. Theft becomes robbery, if in order to committing of the theft, or in committing the theft, or in carrying away or attempting to 8 carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause death of any person or causes hurt/wrongful restraint/fear of instant death/fear of instant hurt/fear of instant wrongful restraint etc.

22. Section 379 IPC defines theft. The main ingredients of theft are that one should intend to take dishonestly any movable property out of the possession of any person without that person's consent. Offender should also move the property in order to take it.

23. I am of the considered view that offence under section 392 IPC is made out in this case as in my considered view accused persons committed robbery, which is an aggravated form of theft. I am conscious of the fact that charge in this case was framed by taking the extortion as the base of the offence, whereas it should have been that of theft. I am of the considered view that this will not make any difference as section 392 IPC takes within its ambit, theft as well as extortion and minor change of facts alters the offence of theft into extortion and vice­versa. In Case of extortion movable property has to be given by the person extorted whereas in case of theft it is not so. Perusal of Ex.PW3/A has revealed that money was taken on both the occasions forcibly by the accused persons and the same was not given to the accused persons by the victim. Illustration (a) appended to section 390 makes my point move clear. Be that as it may, it makes no difference and I am saying so at the cost of repetition. Another reason to say so is that accused persons have not been prejudiced on account of this as cross­examination has been carried out not only from the angle of extortion and theft, but also from the angle of extremely aggravated form of robbery as envisaged under section 394 and 397 IPC. The charges under section 394 and 397 IPC being of graver nature will include the charge of lesser nature. They also include the ingredients of theft as well as robbery. I deem it 9 pertinent to mention that Ld. Advocates have not argued about this aspect at all and this aspect came to my notice of my own when I read the contents of the charge in juxta position with ingredients of the offence and as a matter of abundant precaution, have deemed it expedient to observe about this aspect.

24. I am adverting to the testimony of PW3 as it is his testimony, which is the bedrock of the case of the prosecution and has to be the deciding factor. This th witness has testified that on 5 day of English Calender Month of 2007, about 4 to 5 months back from the date of his deposition, he was going to Kasak Pura at about 11:00 pm by his rickshaw for purchasing meat. He was paddling the rickshaw. Chain of the rickshaw went out of order and it was put in order. In the meantime three persons reached him. One of them took out a blade and other took out a knife. They snatched a sum of Rs. 1800/­ from his possession forcibly. They wielded blade and dagger blows over his right arm, thigh and forehead. He grappled with them. Paddle of rickshaw was in his hand and he wielded a blow to one of the offenders with that paddle. Offenders ran away from there. While running away they criminally intimidated him by saying that in case he will divulge the facts to anyone, he will be put to death. He has identified all the three accused persons as the persons, who had robbed him and assaulted him on that day. He has named accused Ashok as the person, who had wielded blade blows on him and was given a paddle blow by him. He has also stated that accused Kayyum was having a dagger in his hand at that time and accused Naushad had over powered him on that day.

25. The above mentioned version of PW3 in first para of his examination in chief on 06.10.2007 goes to establish the identity of the accused persons as the authors of the crime. This also establishes that a sum of Rs. 1800/­ was snatched from PW3 forcibly. This also establishes that PW3 was wrongfully restrained and he was hurt. I 10 have no hesitation, therefore, in observing that ingredients of section 392 IPC are satisfied, if a bare perusal of the above mentioned first para is had.

th

26. PW3 has mentioned about the incident dt. 07.02.2007 to the effect that on 7 day of English Calender Month at about 3:00 pm, he was going to Kasak Pura to purchase meat by his rickshaw at about 3:00 pm. He reached near a temple at crossing of Shastri Park, where all the three accused persons met him. Accused persons snatched a sum of Rs. 1500/­ from him. Accused Kayyum caught hold of collar of PW3 and snatched a sum of Rs. 1500/­. PW3 grappled with them. Accused Kayyum and Ashok were over powered at the spot by the public persons while accused Naushad managed to escape. (Catching hold of collar amounts to wrongful restraint and brings the act of the accused within the ambit of section 392 IPC).

