Delhi District Court
State vs . Pappu Singh on 4 April, 2022
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 253/12
U/s 363/34 IPC
PS: Swaroop Nagar
State vs. Pappu Singh
Date of Institution of case:- 03.05.2013
Date of Judgment reserved:- 04.04.2022
Date on which Judgment pronounced:-04.04.2022
JUDGMENT
Case Number : 5286987/16 Date of Commission : 05.12.2012 of offence Name of the : Israr Khan S/o Ali Sher complainant
Name and address of : Pappu Singh S/o Awdesh Singh and Gali No. 6, Kadi the accused Vihar, A-Block, Swaroop Nagar, Delhi. Offence complained : 363/34 IPC of Plea of accused : Not guilty Final Order : Convicted FIR No. 253/2012 State Vs. Pappu Page 1 of 19 BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 05.12.2012, between 06:30 AM to 04:15 PM, at Kadi Vihar, Government School, Delhi within the jurisdiction of PS Swaroop Nagar, accused Pappu Singh with co- accused Manish Kumar in furtherance of their common intention voluntarily kidnapped a minor girl named Heena, aged about 12 years, from the lawful guardianship of the complainant/her father Israr Khan and thereby, they committed an offence punishable u/s 363/34 IPC. Thereafter, upon investigation statements of witnesses were recorded. Subsequently, an FIR was registered against the accused.
2. It is noteworthy, that after the investigation, chargesheet was filed in the court against the accused for the offences U/s 363/34 IPC. The copies of charge sheet were supplied to accused in compliance of section 207 Code of criminal Procedure (hereinafter called as Cr.P.C.). Charge for the offences U/s 363/34 IPC was framed against the accused, vide order dated 22.10.2013, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined nine witnesses.
4. PW-1 is HC Virender Singh, No. 809/NW, SJPU, North-West, Delhi. He deposed, that on 05.12.2012, he was posted at PS Swaroop Nagar as HC and was working as duty officer from 08:00 am to 08:00 pm. On that day, at about 04:15 p.m, complainant Israr Khan came to the PS and made complaint, that his (complainant) daughter aged about 12 years was missing.
PW1 further deposed, that he recorded the statement of complainant, which is exhibited as Ex.PW1/A, bearing his name at point A and got registered the present FIR. He registered FIR, which is exhibited as Ex. PW1/B and made FIR No. 253/2012 State Vs. Pappu Page 2 of 19 endorsement on rukka. He also issued certificate u/s 65-B Evidence Act, which is exhibited as Ex.PW1/C, bearing his signature at point A. Thereafter, further investigation was handed over to SI Devender.
This witness was not cross-examined by Ld. Defence Counsel.
5. PW2 is Smt. Nafisa, W/o Israr Khan, R/o C Block, Gali no. 6, Kadi Vihar, Kadi Pur, Delhi. She deposed, that on 05.12.2012, her husband lodged a complaint/ FIR regarding the kidnapping of her daughter namely Heena. On the next day i.e. 06.12.2012, she came to know, that accused Pappu Singh and Manish Kumar (Juvenile) had kidnapped her daughter and Manish took her daughter to Bihar. Her husband made a call at 100 number.
She further deposed, that on 09.12.2012, police brought back her daughter from Bihar. On that day, in the presence of W/SI Rakhi and her, her daughter told them, that accused Pappu had kidnapped victim on the pretext of marriage and accused Pappu had sent her daughter to Bihar with co-accused Manish. The medical examination of her daughter was conducted in the BJRM Hospital in her presence. IO recorded her statement.
This witness was not cross examined by Ld. Defence Counsel.
6. PW-3 is Smt. Heena W/o Aasif, R/o Mange Ram Park, Rohini Sector-20, Delhi. She deposed, that on 05.12.2012, at about 07:00 am, she was going towards her school. At that time, she was studying in 7 th class and her age was about 12 years old. On that day, accused Pappu enticed her and send her to his village situated in District Motihari, Bihar alongwith his friend Manish. Accused Manish (juvenile) dropped her at the house of accused Pappu and accused Manish came back to Delhi.
