Delhi District Court
State vs . Pawan @ Diggi on 12 August, 2010
State Vs. Pawan @ Diggi
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02: SOUTH EAST
PATIALA HOUSE COURTS
NEW DELHI
IN RE: Sessions Case No. 212/09
ID No. 02403R0376352005
FIR No. 167/05
PS Badar Pur
U/s 392/397/302/34 IPC
State Vs.
Pawan @ Diggi
S/o Sh. Gaya Prasad
R/o 882, Jhuggi Gautampuri,
PH1, Badar Pur, New Delhi
_________________________________________________________
Date of institution : 21.07.05
(received by transfer on 22.05.09)
Date when the arguments
were heard : 17.07.2010
Date of judgment : 09.08.2010
SC No. 211/09 & SC No. 212/09 1/45
State Vs. Pawan @ Diggi
AND
IN RE: Sessions Case No. 211/09
ID No. 02403R0727422005
FIR No. 174/05
PS Badar Pur
U/s 186/353/307 IPC &25 Arms Act
State Vs. Pawan @ Diggi
S/o Sh. Gaya Prasad
R/o 882, Jhuggi Gautampuri,
PH1, Badar Pur, New Delhi
_________________________________________________________
Date of institution : 25.08.05
(received by transfer on 22.05.09)
Date when the arguments
were heard : 17.07.2010
Date of judgment : 09.08.2010
JUDGMENT
SC No. 211/09 & SC No. 212/09 2/45
State Vs. Pawan @ Diggi By this common judgment, I shall decide two cases viz. State Vs. Pawan @ Diggi, SC No. 212/09 (FIR No. 167/05, U/s 302/392/397 IPC read with Sec. 34 IPC, PS Badar Pur) and State Vs. Pawan @ Diggi, SC No. 211/09 (FIR No. 174/05, U/s 307/186/353 IPC and Sec. 25/27 of Arms Act). Both these cases are connected in the sense that the trial in both these cases has been held together. The FIR No. 174/05, U/s 25/27 of Arms Act and Sec. 186/353/307 IPC, PS Badar Pur (SC No. 211/09) was registered against the accused Pawan @ Diggi when in connection with FIR No. 167/05, PS Badar Pur, he was being apprehended by the police party and he threatened to fire at the police party with a country made revolver. The police party had a secret information regarding the accused involved in the commission of the offence in FIR No. 167/05, PS Badar Pur and pursuant thereto the police party along with complainant had gone to apprehend the accused. The accused Pawan @ Diggi, however, had resisted the apprehension and assaulted the police party by pointing a revolver at the police officials. This led to registration of the FIR no. 174/05, PS Badar Pur, U/s 307/186/353 IPC. This, therefore, is the nexus between both the FIRs and it is SC No. 211/09 & SC No. 212/09 3/45 State Vs. Pawan @ Diggi deemed appropriate to dispose of both the cases arising out of these FIRs together.
acts of the case in SC No. 212/09 (FIR No. 167/05, PS Badar Pur):
F
2. The facts of the case, in brief, are as follows: On 04.03.05 at 2.34 am, an information was received at PS Badar Pur regarding the incident of stabbing of a truck driver at Kalindi Kunj Road, Sarita Vihar. This information was reduced into writing vide DD no. 29 A (Ex. PW 5/A) and SI Hari Prakash (PW 14) was directed to take suitable action. SI Hari Prakash, who was on emergency night duty along with Ct. Rajbir had already received an information regarding the incident from SI Aditya Ranjan (PW 18), Incharge, PP Madan Pur Khadhar, who was acting as checking officer on night duty, and had also informed the PCR regarding the incident. SI Hari Prakash (PW 14) when reached the spot along with Ct. Rajbir (PW 12), the PCR van was already present. The injured and the helper of the truck was sitting in the PCR and Ct. Rajbir accompanied them to AIIMS Hospital. When SI Hari Prakash received the DD no. 29 A Ex. PW 5/A, he also reached AIIMS Hospital and obtained the MLC Ex. PW 2/A of the injured Sanjay. Since, the injured was unfit for SC No. 211/09 & SC No. 212/09 4/45 State Vs. Pawan @ Diggi statement, he recorded the statement of Naresh, complainant (who was helper / cleaner of the truck).
3. In his statement Ex. PW 14/A (also exhibited as Ex. PW 15/A at the time of examination of the complainant Naresh in the court as PW 15), the complainant stated that he was working as cleaner on truck number HR38G4745 on which Sanjay deceased was the driver. Three days before the incident, they had started from Nagpur for Delhi. On the night of 3/4.03.05, at around 2.00 am, they had crossed the Badar Pur border after paying the toll tax when a small maruti car stopped in front of their truck and 3/4 boys got down from the said car and boarded the truck. They started beating the driver. When the truck reached Sarita Vihar flyover, those persons snatched the black colour raxin bag from the driver which was containing 7 to 8 thousands rupees and some other documents and the driver was stabbed many times on his legs and the back. The police van came to the spot and he along with the driver Sanjay, who had become unconscious, was taken to the AIIMS Hospital and before that the accused had ran away from the spot.
SC No. 211/09 & SC No. 212/09 5/45
State Vs. Pawan @ Diggi
4. This statement became the basis of the FIR (Ex. PW 13/A). After the registration of the case for the offence under Sec. 392/397/34 IPC, the investigation was assigned to SI Tika Ram (PW 21) who reached the spot and prepared the site plan Ex. PW 21/A. He also visited the spot where the truck was intercepted by the accused persons and he prepared the site plan Ex. PW 21/B. Thereafter, he again reached the place of occurrence and inspected the truck and seized one steel glass Ex. P1, seat cover on the back side of the driver seat Ex. P 2 and the seat cover of the conductor seat Ex. P3 vide seizure memo Ex. PW 9/A. All these articles were blood stained. He called the crime team at the spot and HC Giriraj (PW 16) took nine photographs of the scene of crime vide Ex. P 10 to P 18.