27. The above mentioned examination­in­chief on page 2 of the testimony dated 06.10.2007, of PW3 also again brings on record the ingredients of section 392 IPC as PW3 was wrongfully restrained and a sum of Rs. 1500/­ was snatched from him. He was also put under fear of instant hurt.

28. This witness at page 3 of his examination­in­chief has testified that the third accused was arrested and he refused to participate in TIP. This aspect brings on record the involvement of accused Naushad in the incident of 07.02.2007. Accused Naushad in his statement under section 313 Cr.PC has admitted that he had refused to participate in TIP. No doubt TIP proceedings have not been properly proved by the prosecution in this case but the same does not help the case of accused Naushad. First and foremost reason for the same is that accused Naushad has no where suggested to the complainant that he had been shown to PW at the police station before his TIP, which was a must in lieu of the stand taken by the accused Naushad while refusing to take part in TIP. The second reason which is of equal 11 importance is that testimony of PW3 regarding identification of accused by complainant has gone unchallenged and unconfornted. It was not suggested to this witness (PW3) that he was not in a position to identity the accused either on account of dark on 05.02.2007 or on account of his fleeing away on 07.02.2007. The third reason is that witness had sufficient opportunity to observe the acts of accused including his voice and other identification features on 05.02.2007 and 07.02.2007 as the witness had taken cudgels to grapple with the accused persons on both the occasions and had dared to face them boldly. This act of the complainant gave sufficient opportunity to the complainant to identify the accused persons properly. I deem it pertinent to mention that this argument was also not advanced and I am observing about this aspect as it is my duty to ensure that prosecution has brought on record the necessary material or not, to connect the accused with the commission of the offence, beyond reasonable doubt. It bears repetition to clarify that prosecution is to establish its case beyond reasonable doubt which means that it is the reasonable doubt of a reasonable man and not every doubt of any Tom, Dick or Harry.

29. This witness has testified about the receipt of injuries by him and has testified that he had received injuries on his forehead, right arm and thigh. These injuries are inconsonance with the medical record of this PW. It is well settled that if the version of complainant is supported by medical evidence, then the court can safely place reliance upon the testimony of complainant. Even otherwise this witness had no animosity with the accused persons and had no reasons with him to falsely implicate the accused persons.

30. The examination­in­chief of PW3 and other discussion thus has brought on record all the ingredients of the offence under section 392 IPC. Let the testimony be 12 tested in the touch stone of cross examination also.

31. For this purpose, I have gone through the entire cross examination of PW3 and have found that he has stood the test of cross examination. Sh. M.P. Singh Rathor, Ld. Advocate who was representing all the accused persons at that point of time, had extensively cross­examined this witness. He could not bring on record anything material due to which substratum of the testimony of this witness can be said to have been impaired. This witness has even withstood the insulting questions concerning he being a pickpocket and case being registered against him at PS Nand Nagri. No material has been brought on record by the accused persons by virtue of which this allegation of PW3 being a pickpocket can be said to be having an iota of substance. This witness has denied that Saleem was his maternal uncle and has given the name of his uncle as Shamim. Witness has denied the suggestion that his maternal uncle visits the PS ten times in a month and has testified that his uncle does not visit PS at all. He has also denied that his maternal uncle is a police informer. He has also denied that his father gets some persons lifted through police and thereafter money is extracted from them. No oral/documentary proof concerning the above mentioned suggestion has been brought over the record by the accused persons, which could have undermined the value of the testimony of PW3. It was bounden duty of accused persons to place before this court some proof, failure of which has to go against them.

32. When Ld. Counsel could not extract anything beneficial, on the above mentioned aspect, he changed his stance and started cross­examining about the avocation of the witness. This witness gave appropriate replies to all the questions concerning his avocation and naturality is reflected in his version as is evident from a bare reading of page two of cross­examination dt. 06.10.2007. This witness, 13 thereafter was cross examined about slips being issued by Iqbal Khan concerning meat, non­handing over of the slips, non­accompanying of the I.O to the shop of Iqbal Khan, bringing of meat in a cycle rickshaw etc. There is nothing favourable to the accused persons in his version in this regard and the replies are convincing and appealable to a reasonable prudent man. I.O and complainant are not supposed to follow the path as desired by the accused persons as holding so would amount to giving powers of acquittal to the accused persons. It cannot be gainsaid that only material ingredients are required to be proved by the prosecution.