FIR No. 253/2012 State Vs. Pappu Page 3 of 19She further stated, that she knew accused Pappu from last 2 months from the day of incident.
She further deposed, that police brought her to Delhi from the village of accused Pappu. Her medical examination was conducted in the BJRM Hospital, Jahangir Puri in the presence of her mother and one lady constable. IO recorded her statement, which is Mark 'X1'.
She further deposed, that on 10.12.2012, she was produced before Ld. MM and Ld. MM recorded her statement, which is exhibited Ex.PW3/A, bearing her signature at point A. Accused Pappu had promised to marry her. Accused Pappu and Manish had enticed her to go to accused Pappu's village as accused Pappu had promised to marry her. When, she reached at the house of Pappu, parents of the Pappu were also present there.
This witness was cross-examined by Ld. Defence Counsel.
7. PW4 is W/Ct. Sandeep, No. 2704/NW, PS Jahangir Puri. She deposed, that on 09.12.2012, she was posted at PS Swaroop Nagar as W/Ct. On that day, she alongwith IO SI Devender, victim girl Heena and mother of victim, namely, Nafisa went to the BJRM Hospital from police station. In the hospital, the victim girl Heena was medically examined by doctor in her presence. Nafisa had given the permission of internal examination of her daughter Heena to the doctor by stating on the MLC. After medical examination, they went to the Nirmal Chaya, where the custody of victim Heena was handed over to the official of Nirmal Chaya. IO recorded her statement.
This witness was not cross-examined by Ld. Defence Counsel.
8. PW-5 is W/Ct. Sadhna, No. 1287/NW, PS Mahendra Park. She deposed, that on 10.12.2012, she was posted at PS Swaroop Nagar as W/Constable. On that day, she joined the investigation of the present case and she alongwith IO SI Virender FIR No. 253/2012 State Vs. Pappu Page 4 of 19 went to Nirmal Chaya, where IO took the custody of victim Heena in her presence from the official of Nirmal Chaya. IO handed over the custody of victim Heena to her and then, they came to the Rohini Court.
Thereafter, Ld. Magistrate recorded the statement of victim Heena under section 164 Cr.P.C. Then, they took the victim to Nav Jyoti India Foundation, where counseling of victim was conducted and then, they handed over the custody of victim Heena to official of Nirmal Chaya. IO recorded her statement.
This witness was not cross-examined by Ld. Defence Counsel.
9. PW-6 is Ct. Vinod, No. 2485/NW, PS Keshav Puram. He deposed, that on 07.12.2012, he was posted at PS Swaroop Nagar as Constable. On that day, at about 03:30 pm, he alongwith SI Devender, W/SI Shashi Bala, Ct. Sanjay Pandey and accused Pappu left the PS for Bihar in search of victim Heena. On that day, at about 05:30 pm, they boarded Rajdhani Express for Bihar and next day, at about 05:30 am, they reached Patna Railway Station, Bihar. They hired a cab to reach the village of accused Pappu i.e. village Kalu Pakad, PS Fenara, District Motihari, Bihar and finally, at about 02:00 pm, they reached at the house of accused Pappu in the above mentioned village.
He further deposed, that they recovered the victim Heena from the house of accused and IO prepared recovered memo of victim girl Heena, which is exhibited as Ex.PW6/A, bearing his signature at point A. Thereafter, custody of victim girl was handed over to W/SI Shashi Bala and then, they came back to Delhi via train. IO made inquiry from the victim Heena in his presence and victim Heena stated, that accused (CCL) Manish had taken her to the village of accused Pappu at the instance of accused Pappu. IO recorded his statement.
