Delhi District Court
State vs Salauddin @ Raja on 31 January, 2014
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions
JudgeII, South District, Saket Court, Delhi.
Session Case No. 18/2013
In the matter of :
State
Versus
Salauddin @ Raja,
S/o Allauddin,
R/o Jhuggi near Shamshan Ghat,
Ward No.2, Mehrauli, New Delhi.
FIR No. : 388/2012.
Police Station : Mehrauli.
Under section. : 392/397/34 IPC.
Date of assignment : 08.11.2012.
Reserved for order on : 27.01.2014.
Date of decision : 31.01.2014.
JUDGMENT
1. Complaint lodged by Sunder Singh with regard to the incident which happened with him on 18.09.2012 in the early morning at about 4.30am at MG Road, in which his mobile phone was robbed laid the foundation of the case in hand through FIR No.388/2012. It so happened that two out of three assailants, who had taken lift in the vehicle of the victim Sunder Singh, managed to flee from the State v. Salauddin, FIR No. 388/2012 Page 1 of 21 scene on the hue and cry raised by the victim but they managed to take away the mobile phone of the victim. However, to rob the complainant a countrymade pistol was also used. The case was thus registered under section 392/397/34 IPC. As the other coaccuseds could not be apprehended, therefore, chargesheet was filed against the one, who was apprehended at the spot i.e. accused Salauddin. After compliance of section 207 Cr.P.C., case was committed to the Sessions. Based upon the material gathered during the investigation, accused Salauddin was charged under section 392/397/34 IPC, to which he pleaded not guilty and claimed trial.
2. Of the nine witnesses sought to be examined by the prosecution in order to drive home its case, all the eight material witnesses were examined. The evidence so coming on record was put to accused Salauddin and his reactions and responses to the same were recorded in the shape of statement under section 313 Cr.P.C.
3. Arguments were raised by Sh. Dharuv Bhagat, Advocate, learned Amicus Curiae for the accused Salauddin and the learned Additional Public Prosecutor for State inasmuch as accused did not opt to lead any evidence in his defence.
State v. Salauddin, FIR No. 388/2012 Page 2 of 21
4. In order to treat theft as robbery, prosecution has to establish the following facts:
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
(e)voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or
(b) or (c) coexist with (d) and (e) or there is a nexus between any of State v. Salauddin, FIR No. 388/2012 Page 3 of 21 them and (d), (e) would amount to robbery; as has been elaborated in State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).
5. It is contended on behalf of the prosecution that the testimony of its star witness Sunder Singh alone is sufficient to bring the case home which has been strengthened and fortified by the statements of PCR officials i.e. ASI Rohtash examined as PW5 and Ct. Chander Prakash examined as PW7, who were instrumental in catching hold of the accused. The other witnesses have brought on record the procedural and incidental aspects of the case, therefore, according to the learned Prosecutor the accused being involved in robbing the victim Sunder Singh should be held guilty and punished accordingly.
6. Learned counsel for the accused, on the other hand, submitted that the case of the prosecution is full of contradictions to the extent that the credibility of the case of the prosecution gets clouded. To point out the same, he has drawn the attention of the court to the testimony of victim Sunder Singh who has deposed that he was working for his aaster for 24 hours which according to counsel for State v. Salauddin, FIR No. 388/2012 Page 4 of 21 the accused is not humanly possible as none can work for 24 hours. He had not fixed the fare before picking the so called assailants into his vehicle which is again not convincing inasmuch as he was merely making money while driving back and picking passengers on the way and normally fare is fixed in advance. He was not aware of the route(s) on which he was plying his vehicle which again is not conceivable for a professional driver, who claims that he was working for a call centre. Then there is no recovery either of the pistol from the accused nor he was the person who had snatched the mobile, therefore, it is submitted that there is no evidence to connect the accused with the offence and as such, the story put forth by the prosecution is hypothetical. In fact, it was a dispute with regard to the fare demanded by the complainant Sunder Singh and the consequent dispute which resulted into this false implication of the accused. With these contentions, it is sought that the accused may be acquitted as benefit of doubt certainly can be given to the accused.