33. Thereafter this witness was asked about availability of public and raising of alarm. This witness has answered the questions with confidence and has given the detailed particulars which would not have been possible, had this witness not been a witness of occurrence.

34. Rest of the cross­examination is about post incident events like recovery of currency notes and other investigation. There is no need to advert to the same. This witness has denied the defence put forth by Ld. Defence counsel except some th aspects viz a viz, testifications to the effect that on 7 of February, the accused persons were unarmed. I will be adverting to these aspects of the testimony while disposing of the final arguments of Ld. Defence counsels and at this juncture, I deem it expedient to observe that ingredients under section 392 IPC stand proved as in a case under section 392 requirement of weapon is not a sine qua non, which is the case in 397 IPC. Causing of injuries is also not required under section 392 IPC and it is section 394 IPC, which requires voluntarily causing hurt. Under section 392 IPC wrongful restraint or fear of wrongful restraint or instant hurt are sufficient. As PW3 was caught hold of on both the dates and money was snatched from him forcibly, there is no hitch in observing that there was wrongful restraint of PW3. Taking away 14 of money on both the days i.e. 05.02.2007 and 07.02.2007 has also been proved from the testimony of PW3 and thus there is no hitch on my part to observe that prosecution has established from the testimony of PW3, all ingredients required under section 392 IPC.

35. I deem it pertinent to mention that Ld. PP had very fairly and very rightly conceded that it is not appropriate to connect the accused persons with the offences under section 394 and 397 IPC for the reason that prosecution case is lacking in this regard, when it was brought to his notice by me that PW3 has given slightly different version about the accused persons giving the injuries to him, in his statement on oath and in his statement to the police. In the statement before the police (Ex.PW3/A), it was the case of the PW3 that on 05.02.2007, accused Kayyum had hit him with a knife and accused Ashok Pal Singh had hit him with a blade. It was also the case of PW3 in Ex.PW3/A to the effect that one of the accused persons had shown him the knife. In his statement on oath PW3 has come out with a version that accused Ashok Pal Singh had given blade blows on his person and accused Kayyum had given a dagger blow. He has also testified that on 07.02.2007 accused persons were unarmed. In view of these aspects coupled with the fact that prosecution failed to prove on record the injuries of PW3 beyond reasonable doubt, benefit of doubt is being given to the accused persons under section 394 IPC and 397 IPC. I deem it pertinent to observe that had the prosecution examined Dr. Malik, who treated PW3, then the matter would have been different. This being not so, I deem it appropriate to award benefit of doubt to the accused persons under section 394 and 397 IPC.

36. I have not even an iota of doubt in my mind that the arguments of accused persons & their advocates are not tenable. Merely because the prosecution has not been in a position to establish the graver offences, it cannot be said that accused 15 persons cannot be convicted under the lesser offence, ingredients of which have been proved by the prosecution. Argument that testimony of PW3 be discarded in toto as he has not supported the case of the prosecution on the accused persons being armed on 7.2.2007, is not tenable as duty of the court is to separate the grain from the chaff and maxim ' falsus in uno, falsus in omni bus', is not applicable in Indian in each and every case. This maxim has to be applied only when the grain and chaff are so mixed up that it is not possible to separate them. This is not the situation in the present case. Reliance in this regard is placed on Nisar Ali Vs. State of Uttar Pradesh AIR 1957 SC 366, Krishana Mochi Vs. state of Bihar 2002 Crl. LJ 264 (SC) Barkha Singh Vs. State of Punjab AIR 1975 SC 1962, Kesho Ram Vs. State of Assam AIR 1978 SC 1096 Poulin Haldar Vs State 1996 Crl. LJ 513 (Cal) DB, Sat Kukmar Vs. State of Haryana 1974 Crl. LJ 345, AIR 1974 SC 294 & Raghvan Pillai Vs. State of Kerala 1989 Crl. LJ 188 (NCC) (Ker).