He further deposed, that on 13.12.2012, he alongwith IO SI Devender went to Kadi Vihar, where the complainant Israr Khan joined the investigation of the FIR No. 253/2012 State Vs. Pappu Page 5 of 19 present case. IO arrested the accused Pappu, vide memo, which is exhibited as Ex.PW6/B, bearing his signature at point A, at the instance of complainant. IO also conducted the personal searched of accused, vide memo, which is exhibited as Ex.PW6/C, bearing his signature at point A. IO also recorded disclosure statement of accused, vide memo, which is exhibited as Ex.PW6/D, bearing his signature at point A. After that, they came back to PS and IO recorded his statement.
This witness was cross-examined by Ld. Defence Counsel.
10. PW-7 is Inspector Shashi Lata, No. D-3979, 2nd Battalion DAP. She deposed, that on 07.12.2012, she was posted at PS Swaroop Nagar as SI. The deposition of prosecution witness W/SI Shashi Lata is on the same lines as PW6 deposed in his examination in chief. Therefore, her testimony is not being discussed to avoid repetition.
This witness was crossÂexamined by Ld. Defence Counsel.
11. PW-8 is Israr Khan S/o Ali Sher Khan r/o N-7A-126/2, A Block, Sukhdev Nagar, Wazirpur Industrial Area, Ashok Vihar, Delhi. He deposed, that on 05.12.2012, at about 06:00 am, his daughter namely Heena had gone to the Govt. School situated at Kadipur, Delhi, but his daughter did not come back to his house. He and his family members waited till evening for the arrival of his daughter to home but she did not return. Thereafter, he made inquiry about the missing of his daughter in the neighbourhood. Someone in the locality told him, that the accused Pappu and co-accused Manish had taken his daughter from the school. Thereafter, he went to the police station, where his statement was recorded by police official. He told about physical description and about wearing dress of the victim to the IO.
He further deposed, that on 13.12.2012, IO arrested the accused, vide memo already exhibited as Ex.PW6/B, bearing his signature at point B. IO also FIR No. 253/2012 State Vs. Pappu Page 6 of 19 recorded disclosure statement of accused, vide memo, already exhibited as Ex.PW6/D, bearing his signature at point A. On inquiry, accused Pappu told, that he had sent his daughter Heena to his village with co-accused Manish. IO recorded his statement.
This witness was cross-examined by Ld. Defence Counsel.
12. PW-9 is SI Devender Kumar, No. D-4097, PS 6 th Battalion, DAP. He deposed, that on 05.12.2012, he was posted at PS Swaroop Nagar as SI. He received DD No. 19-A and copy of present FIR for further investigation.
He further deposed, that on 06.12.2012, he went to the house of the complainant at Gali No. 6, A Block, Kadi Vihar, Swaroop Nagar, Delhi, where, complainant namely Israr Khan was found present. Complainant Israr Khan produced the accused Pappu Singh and Israr Khan told him, that accused Pappu Singh kidnapped his girl namely Heena and sent her to his native place.
He further deposed, that he interrogated the accused Pappu Singh and accused told him, that he sent the girl to Village Khalupakad, PS Feenera, District Motihari, Bihar. According to his instructions, accused made a telephonic call at his native place and accused informed him, that girl Heena and his friend Manish reached at his native place. After that, on 07.12.2012, he alongwith accused Pappu Singh, W/SI Shashi Lata, Ct. Vinod, Ct. Sanjay Pandey went to the native place of the accused.
He further deposed, that in the house of accused Pappu Singh, the victim girl namely Heena and Manish were present. He apprehended the accused Manish and handed over the custody of girl Heena to W/SI Seema. He prepared recovery memo of victim girl, which is already exhibited as Ex.PW6/A, bearing his signature at point C. Thereafter, they came back to Delhi. He got conducted the medical FIR No. 253/2012 State Vs. Pappu Page 7 of 19 examination of victim girl Heena in the BJRM Hospital, in the presence of her mother. After medical examination, victim was sent to Nirmal Chhaya. He also produced the victim girl before Nav Jyoti India Foundation, Jahangir Puri, Delhi.