7. Contradictions, if material, then it definitely corrode the credibility of prosecution's case but if the contradictions are incidental, minor and flimsy, coming into the testimony of the witnesses a a natural and obvious fall out on account of constraints State v. Salauddin, FIR No. 388/2012 Page 5 of 21 of memory style of narraions then the contradictions are to be ignored. In this context, reference can be made to the judgments in State of Rajasthan v. Kalki and Another (1981) 2 SCC 752, where it has been observed in the following words; "In the deposition of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected to a normal person. In a recent judgment in Rohtash Kumar v. State of Haryana, 2013 III AD (Cri) (SC) 369, it has been observed by the Hon'ble Supreme Court in following words 'It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more State v. Salauddin, FIR No. 388/2012 Page 6 of 21 particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not got to the heart of the matter, and shake the basis version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole'. Reference can be made to the following judgments in State of UP v. M K Anthony, AIR 1985 SC 48; State rep. By Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of MP, (2010) 8 SCC
191).
8. The importance and value to be attached to the statement of victim/injured can not be ignored or taken lightly rather a State v. Salauddin, FIR No. 388/2012 Page 7 of 21 comparatively strong emphasis and credibility to be attached. Reference in this context can be made to judgment in State of Uttar Pradesh v. Naresh and Ors., 2011 AD (SC) 20, where it has been held that "the evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant 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 lends 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 not like or want to let his actual assailant 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 the rejection of his evidence on the basis of major contradictions and discrepancies therein".
9. The nature of contradictions sought to be exploited by counsel for the accused against the prosecution are not serious enough and do not affect either the genesis of the case or its soul. In fact, these State v. Salauddin, FIR No. 388/2012 Page 8 of 21 contradictions can be brushed aside. The contention of counsel for the accused that there is no recovery of weapon of offence from the accused and that it was not he who had snatched the mobile has to be seen in the overall scenario. The testimony reflects that the accused and his two associates were acting as per premaditated plan and that is why they all took lift in the vehicle of the complainant and without saying anything, all of them did their job which includes putting a gun on the head of the victim by one persons who was sitting behind, the other i.e. accused holding the hands of the victim and the third one searching him. Therefore, it is evident that all of them were acting as per their common intention to rob the victim, therefore, all of them are responsible for the acts of each one of them.
10. However, with regard to section 397 IPC, the position is different as section 397 IPC speaks about the use of deadly weapon and if the use is not there and not by the person who is facing trial, then he cannot be held responsible for the acts of his coaccuseds. The contention of counsel for the accused in this context is correct as even otherwise there is no recovery of any weapon of offence which further puts a question mark on this aspect of the case. As a result when the accused himself had not used the weapon in any State v. Salauddin, FIR No. 388/2012 Page 9 of 21 manner, he cannot be held responsible for committing robbery with the use of deadly weapon.
11. It was further contended by counsel for the accused that despite Metro Station being nearby, no public witness was joined in the proceedings which again makes the case of the prosecution doubtful.
12. However, the public witness to the proceedings or otherwise are not mandatory. Again the incident in the instant matter took place in the morning time at around 4.30am and expecting public persons at that hour is a far fetched idea. The position would not alter notwithstanding a Metro Station being nearby inasmuch as the metro services are operational at around 6.00am and the staff of Metro must also be there at around 5.30am and not prior to that. In these circumstances, expecting a public person at 4.30am or 5.00am is not appropriate. Thus, nonjoining of public person does not affect the prosecution's case adversely. It may be true that police personnels and the victim are available at the spot till about 7.00am but then those public persons who could have been available at that time had not have witnessed anything, therefore, the same would have been a banal formality without any consequence. Above all, State v. Salauddin, FIR No. 388/2012 Page 10 of 21 the so called independent public witnesses are not mandatory. Reference in this context can be made to judgments in Govindaraju @ Govinda v. State by Sriramapuram P.S. & Anr., 2012 IIIAD (SC) 453 = AIR 2012 SC 1292 Supreme Court held : "This court in the case of Girja Prasad (supra) (AIR 2007 SC 3106) while particularly referring to the evidence of a police officer, said that is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police office without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some State v. Salauddin, FIR No. 388/2012 Page 11 of 21 independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Reference can also be made to Aher Raj Khima v. State of Saurashtra, AIR 1956 SC 217".