37. Argument concerning dropping of PW Hans Raj by the prosecution is of no help to the accused persons as fate of the case under section 392 IPC has to be decided on the basis of the testimony of the person robbed and not on the basis of the testimony of a constable, who intervened at post incident stage and that too on one date. Moreover accused persons could have summoned this witness in their defence, which they have not done meaning thereby that argument has been taken only for the purpose of taking. I stand fortified in my view by the mandate of section 134 of the Evidence Act, which provides that no particular number of witness shall in any case be required for the proof of any fact.

38. Hon'ble Supreme Court in Harpar Singh Vs. Devender Singh reported in 1997 Crl. LJ 3561 (SC) has held that a public prosecutor may give up witness during trial to avert proliferation of evidence which could save much time of the court unless 16 examination of such witness would achieve some material views. The witness, if examined, would only have held in duplication of the same category of evidence as the other witnesses, the public prosecutor cannot be blamed for adopting the course of not examining him. It was further held that if the accused thinks that witness not examined by the prosecutor would help the defence, it is open to the accused to examine him as a defence witness. Thus the argument is not tenable.

39. Argument that there is no recovery of any weapon is of no help as accused persons have already got benefit of the same and for the reason they are not being convicted under section 394 and 397 IPC.

40. Arguments in para 3 at page 1 concerning non­production of Rs. 100/­ is of no help as that at the most would have been a corroborative factor. For this reason I have not deemed it expedient to give much attention on post incident aspects of testimony. I have no hitch in observing that testimony of PW3 in itself is more than sufficient and there is no need to advert to the testimonies of other witnesses to come to a conclusion that accused persons are involved in the commission of offence.

41. The argument that first incident of robbery was not reported and this makes the case of the prosecution doubtful is of no help as PW3 has given a valid explanation about the same by testifying that he was threatened to be killed. No hard and fast rule can be laid down as to which person will act in which fashion in case he is confronted with a situation like a present one. Different persons take/perceive things in different manners and react differently and therefore, there was nothing wrong on the part of non­reporting of the matter by the complainant on 05.02.2007.

42. The argument that witness should not have gone to a private doctor and I.O should have recorded the statement of a private doctor, is not tenable as firstly there 17 was nothing wrong in going to a private doctor on the part of PW3 as it is the complainant, who was to decide about going to a private doctor and non­registration of the case on account of fear and not the accused persons. Conduct of PW3 in this regard cannot be said to be unreasonable and no benefit can be given to the accused persons qua the same. Allowing such argument would amount to giving a licence of acquittal to criminals.

43. As far as, non­examination of doctor is concerned, no doubt I.O should have done so but the question arises as to why the accused persons should get benefit of the lapses having been committed by I.O. It is well settled that only those lapses of I.O are of help to the accused, which prejudice the defence of the accused and cause miscarriage of justice. In the present case had the accused persons been convicted under section 397 IPC then the question of injury would have been relevant. As in the facts and circumstances of the case only wrongful restraint was the required ingredient, examination or non examination of doctor would not have made any difference and hence there is no question of miscarriage of justice and prejudice of the accused.

44. Argument concerning version of PW not being appropriate on the ground that after receipt of stab injuries as per version of PW3, PW3 would not have been in a position to go to fetch meat on 07.02.2007 is of no help as it is not possible to lay down any fixed parameters in this regard. A person may go to his job even if he has sustained very serious injuries and may not go to his job even if he has not sustained any injuries. The answer to this should have been got elicited by Ld. Counsel for the accused persons from PW3 by putting a question to him in this regard. Nothing of the sort has been done and the argument can be said to be nothing, but an after thought.