He further deposed, that on 10.12.2012, statement of victim girl was recorded u/s 164 Cr.P.C. by the Ld. Magistrate. During investigation, co-accused Manish was found juvenile, therefore, co-accused Manish was produced to Juvenile Justice Board.
He further deposed, that on 13.12.2012, he arrested accused Pappu Singh at the instance of complainant, vide memo, which is already exhibited as Ex.PW6/B, bearing his signature at point C. He also prepared personal search memo of accused Pappu Singh, which is already exhibited as Ex.PW6/C, bearing his signature at point C. He also recorded the disclosure statement of accused Pappu Singh, which is already exhibited as Ex.PW6/D, bearing his signature at point C. He recorded the statement of witnesses u/s 161 Cr.P.C.
After completion of investigation, he prepared charge-sheet and filed the same in the court for trial.
This witness was cross-examined by Ld. Defence Counsel.
13. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused denied to lead any evidence in his defence and the same was closed.
14. Thereafter, matter was listed for final argument.
FIR No. 253/2012 State Vs. Pappu Page 8 of 1915. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and have carefully perused the record.
16. It is argued by the Ld. APP for the state, that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated, that there are ocular and documentary evidence on record to bring home the guilt of the accused.
17. Per contra, it is argued by the Ld. Counsel for the accused, that the entire master mind behind the alleged offence was Manish, but he being a juvenile was produced before the Juvenile Justice Board and was tried accordingly. It is further argued by Ld. Counsel for defence, that the Juvenile Manish and the alleged victim Heena were fond of each other and they have falsely implicated accused Pappu Singh, in order to save the co-accused.
18. It is a cardinal principle of criminal jurisprudence, that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law, that in order to successfully bring home the guilt of the accused, prosecution is suppose to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
19. Now, in the present case, prosecution has examined nine witnesses and in order to appreciate the case of prosecution, it is important to access the testimony of witnesses examined by Prosecution. The most tectonic witness examined by the prosecution in the present case is Heena i.e. the victim herself. It is pertinent to state, that in law of criminal jurisprudence, utmost importance is given to the testimony of FIR No. 253/2012 State Vs. Pappu Page 9 of 19 the injured witness/ victim, as they are the once who have actually faced the brunt of the incident, that transpired and thus, their testimony is rated and placed at a much higher pedestrian than the testimony of any other witnesses. The only per-cursor with regard to the testimony of the injured witness/victim is, that it should be clear, comprehend-able and coherent and free from any kind of concoctions, embellishments and tutoring.
Thus, in the backdrop of these underlined principle, it is necessary to appreciate the testimony of the injured i.e. PW 3. She categorically stated in her deposition before the Court, that on 05.12.2012, i.e. on the day of the alleged incident, at about 07:00 AM, when she was going towards her school, at that time, accused Pappu enticed her and sent her to his village at Motihari, Bihar along with his friend Manish.
It is further pellucid to state, that accused Pappu was also known to PW Heena and that, she categorically named him during investigation as well as during her deposition before the Court.
20. It is further material to mention, that PW 3 further deposed, that she was brought to Delhi from the village of accused Pappu and, that accused Pappu had promised to marry her and on this pretext of marriage, he enticed her to go to her village alongwith his friend i.e. co-accused Manish. It is further material to state, that PW 3 further stated, that on reaching Pappu's house at his village, she met with his parents. Thus, from the examination in chief of PW 3 i.e. Heena, certain aspects come to light firstly, she has categorically named accused Pappu as the person who enticed her to accompany his friend Manish to go to Pappu's native village at Bihar. Consequently, she stated, that Pappu had enticed her on the pretext to get married to her. Thirdly, she stated, that she went to Pappu's house at Bihar, where, she met Pappu's parents.
