Delhi District Court
State Of Nct Of Delhi vs Sudhanshu on 12 January, 2018
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IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI
Criminal Appeal No. 206/2017.
(Registration No. CA/23/2017)
(CNR No. DLSW010005942017)
In the matter of:
State of NCT of Delhi,
through Public Prosecutor. ... Appellant.
Versus
Sudhanshu,
S/o Sh. Krishan Mohan Tiwari,
R/o D1/25, Mansa Ram Park,
Uttam Nagar, New Delhi. ... Respondent.
Date of Institution : 20.01.2017.
Date of Arguments : 11.12.2017.
Date of Decision : 12.01.2018.
JUDGMENT
1. The present appeal is filed by the State against the judgment dated 26.10.2016 passed by Ld. MM03, South West District, Dwarka Courts, New Delhi, in case FIR No. 50/14 of PS Page No. 1 of 12. State Vs. Sudhanshu; CA No. 206/17.
2 Bindapur titled as "State Vs. Sudhanshu @ Pankaj @ Amit". Vide impugned judgment, the respondent/accused was acquitted for offences punishable u/s 341/394/411/34 IPC.
2. The case of the prosecution, as presented in the charge sheet, was as under. On the intervening night of 2930.01.2014, at about 4.00 am, complainant Manoj Kr. Sharma (PW1) reached at Matiyala road from Kashmere Gate bus stand and since he did not find any rickshaw, he started walking towards his house. Then four boys came out from a street and grappled him and further, they started beating him with fists, legs and knife and further, he was dragged on the road. Thereafter, they snatched his bags having clothes, company tools, wallet having cash Rs.1,000/, DL, PAN card, wrist watch and two mobile phones. During investigation, the accused was arrested and he was identified by the complainant during TIP proceedings. Further, recovery of tools was effected from his house.
3. On completion of trial, the accused was acquitted by the Trial Court vide impugned judgment on the ground that no medical document was produced by the prosecution side to show that the accused caused hurt to the complainant in the incident.
Page No. 2 of 12. State Vs. Sudhanshu; CA No. 206/17.
3 Further, the alternate charge u/s 411 IPC was also dismissed on the ground that PW5 Const. Arvind had deposed that the disclosure statement of the accused was recorded after recovery of tools and it suggests that the alleged recovered articles were planted on the accused by the police.
4. The appellant challenged the judgment of the Trial Court interalia on the following grounds:
4.1 The Trial Court has failed to appreciate that the identity of the accused and the act of robbery committed by him with other assailants have been established from the testimony of the complainant;
4.2 The Trial Court has erred in holding that in the absence of medical report, the ingredients of Section 394 IPC are not established; and 4.3 The Trial Court has failed to appreciate that the part of the robbed articles are recovered at the instance of the accused and the complainant had no motive to falsely implicate him.
5. I have heard the appellant through ld. Additional PP Sh.
Pramod Kumar and the respondent/accused through ld. counsel Sh. L.S. Gautam. Record is also gone through.
Page No. 3 of 12. State Vs. Sudhanshu; CA No. 206/17.
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6. It is submitted by ld. Additional PP that the testimony of the complainant, which discloses about the involvement of the accused in the incident of robbery, is completely reliable and there was no necessity to produce the medical certificate to show that the complainant was beaten during the incident of robbery. Further, it is mentioned that the Trial Court had ignored that apart from PW5 Const. Arvind, other recovery witnesses i.e. PW3 Const. Brijesh Kumar and PW6 SI (Retired) Raj Singh have also deposed about the recovery of robbed articles at the instance of the accused and on the basis of single contrary statement given by PW5 Const. Arvind during his cross examination that the recovery was made prior to recording of disclosure statement could not have been made basis to reject the prosecution case in its entirety. On the other hand, ld. counsel for respondent/accused argued that the Trial Court has rightly recorded the finding of acquittal on the basis of material loopholes in the prosecution case.
7. It is observed that the accused was acquitted by the Trial Court primarily on two grounds:
(i) The prosecution failed to bring any medical Page No. 4 of 12. State Vs. Sudhanshu; CA No. 206/17.
5 document to show that the complainant got injured in the incident of robbery; and
(ii) One of the police recovery witnesses (PW5) had mentioned that the disclosure statement of the accused was recorded after recovery of tools from his house.
8. As far as first issue related to causing hurt during robbery is concerned, this Court is of the view that there is no legal requirement that in order to establish the case u/s 394 IPC, the prosecution is bound to bring on record the medical certificate or MLC of the victim. Even otherwise, the Trial Court failed to appreciate that offence punishable u/s 394 IPC is only aggravated form of offence of robbery punishable u/s 392 IPC. If the Trial Court had formed the view that the prosecution was not able to establish the fact that the complainant was hurt in the incident of robbery, still it was required to examine the case u/s 392 IPC. Thus, the Trial Court committed error in rejecting the testimony of the complainant in absence of medical document.
9. Now, the deposition of complainant (PW1) has to be scrutinized. It is observed that the complainant has narrated the Page No. 5 of 12. State Vs. Sudhanshu; CA No. 206/17.
6 incident in detail during his testimony and had categorically mentioned that the accused was one of the assailants. Further, during cross examination, he had also mentioned that the accused had attacked him from the front side and he could identify him on account of street light near the spot. From the deposition of the complainant, it is clear that the incident had lasted for a while and thus, he had the opportunity to see the faces of the assailants. Further, it is noteworthy that immediately after his arrest on 04.02.2014, he was identified by the complainant in TIP proceedings Ex.PW6/G. In absence of any suggestion from the defence side that the accused was shown to the complainant prior to TIP proceedings, there remains no doubt about identification of the accused by the complainant as one of the robbers.