18

45. Argument concerning the probability of the incident taking place not being there as put forth in para 5 is of no help as it is common knowledge that public persons do not come for help in the Metropolitan City of Delhi. The situation has gone worse to the extent that even the victims of accidents are not being attended to as was observed by Hon'ble S.C. in Parmanand Katara case. Moreover this argument of Ld. Counsel is self contradictory as according to the case of the prosecution accused persons were beaten by the public and had the public not been there, accused persons would have taken benefit of the situation and would have fled away as they had done so on 05.02.2007.

46. Argument concerning examination of complainant by the doctor at about 11:50 pm is of no help as the same is not germane to the ingredients required to be proved. Such minor discrepancies are bound to take place as perfect investigation is not possible at least in India and it is bounden duty of Indian Courts to take judicial notice of it. Similarly the argument concerning examination of accused Kayyum at 6:30 pm and that of complaint at 11:50 pm is untenable for the reason that the same is relating to the post incident stage.

47. Coming to arguments in para 6 concerning preparation of site plan. No doubt there are discrepancies in the version of PW3 and I.O when their versions are read in juxta position. No doubt I.O should have carried out the investigation in a better manner and it was expected of him to lift the blood samples and to have got the site plan properly prepared by taking the signatures of the complainant on the site plan. But, the question is as to whether the accused should get benefit of the same or not. I am of the considered view that the accused persons should not get the benefit in this regard, as testimony of PW3 has established the case of the prosecution beyond reasonable doubt and the proper investigation by the I.O would have at the most 19 reinforced the conclusions.

48. Section 134 of the Evidence Act provides that no particular number of witnesses shall be required for proving any fact. It is well settled that if testimony of a single witness is credible then it can be made the basis of conviction. For this reason I am doing so and placing my reliance on the sole testimony of PW3 for basing the conviction of the accused persons. I stand fortified in my view from a celebrated judgement of privy counsel reported in AIR 1946 PC 3, titled as Mohd. Sunal Esa Mamasn Rer Alalah Vs. King wherein it was laid down as under:­ " it was also submitted on behalf of the appellant that assuming the unsworned evidence was admissible the court could not act upon it unless it was corroborated. In England, where provision has been made for the reception of unsworn evidence from a child, it has also been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act, there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence, a court can act upon it corroboration unless required by the statute goes only to the weight and value of the evidence. It is sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn but, this is a rule of prudence and not of law".

The above mentioned mandate was approved by the Hon'ble Supreme Court in Vadiveha Thevar Vs. State of Madras reported in AIR 1957 SC 614 in which it was observed as under:­ " on a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established,

1. As a general rule, a court can may act on the testimony of a single witness though uncorroborated. One credible witness over weight the testimony of a number of 20 other witness of indifferent character.

2. Unless corroboration is insisted upon by statute, court should not insist on corroboration except in cases where the nature of the testimony or the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example, in the case of a child witnesses, or of a witness whose evidence is that of an accomplice or of a analogous character.

3. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in the matter like this and much depends upon the judicial discretion of the Judge before public whom the case comes.

It was further observed as under:­ " It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases, which are not in common occurrence, where determination of guilt depends entirely on circumstantial evidence. If, the legislation were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If, such testimony is found by the court to be entirely reliable, there is no illegality or impediment to the conviction of the accused persons on such proof. Even as the guilt of an accused may be proved by the testimony of a single witness, the innocence of the accused persons may be established on the testimony of single witness, even though a considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is 21 concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.

I have found the testimony of PW3 wholly reliable and there is no hitch on my part to base the conviction on the sole testimony of PW3.

Non preparation of site plan in this case was/is not fatal as it was not a case of accident under section 279/337/338/304 IPC. In an accident case preparation of site plan is required and it can be said that defence of the accused may get prejudiced or miscarriage of justice may take place in an accident case in some eventualities, but in the facts and circumstances of the present case, which is not an accident case, I have no hitch in my mind that non­preparation of appropriate site plan, non­collection of blood from the spot, non­showing of both the places of incident etc. are not at all material and do not affect the case of the prosecution at all.