FIR No. 253/2012 State Vs. Pappu Page 10 of 1921. Thus, from the entire examination in chief of PW 3, it can be observed, that her entire testimony is extremely coherent, comprehendable and free from any kind of blemishes. Also, it is relevant to state, that PW 3 i.e. Heena was subjected to the litmus test of cross-examination, whereby, she correctly admitted, that it was only she and Manish, who went from Burari Bus Stand to Railway Station and, that Manish at the insistence of Pappu had persuaded her to accompany him to Pappu's native village.
22. Now, what becomes relevant at this stage is to appreciate the testimony of PW 1 in light of the ingredients of the offence of kidnapping. Section 359 IPC defines kidnapping of two kinds:- One is kidnapping in India and second is kidnapping from lawful guardianship.
23. In the light of the facts and circumstances of the present case, Section 361 IPC becomes relevant i.e. kidnapping from lawful guardianship. Section 361 IPC reached as under, that whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Now, the essential ingredients pertaining to Section 361 IPC are as under:-
a. taking or enticing.
b. A minor i.e. if a male that is below 16 years of age and if a female, that
is below 18 years of age.
c. Out of the custody of lawful guardianship.
d. Without the consent of such guardian.
e. Thus, in the light of the above ingredients, it needs to be accessed
whether in light of the facts and circumstances of the present case, ingredients stands of the offence of kidnapping satisfied or not.
FIR No. 253/2012 State Vs. Pappu Page 11 of 1924. As far as, the first ingredient of taking or enticing goes, it is categorically stated by PW 3 in her examination in chief as well as in her cross-examination, that on the fateful date, accused Pappu had enticed her and sent her to his native village alongwith co-accused Manish.
She further stated, that she had known Pappu since last two months from the date of the incident and that, he promised to marry her and this fact further stands corroborated from the statements of the complainant recorded under Section 164 Cr.P.C, whereby, she categorically stated, that accused Pappu stays in her neighbourhood and accused's friend Manish took her to accused's house at Bihar. She further stated in her 164 Cr.P.C statement, that at his place, she found his parents and she stayed there for one day and thereafter, Police brought her back.
It is further pertinent to mention, that she categorically stated, that she liked the accused and that, the accused stated, that he would marry her. Thus, the first and primary ingredient regarding enticing or taking stands duly fulfilled, though the deposition of PW 3 herself.
25. As far as, the second ingredient pertaining to the age goes, it is admitted fact as per the record of the case, that the complainant was a minor at the time of the alleged incident.
26. Now, the only ingredient, that has to be fulfilled is the taking/enticing of the victim without the consent of guardians and it is categorically clear from the complaint made by the father of the victim as well as the statement of PW 2 i.e. Nafisa. PW 2 stated, that on 05.12.2012, her husband lodged a complaint/FIR regarding the kidnapping of their daughter who is victim in the present case. They further stated, that on the next day i.e. 06.12.2012, they came to know, that accused FIR No. 253/2012 State Vs. Pappu Page 12 of 19 Pappu alongwith Manish had kidnapped their daughter and Manish had taken her to Bihar. Thus, the very fact, that a complaint regarding kidnapping was lodged by the parents of the victim speaks for the fact, that she was taken/enticed out of the lawful guardianship of her parents without their consent.
27. Apart from the testimony of the victim and her mother, the other witnesses examined by the prosecution are merely formal witnesses, who were duly cross-examined by the Defence, but they could completely withstand the litmus test of cross-examination.
28. It is further evident from the testimony of PW 9, that on 07.12.2012, he alongwith accused Pappu, W/SI Shashi Lata, Constable Vinod, Constable Sanjay went to the native place of accused and there, in the house of accused, the victim girl namely Heena and Manish were present. Thus, the victim and the co-accused were taken into custody from the house of the accused himself. Therefore, from the above testimony of PW 9 also, the said fact stands established, that the accused Manish and the victim Heena were found at the house of the accused itself.