13. Learned counsel for the accused has pointed out certain more flaws in the case that none from the crime team was called at the spot, no photographs of the scene was taken, no finger prints were attempted to be collected from the vehicle in question vizaviz other two accuseds who according to the prosecution managed to flee from the scene. Although these aspects are not very important for the case and still if it is considered an important aspect of the investigation, then the noncompliance of the same would not render the whole case of the prosecution unbelievable. Especially in view of the testimony of the witnesses. Thus the flaw/deficiency in the State v. Salauddin, FIR No. 388/2012 Page 12 of 21 investigation is also not going to further the cause of the accused. Reference in this context can be made to judgments in regard to defective investigation, Court in Dayal Singh v. State of Uttaranchal 2012 VII AD (S.C.) 541 = (2012) 8 SCC 263 held that "while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under; (SCC pp. 28083, paras 2736):
Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., (1972) 3 SCC 613, this Court stated that "it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, 2004 IV AD (S.C.) 365 = (2004) 3 SCC 654, held: (SCC p. 657, para 5)".
In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective". State v. Salauddin, FIR No. 388/2012 Page 13 of 21
13. Reference can also be made to Paras Yadav v. State of Bihar, (1999) 2 SCC 126, State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, Ram Bali v. State of U.P. 2004 VI AD (S.C.) 49 = (2004) 10 SCC 598, Karnel Singh v. State of M.P., (1995) 5 SCC 518, Ram Bali.
15. Counsel for the accused with the aid of following judgments in Dharambir @ Dharma v. State, decided by the Hon'ble Delhi High Court on 13.10.2011 in Crl.A.119/2010, Prem Prakash @ Tyagi @ Prem Prakash Upadhyay And Ors. v. State of Delhi, 2013 IX AD (DELHI) 151 and Bunti v. State, 2013 VII AD (DELHI) 291, contended that the case of the prosecution in the light of the evidence coming on record becomes unbelievable as the police personnels have taken divergent and contradictory stand, for instance the IO says that the description of the accused person(s) was given by the complainant whereas Ct. Rohtash says that description of the accused persons was not given by the complainant. The permanent base of the PCR is also deposed in shaky manner, therefore, when there is no recovery either of robbed mobile phone or of the so called weapon of offence i.e. pistol then State v. Salauddin, FIR No. 388/2012 Page 14 of 21 solely on the basis of the testimony of the victim/complainant, the accused cannot be held guilty and deserves the benefit of doubt. The judgment relied upon by counsel for accused in Dharambir v. State (supra) the story of the prosecution was not believed and benefit of doubt was extended to the accused on account of the fact that in the initial statement which laid the foundation for recording of the FIR did not mention about the robbery of ATM card, Rs. 10,000/ and documents and even in the MLC, nothing was alleged with regard to the robbery. Whereas, the accused Dharambir, in that case, was connected for robbery.
16. There is no such situation and circumstance in the instant matter as the case of the prosecution and the victim is that of robbery from the very inception. Therefore, this judgment is not going to help the cause of the accused.
17. Similarly, judgment in Prem Prakash @ Tyagi (supra) is also not going to give an edge or benefit to the case of the accused inasmuch as the victims in that case did not identify the assailants whereas in the instant matter not only the victim but the PCR officials have identified the accused as the person who was caught State v. Salauddin, FIR No. 388/2012 Page 15 of 21 after being chased by them. So is the fate of Bunty v. State (supra) in which the benefit was given to the accused on account of not only there was no recovery of any incriminating articles but because of his clear antecedents also and by the unusual circumstance in which the accused was arrested by the officials of PCR as what was presented in the aforesaid case was that the accused persons remained present at the spot after committing the robbery with the help of knife. Whereas in the instant matter accused was chased and apprehended immediately after or to say that during the commission of offence by the police personnels, therefore, the facts of the instant case are entirely different and no inference in favour of the accused can be drawn on the strength of these judgments.
18. Thus what emerges on the record is that the victim was robbed by the accused alongwith his associates, who could not be arrested but then the accused was arrested almost at the spot leaving no scope for any doubt about his identity and involvement. Non recovery of weapon used to rob the mobile phone is a factor but then there is no reason as to why the testimony of victim should be disbelieved especially when it is not the case of the accused that he was on inimical terms or was having any kind of dispute or nurtured State v. Salauddin, FIR No. 388/2012 Page 16 of 21 any grudge against each other. Learned counsel for the accused has although contended that there was a dispute with regard to the fare to be paid by the accused to the complainant but then this itself is not such a reason which would prompt a person who is a driver by profession to falsely implicate somebody. Then, in these circumstances when the testimony of the victim alone is sufficient but has been supplemented and complimented by other witnesses then the same leaves no doubt about the involvement of the accused in view of these above observations. It was not that the accused had used the pistol against the victim, therefore, he cannot be held responsible under section 397 Cr.P.C. and accordingly stand acquitted of the charge under section 397 IPC.