49. Arguments concerning DD No.11A is of no help as perusal of DD No.11A by me has revealed that ASI Raj Singh of PCR had lodged the report. The argument would have been of help to the accused persons had they dared to summon this official in their defence. It having not been so done, the argument has to be rejected. Similarly arguments in para 8 concerning sending of complainant for medical examination in the custody of Ct. Sripal is of no help as the same is not germane to the ingredients of the offence under section 392 IPC. During the course of arguments, it was admitted case of both the sides that complainant was declined to be examined by the hospital authorities on the ground that he had not sustained any injury on the second date of incident i.e. on 07.02.2007. This reason in itself explains the delayed examination of the complainant and when Ld. Counsel Sh. M.P. Singh Rathor was confronted with this aspect, he had given up this argument.

50. Arguments of Ld. Defence counsel in para 11 concerning false story of paddle is 22 of no help as the contradiction concerning churies of paddle going out of order or chain of the rickshaw going out of order is not a material contradiction germane to the material ingredients of the offence under section 392 IPC. Moreover, this argument can be rejected as being after thought as this contradiction was not put to PW3 during his cross­examination, who could have answered about the same. It is trite law that explanation should be obtained from the witness in his cross examination qua contradictions, which are not germane to the material ingredient of an offence. Accordingly, contention is rejected.

51. Arguments concerning accused Ashok Pal Singh being not medically examined requires special mention. Sh. M.P. Singh Rathor, Adv. during the course of arguments had taken a categorical stand that accused Ashok Pal Singh was not medically examined. He had also moved an application under section 340 Cr.PC. He placed his reliance in this regard on the testimony of I.O PW6 Iftikar Ahmad, who had stated in his cross examination at page No.2 on his testimony to the effect that MLC was not on judicial file as well as on police file. Ld. PP without disclosing to the Ld. Defence counsel about the availability of MLC of Ashok on police file had submitted that MLC was there with the prosecution. Sh. M.P. Singh Rathor submitted that if prosecution can show him the MLC, he will be out of the court and the accused persons be convicted under section 392/394/397 IPC. Ld. PP at this stage showed the MLC of accused Ashok Pal Singh from the police file and submitted that MLC could not be shown to the court by the witnesses on account of inadvertance and proper examination of the police file due to hurry. When this was the position Ld. Counsel Sh. M.P. Singh Rathor submitted that he is withdrawing his application under section 340 Cr.PC, which he had moved for prosecution of the I.O. In view of the statement given by Sh. M.P. Singh Rathor on 13.08.2008, application under section 23 340 Cr.PC, dt. 16.04.2008 was dismissed as withdrawn. However, later on Sh. M.P. Singh Rathor realised that he had exaggerated himself by challenging Ld. PP in the presence of the accused persons, due to over confidence and on 14.8.2008 came with an application under section 208 Cr.PC. Ld. PP submitted that the application under section 208 Cr.PC was not maintainable before this court and this legal position constrained Sh. M.P. Singh Rathor to withdraw his application under section 208 Cr.PC. On 27.08.2008, he came with another application under section 340 Cr.PC. He also filed an affidavit of accused Ashok Pal Singh concerning he being not medically examined. Ld. PP submitted that prosecution is not relying upon the medical examination of accused Ashok Pal Singh and requested for expeditious disposal of the case. I am also of the considered view that there is no need to advert to this aspect of the matter as I am of the considered view that medical examination of accused Ashok Pal Singh is not being relied upon for basing the conviction of the accused under section 392 Cr.PC. The reason for doing so is that accused Ashok Pal Singh was apprehended from the spot and therefore, there is no hitch in establishing his identity in the commission of crime of the offence and for this reason the arguments of Sh. M.P. Singh Rathor in this regard are being rejected as being irrelevant. I have mentioned this aspect only for the purpose of keeping the records straight.