29. Further, PW 6 i.e. Constable Vinod also stated, that on 07.12.2012, at about 05:30 PM, he alongwith SI Devender, W/SI Shashi Lata, Constable Sanjay Pandey and the accused left for Bihar in search of the victim at 05:30 PM, they boarded Rajdhani Express for Bihar and next day at about 05:30 AM, they reached Patna Railway Station and from there, they hired a cab to reach to accused's village i.e. Kalu Pakad, PS Fenara, Motihari, Bihar. At about 02:00 PM, they reached at the house of accused Pappu and from there, they recovered victim Heena. Thereafter, IO prepared the recovery memo of victim Heena and from there, she alongwith co- accused Manish (CCL) were brought to Delhi.
Thus, the ingredients required for establishing the offence of kidnapping from lawful guardianship u/s 361 IPC, duly stands fulfilled as discussed above.
FIR No. 253/2012 State Vs. Pappu Page 13 of 1930. At this stage, Court deems it fit to state, that it is a settled law, that testimony of injured witness is considered to be very reliable and is accorded a special status in law. In the case of Bhajan Singh Vs. State of Haryana (2011) 7 SCC 421, where it was held as follows:-
" The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lands support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. (vide Jarnail Singh v. State of Punjab (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra (2010) 6 SCC 673; Abdul Sayed v. State of Madhya Pradesh (2010) 10 SCC 259)".
31. In the case of State of U.P. v. Naresh & Ors. (2011) 4 SCC 324, it was held that evidence of an injured witness cannot be doubted merely because there is a background of previous dispute enmity between the parties because this could well be the motive of giving assault by the accused on injured witnesses. The evidence of an injured witness has to be appreciated keeping in view that ordinarily a person, who has been assaulted by someone would not allow him to go Scot free and falsely implicate persons other than those who actually assaulted him. The evidence of an injured witness stand on different pedestal as compared to any other witness cited by the prosecution as eye witness, who claims to have seen the incident. Where an injured witness clearly names the person and the assault made on him by those persons which is broadly corroborated with what has been found in the medical FIR No. 253/2012 State Vs. Pappu Page 14 of 19 report, even though there may not be any mathematical precision with regard to the manner of assault, the evidence of an injured eye witness cannot be lightly thrown aside only on certain minor contradictions and omissions. It cannot be a case of some exaggeration or it could even be some discrepancy in recollecting the whole incident with exactitude and certainty but on certain minor discrepancy disbelieving altogether the testimony of injured eye witness, would be against settled principle of appreciation of evidence.
32. In the case of Bhajan Singh @ Harbhajan Singh v. State of Haryana ( 04.07.2011), it was held that evidence of an injured witness has to be relied upon, unless the injuries are found to be superfluous or self inflicted just to create evidence against the other party. It was further held that if, the common object stands proved, trivial discrepancies become immaterial and insignificant. The testimony of an injured witness comes with a built inguarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone (Kailash & Ors. v. State of Maharashtra (2011) 1 SCC 793; Durbal v. State of U.P. (2011) 2 SCC 676).
33. It is further settled proposition of law, that in appreciating the evidence, the approach of the court must be integrated and not truncated or isolated. In other words, the impact of the evidence in totality on the case of prosecution or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and animus of witnesses.
34. In Ugar Ahir v. State of Bihar AIR 1965 SC 272 a three judge bench held that:-
FIR No. 253/2012 State Vs. Pappu Page 15 of 19"7. the maxim falsus in uno, falsu in omnibus (false in one thing, false in everything), is neither sound rule of law nor a rule of practice. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment, it is ,therefore, the duty of the court to scrutinize the evidence carefully and , in terms of the felicitous methapor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
35. The Hon'ble Apex Court in the case of Chacko @ Aniyan Kunju and Others v. State of Kerala (2004) 12 SCC 269 has categorically dealt with the question as to whether on the basis of a solitary evidence, conviction can be maintained. It was held that:-
" conviction can be based on the testimony of a single witness, if he is reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth than on his evidence alone conviction can be maintained'. However, in the case in hand there is not only the untainted evidence of the star witness but the same stands duly corroborated with other ocular and documentary evidence.