19. The prosecution has been able to drive home its case under section 392 IPC inasmuch as the victim was restrained from moving which brings the act of theft into the domain of robbery as defined under section 390 IPC and punishable under section 392 IPC. Accordingly, accused Salauddin is held guilty for the offence punishable under section 392 IPC and convicted thereof.
Announced in the open Court (Vimal Kumar Yadav)
On 31.01.2014 Additional Sessions JudgeII,
South District, Saket Courts,
New Delhi.
State v. Salauddin, FIR No. 388/2012 Page 17 of 21
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions JudgeII, South District, Saket Court, Delhi.
Session Case No. 18/2013 In the matter of :
State Versus Salauddin @ Raja, S/o Allauddin, R/o Jhuggi near Shamshan Ghat, Ward No.2, Mehrauli, New Delhi.
FIR No. : 388/2012. Police Station : Mehrauli. Under section. : 392 IPC. Present : Sh. Zenul Abedeen, Ld. Additional Public Prosecutor for State. Convict with Sh. Dhruv Bhagat, Advocate. ORDER ON SENTENCE
1. It has been contended by Counsel for convict that he is a young men; family responsibilities are there upon him being the only bread earner and that no other case except one under section 307, IPC is pending against him, therefore the reformative theory of State v. Salauddin, FIR No. 388/2012 Page 18 of 21 the sentencing would be appropriate in these circumstances as sending him to Jail would further give him opportunity, option and circumstance to go astray. Therefore, considering the aforesaid facts, especially the age, convict should be given an opportunity to establish himself back into the mainstream of the society as the incarceration would only give an opportunity to further pick up non conformist behaviour in the company of hardened criminals.
2. Ld. Additional Public Prosecutor for State contended that the convict is a habitual offender as can be seen from the list of cases filed by the police, showing that he is involved at least in 15 cases of theft, snatching etc., therefore to send a message to the society and to the potential offenders, the deterrent theory of punishment is what is to be used in this case. With these contentions, the Ld. Additional Public Prosecutor for State advocated a stern punishment for him.
3. Sentencing is the most ignored aspect of criminal law.
There is no set parameters and therefore the sentences bear individual stamp of the sentencer. No uniformity is there and it varies from court to court. However, while considering an appropriate sentence for a convict, given in a set of facts and State v. Salauddin, FIR No. 388/2012 Page 19 of 21 circumstances, a lot of factors come into play such as the age, gender, educational background, socioeconomic status of the convict and the role of and impact on the society etc. The sentence needs to be adequate and in consonance with the offence committed, it should neither be harsh nor should be light. Striking such a delicate balance is a very crucial for a judge in the role of a sentencer. The convict is a young man and seems to have gone wayward due to outside influence. But the offence committed by him shows that he has scant regard for the social and legal norms and it also appears that he committed the offence out of his undue needs and uncontrolled material desires, which he was not able to fulfill otherwise or that he thought that he will be able to get away with easy money. He can't be believed to be so naive as not to understand the right and wrong, concept of which is engraved in every civilized person in the society. In either of the cases, the culpability does not get mitigated. In such circumstances, the offence committed only reflects that the convict is nonconformist. Such a nonconformist behaviour cannot be approved by any standards, therefore, he need to be punished adequately for what he has done.
4. In view of the above discussion and considering the State v. Salauddin, FIR No. 388/2012 Page 20 of 21 entire gamut and facts and circumstances, the convict Salauddin is sentenced to undergo rigorous imprisonment for a period of 40 months and to pay a sum of Rs.2,000/ as fine, in default of which he shall further undergo simple imprisonment of six months for the offence punishable under section 392, IPC. Convict shall be entitled to the benefit of set off under section 428 Cr.P.C. Copy of the judgment and order on sentence be given to the convicts free of costs. After compliance, file be consigned to record room.
Announced in the open Court (Vimal Kumar Yadav)
On 01.02.2014 Additional Sessions JudgeII,
South District, Saket Courts,
New Delhi.
State v. Salauddin, FIR No. 388/2012 Page 21 of 21