52. Application under section 340 Cr.PC, dt. 27.08.2008 is not maintainable for the simple reason that when Sh. M.P. Singh Rathor withdrew his application under section 340 Cr.PC, he had not sought the permission of this court to file a fresh application under section 340 Cr.PC. For this short reason, the application is not maintainable. I deem it pertinent to mention that there is substance in the argument of Ld. PP that medical examination of accused Ashok Pal Singh was in the police file 24 and could not be shown to the court at the time of cross­examination of PW6 due to hurry and cursory search of the police file. I have also gone through the police file with the assistance of Ld. PP and in the police file there is mention about medical examination of accused Ashok Pal Singh and Kayyum on 07.02.2007. This fact makes the application under section 340 Cr.PC (IInd application) non­maintainable on merits as well and is therefore dismissed.

53. I deem it pertinent to mention that I have not considered medical examination of Ashok for determination of issues of this case at all and I am not influenced at all by the assertion of Sh. M.P. Singh being out of court for the reason that PW3 has proved all the material ingredients independent of medical examination of accused Ashok Pal Singh and this aspect could have been only in the nature of landing assurance to the conclusions arrived at by me.

54. Argument concerning defence witnesses is of no help as it is not the police officials, who alone have deposed against the accused persons. Rather on the other hand, it is testimony of PW3, which has tilted the balance against the accused persons.

55. Arguments concerning injuries of the complainant being healed, as per the opinion of Doctor (PW5) is of no help as perusal of testimony of PW5 reveals that this witness had nowhere stated that injuries were not caused on 5.2.2007. First sentence of cross examination of this witness is relevant in this regard. It is extracted as under:­ " by old injury I mean that injury was two days, one month or two month". This witness in last line of his cross examination clarified the point further and I deem it expedient to reproduce the last sentence also which is as under:­ " if a patient approaches a doctor with two days old injuries, we never give 25 opinion as to what weapons of offence was used".

The above sentence read with entire cross examination and examination in chief go to show that argument of Ld. Defence counsel is not tenable and he should have cross examined this expert witness more in this regard. He should have asked a particular question from this witness to the effect that injuries sustained by the complainant were not sustained on 05.02.2007 and were sustained much earlier. In the absence of this clear elicitation, after thought arguments of Sh. M.P. Singh Rathor cannot be allowed to prevail. Another reason to disallow this argument is that conviction has been based by me not on the basis of the injury sustained, but on the basis of wrongful restraint of PW3 and for this reason also the argument is not tenable. Other arguments advanced orally or otherwise are not tenable in view of the discussion made above.

56. In view of the above going discussion, I hereby hold the accused persons guilty for an offence under section 392/34 IPC and convict them accordingly. Let they be heard on the point of sentence.

Announced in the Open Court (Sh. Dilbagh Singh) On this 2nd day of September, 2008. Additional Sessions Judge :

Karkardooma Courts, Delhi.
26
IN THE COURT OF SH. DILBAGH SINGH PUNIA: ADDITIONAL SESSIONS JUDGE :
KARKARDOOMA COURTS : DELHI :
Sessions Case No. 63/07
Date of Institution :­ 05.05.2007 Date on which reserved for order :­30.08.2008 Date of Delivery of Judgment :­ 02.09.2008 State Vs. 1. Kayam @ Kayyum S/o Ashik Ali, R/o Kali Mandir, Meenakshi Enclave, PS Loni, District Ghaziabad, U.P.
2. Ashok Pal Singh S/o Sh. Raj Pal, R/o F­1/127, Sunder Nagri, Delhi.
3. Naushad S/o Ansar Ali, R/o Jhuggi No.3, Gali No.13, Molla Kader Ki Jhuggi, Shastri Park, Delhi.
FIR No. 53/07

PS Seelampur U/s 392/394/397/411/34 IPC & 27 Arms Act.

ORDER ON THE POINT OF SENTENCE :­

1. I have heard Ld. Counsels Sh. Abdul Sattar, Shri M.P.Singh Rathore and the convicts on the point of sentence. Ld. PP has also been heard.

2. Convict Kayam @ Kayyum has stated that he is 30 years of age. That it is his first offence. That he is the sole bread earner of the family. That he is married and having a large family to support consisting of his parents, two brothers,two sisters, wife and two children. He also submits that the witness was not known to him. He, therefore, prays that a lenient view may be taken while awarding the sentence.