36. It was held in Abdul Sayed v. Sate of M.P. reported in 2010 AIR SCW 5701, that, ' the Law on the point can be summerised to the effect that the testimony of injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want his actual assailants to go unpunished merely to falsely implicate the third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.' FIR No. 253/2012 State Vs. Pappu Page 16 of 19
37. In the case of State of U.P. v. Naresh & Ors. (2011) 4SCC 324, the principles with regard to appreciation of an injured witness was propounded as below:-
' 27. the evidence of an injured witness must be given due to weightage being a stamped witness, thus, his presence cannot be doubted. His statement is genuinely considered to be very reliable and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lands support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would like or want to led his actual assailants go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for rejection of his evidence.(vide Jarnail Singh v. State of Punjab (2009) 9SCC 719 and Balraj @ Trimbak v. State of Maharashtra, (2010), 6SCC 673;)
38. Now, the only aspect which needs to adjudge by the court is, if both the accused persons can be held liable for commission of offence punishable U/S 324 IPC read with conjointly with Section 34 IPC. Before delving into this aspect, it becomes necessary to state that Section 34 IPC is not a penal provision and it does not create a substantive offence. It is merely a rule of evidence and governs the principle of constructive liability and essence of that liability is the existence of common intention. It is a simultaneous consenses of the minds of the persons participating in criminal action to bring about a particular result. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In the case of Shree Kantiah Ramayya v. State of Bombay, the Apex court held that , ' he need not be present in the actual rule; he can, for instance, stand guard by a gate FIR No. 253/2012 State Vs. Pappu Page 17 of 19 outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape'. What is required is his actual participation of the offence in some way or other at the time when the crime is actually committed. For attracting Section 34 the aspect of common intention needs to be in existence. Common intention applies a pre arrange plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the pre-arranged plan. Common intention comes into being prior to the commission of the act in point of time, which need not be long gap. The phrase 'common intention' means a pre-oriented plan and acting in pursuance to the plan. In a celebrated case of Mehboob Shah v. King Emperor, the court held that Section 34 lays down a principle of joint liability in the doing of a criminal act. The Section does not say, ' The common intention of all', nor does it say, ' an intention common to all.' under the Section , the essence of that liability is to be found in existence of a common intention and animating from the accused leading to the doing of a criminal act in furtherance of such intention. Therefore, in the light of the law governing Section 34 IPC and applying the same to the facts and circumstances of the present case, it can be safely culled out that all the accused persons had common intention of inflicting the injury upon the injured/victim and it is not necessary that the establishment of the common intention has to be much prior to the occurrence of the incident but it can also occur at the spot and the same situation ensued in the present case as all the accused persons are not only related to each other and are also friends with each other.
39. Therefore, in the light of the above cumulative evidences and their detailed appreciation, this court is of the considered opinion, that the prosecution has proved its case beyond reasonable doubts. More so, in the scenario, where no evidence has been led by the accused in his defence.
FIR No. 253/2012 State Vs. Pappu Page 18 of 1940. Keeping in view the totality of circumstances and as a sequel of above detailed discussion of law and facts, this court is of the considered opinion, that cogent and material evidences have been adduced by the prosecution in order to prove its case and the credibility of the above said prosecution witnesses, could not be shaken or impeached on any material points. The prosecution has established the identity of the accused, beyond all reasonable doubts and has further proved, that the accused person is guilty of the offence charged for. So, the accused Pappu Singh is held guilty and convicted under Section 363/34 of IPC.
41. Put up for arguments on sentence pursuant to the compliance being done of the judgment of Karan Vs. State (NCT of Delhi CRL.A. 352/2020, Delhi High Court ).
Digitally signedRICHA by RICHA SHARMA SHARMA Date: 2022.04.04 16:28:34 +0530 Announced in the open court on 4 th day of April, 2022 (Richa Sharma) Metropolitan Magistrate-07 North District Court/Delhi FIR No. 253/2012 State Vs. Pappu Page 19 of 19