10. As far as injury aspect is concerned, the complainant has clearly testified that he was beaten by the accused and his associates and he was inflicted knife blow on his face, forehead, hand and back by them. It is pertinent to mention here that the fact of beating was mentioned in the first police report, which was registered vide DD No. 28B dated 30.01.2014 of PS Bindapur Ex.PW6/A. Since in the said DD, it was mentioned that the Page No. 6 of 12. State Vs. Sudhanshu; CA No. 206/17.
7 informant was beaten and his belongings were snatched by showing knife, therefore, at the most, it may be said that the deposition of the complainant that he was given knife blow on his face, forehead, hand and back is an improvement. Further, the complainant has explained in his cross examination that he got examined by a private doctor, whose clinic was situated in front of his house, but the police did not take him for medical examination.
11. As per Section 319 IPC, hurt is defined as under:
"319. Hurt. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
The offence of causing hurt can be said to be committed even if the victim was slapped and for this reason, MLC or any other medical certificate of the complainant was not required to be proved on record to establish the charge u/s 394 IPC. Thus, this Court is of the view that there is sufficient material on record to show that the complainant was beaten and caused hurt while being robbed.
12. Otherwise also, it was the duty of the investigating officer to collect the prescription slip or medical document related Page No. 7 of 12. State Vs. Sudhanshu; CA No. 206/17.
8 to treatment/first aid given to the complainant at the private clinic. However, the omission in doing so would not affect the prosecution case in any manner. The law is well settled that for any faulty investigation, the accused cannot be given benefit of doubt. Supreme Court of India in case titled "C. Muniappan & Others Vs. State of Tamil Nadu" and "D.K. Rajendran & Others Vs. State of Tamil Nadu", (2010) 9 SCC 567, has held as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
13. After going through the whole testimony of the complainant, this Court is of the view that he has withstood the Page No. 8 of 12. State Vs. Sudhanshu; CA No. 206/17.
9 test of cross examination and the defence side has not been able to impute any motive to him for false implication of the accused. His testimony inspires confidence and is found to be wholly reliable. The law is well settled that the testimony of sole eye witness may be the basis of the conviction, but in that case, the testimony has to be wholly reliable. On this aspect, the legal position has been made clear by Supreme Court of India in the case titled as "Govindaraju @ Govinda Vs. State By Sriramapuram PS & Another", 2012 (3) JCC 1714, in following words:
"11. ... ... ... It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of "Lallu Manjhi & Another Vs. State of Jharkhand", (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:
a. Wholly reliable;
b. Wholly unreliable; and
c. Neither wholly reliable nor wholly unreliable.
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise Page No. 9 of 12. State Vs. Sudhanshu; CA No. 206/17.
10 recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye witness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. ... ... ..."
Further, Supreme Court of India in the case titled as "Lallu Manjhi & Another Vs. State of Jharkhand", (2003) 2 SCC 401, has held as under:
"10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness."
In view of aforesaid factual and legal position, this Court is of the opinion that the sole testimony of the complainant is sufficient to establish the charge u/s 394 IPC against the accused.
Page No. 10 of 12. State Vs. Sudhanshu; CA No. 206/17.
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14. Though recovery of robbed articles is not required to be proved for establishing the offence of robbery, but it is found that the Trial Court has given undue weightage to the contrary statement of PW5 Const. Arvind given during cross examination that the disclosure statement of the accused was recorded after the recovery of the tools. It is observed that the prosecution has produced PW3, PW5 and PW6 as recovery witnesses. PW3 and PW5 have categorically stated that after recording supplementary disclosure statement Ex.PW3/A of the accused, they were led by him to the spot and then to his house, from where robbed tools were recovered. It is pertinent to mention here that even PW5 has mentioned in his examination in chief that supplementary disclosure statement was recorded prior to effecting recovery of tools. Moreover, it is found that the Trial Court failed to appreciate that prior to arrest of the accused in the present case, he was arrested in another case FIR No. 62/14 of PS Bindapur on 03.02.2014 and on the same day, he had disclosed about his involvement in the present case and the fact of hiding the tools in his house vide disclosure statement Ex.PW4/A. Thus, the aforesaid contrary statement given by PW5 in his cross examination looses its significance. The testimony of all the recovery witnesses are also found reliable and, therefore, Page No. 11 of 12. State Vs. Sudhanshu; CA No. 206/17.
12 the recovery of robbed tools at the instance of the accused within 6 days of the incident further points out towards his involvement in the incident of robbery.
15. For the aforesaid reasons, it is held that the findings of the Trial Court are not sustainable. As evidence on record is found sufficient to prove the case against the accused/respondent u/s 394/34 IPC beyond reasonable doubt, he is convicted for the said offence. Resultantly, the appeal is allowed.
16. Now the quantum of sentence would be decided on 16.01.2018.
Announced in the open Court on 12th day of January 2018.
(total 12 pages) (VIVEK KUMAR GULIA) ASJ03 & Special Judge (Companies Act) Dwarka Courts (SW), New Delhi.
Page No. 12 of 12. State Vs. Sudhanshu; CA No. 206/17.