3. Convict Ashok Pal Singh has stated that he is 32 years of age. That it is his first offence. That he is the sole bread earner of the family. That he is married and having a large family to support consisting of his parents, five brothers, two sisters, 27 wife and children. He also submits that the witness was not known to him. He, therefore, prays that a lenient view may be taken while awarding the sentence.

4. Convict Naushad has stated that he is 25 years of age. That is his first offence.

That he is the sole bread earner of the family. That he is married and having a large family to support consisting of his parents, one sister, two brother, wife and two children. He also submits that the witness was not known to him. He, therefore, prays that a lenient view may be taken while awarding the sentence.

5. Before adverting to sentencing aspect, I deem it expedient to advert to legal situation first.

6. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. Hon'ble Supreme Court in 2008 (VII) SCC 17, has provided apposite guidelines in this regard. In this judgment reliance has been placed on Dhananjoy Chatterjee Alias Dhanna Vs. State of W.B., reported in 1994 (2) SCC 220. Reliance has also been placed on Shailesh Jasvantbhai and Another Vs. State of Gujarat and Others, reported in 2006 (2) SCC 359.

7. I am not burdening this order with the ratio decidendi of these cases and the same may be read as part of this para. Hon'ble Supreme Court has reiterated the principles of sentencing in 2008 VIII AD (S.C.) 581 titled as State of Madhya Pradesh Vs. Pappu @ Ajay and has referred State of Madhya Pradesh vs Ghanshyam Singh 2003 (8) SCC 13 and State of Barkare @ Dalap Singh 2005 (5) SCC 413. Reliance has also been placed on Dennis Councle MCGDautha v/s State of Callifornia, 402 US 183: 28 L.D.2d 711 and Sevaka Perumal etc. vs State of Tamil Nadu, AIR 1991 SC 1463.

28

8. I am not referring to the mandates of the above mentioned judgments as well for the sake of brevity and the same may be read as part of this para. Suffice to say that crux of all the judgments mentioned above is that sentencing court has to make a delicate balance between the conflicting interests of the society on the one hand and the convict on the other hand. No doubt, the balancing cannot be done in golden scales but an effort has to be made in this direction.

9. I have kept in my mind the above mentioned position of law and the facts of the case. The submissions made by the convicts are the mitigating circumstances in favour of the convicts. However, the fact that convicts robbed the complainant on two occasions and that too in a very cruel manner is an aggravating circumstance against the convicts. The fact that lawlessness in the society is increasing day by day is also an aggravating circumstance against the convicts as the interest of society demands deterrent punishment. Keeping in view the facts and circumstances of the case including the age of the convicts during trial, their antecedents and submissions made before me, the sentence of convicts is as follows.

10. Keeping in view the facts and circumstances discussed above, I deem it expedient to sentence the convict Kayam @ Kayyum to undergo RI for a period of four years and a fine of Rs. 4000/­ under section 392 IPC. In default of payment of fine, convict Kayam @ Kayyum shall undergo RI for a period of four months.

11. Convict Ashok Pal Singh shall undergo RI for a period of four years and a fine of Rs. 4000/­ under section 392 IPC. In default of payment of fine, convict Ashok Pal Singh shall undergo RI for a period of four months.

12. Convict Naushad shall undergo RI for a period of four years and a fine of Rs.4000/­ under section 392 IPC. In default of payment of fine, convict Nauishad shall undergo RI for a period of four months.

29

13. Benefit of set off under section 428 Cr.P.C be given to the convicts. A copy of judgement and order on sentence be supplied to the convicts free of cost.

14. Out of fine , if realised , from the convicts , then a sum of Rs.5000/­ shall be paid to the victim of this case after prescribed period of limitation coming to an end. 

Announced in the Open Court                                 (DILBAGH SINGH)
9 th day of September, 2008                                 Additional Sessions Judge :
                                                               Karkardooma Courts, Delhi.