5. The injured Sanjay had expired, therefore, SI Tika Ram (PW
21) moved the application for the postmortem of the deceased vide his application Ex. PW 21/C. After the postmortem was conducted by PW 1 Dr. Raghuvendra vide Ex. PW 1/A, the Doctor on duty handed over the viscera box and the blood sample in gauze along with sample seal to Ct. Kamal Raj (PW 6) who handed over the same to the SC No. 211/09 & SC No. 212/09 6/45 State Vs. Pawan @ Diggi Investigation Officer SI Tika Ram who seized the same vide Ex. PW 17/A. The dead body of the deceased was identified by his brother PW 3 Pradeep and PW 4 Prithvi Chand and the dead body was handed over to them. Later on investigation was handed over to Inspector R. S. Dahiya, SHO, PS Badar Pur.
6. Now, the crucial stage of investigation arrived when PW 19 SI Suresh Sharma, posted at PS Badar Pur received the information on 05.03.2005 at about 5.00 pm, that the person involved in the incident on the night of 3/4.03.2005 would be coming near railway line NTPC and would be going towards Gautam Puri. When this information was given to the Investigation Officer of this case Inspector R. S. Dahiya (PW 24), he instructed SI Suresh Sharma to conduct the raid and also to join complainant Naresh Kumar for the identification of accused. When the police party had reached near the police booth, Muslim Camp, Mohan Cooperative at about 6.00 pm, two boys were found coming near the railway line towards Mohan Cooperative. The complainant (PW 15) identified the accused Pawan @ Diggi, who was wearing a pink colour shirt at that time as one of the accused who was SC No. 211/09 & SC No. 212/09 7/45 State Vs. Pawan @ Diggi having a pistol and had pointed the same on the temple of deceased Sanjay. When the accused was apprehended by SI Suresh Sharma with the help of the police party and on the identification of the complainant, a the country made revolver was recovered from his possession.
7. After his arrest and pursuant to his disclosure statement, the black colour bag of the deceased Sanjay, containing the documents, was recovered at the instance of the accused Pawan @ Diggi from the bushes on the side of the road proceeding from Kalindi Kunj to Madan Pur Khadhar. This bag was of the make Samsonite and the truck number HR38G4745 was written on it with the paint. The bag Ex. PW 10/E was containing various receipts pertaining to the truck number HR38G4745 Ex. PW 10/F 1 to F 11. The pointing out memo of the place of recovery and the seizure memo of the black bag was prepared by the Investigation Officer vide Ex. PW 10/D.
8. The articles seized in this case were deposited with the MHC (M) and were sent to FSL on 31.03.2005 through Ct. Sanjeev Kumar SC No. 211/09 & SC No. 212/09 8/45 State Vs. Pawan @ Diggi (PW 7). After the investigation was completed, charge sheet was filed in the court.
The accused in this case was charged for the offences under Sec. 392 IPC read with Sec. 34 IPC, 397 IPC read with Sec. 392 IPC and Sec. 302 IPC read with Sec. 34 IPC. The accused had pleaded not guilty and claimed the trial.
acts of the case in SC No. 211/09 (FIR No. 174/05, PS Badar Pur):
F
9. On 05.03.05 at 5.00 pm , SI Suresh Sharma, PS Badar Pur had received a secret information regarding the person, who had robbed the truck driver on night of 3/4.03.2005. When SI Suresh Sharma along with the police party on the instruction of Inspector R. S. Dahiya, IO in FIR No. 167/05, PS Badar Pur, had reached near police booth, Muslim Camp, Mohan Cooperative, where the accused Pawan @ Diggi was pointed out by the complainant Naresh and when Pawan @ Diggi was asked to stop, he took out a country made revolver and pointed towards the police party and said "Ruk jao, nahi SC No. 211/09 & SC No. 212/09 9/45 State Vs. Pawan @ Diggi to goli mar dunga" (stop otherwise, I will shoot). He, however, was overpowered as Ct. Daya Ram hit him with the danda on his hand as a result the country made revolver fell down from the hand of Pawan @ Diggi and he was apprehended. Since, he had assaulted at the police party, causing obstruction in the discharge of public duty, SI Suresh Sharma sent the rukka for registration of the FIR under Sec. 186/353/307 IPC and Sec. 25/27 of Arms Act. The case was accordingly registered and the investigation was done. The site plan was prepared by ASI Tej Ram who was assigned the investigation. The country made revolver was seized after making a rough sketch of the same. The disclosure statement of the accused was recorded which was handed over to Investigation Officer of the case in FIR No. 167/05, PS Badar Pur (it may be noted that the said disclosure statement recorded by ASI Tej Ram is attached in the case file of SC No. 212/09, FIR no. 167/05).
10. The Sanction under Sec. 39 of Arms Act was obtained by the IO. The complaint under Sec. 195 Cr.PC was also filed in the court and after completing the investigation, charge sheet was filed in SC No. 211/09 & SC No. 212/09 10/45 State Vs. Pawan @ Diggi FIR No. 174/05, PS Badar Pur.
11. The charge sheet was filed for the offences under Sec. 307/186/353 IPC and Sec. 25/27 of Arms Act. The Ld. Predecessor of this court on 14.10.05 passed the order on charge and it was held that Sec. 307 IPC was not made out and the case was sent to the court of Ld. ACMM, New Delhi. The Ld. Magistrate framed the charge for the offences under Sec. 186/353 IPC and Sec. 25 of the Arms Act. The accused had pleaded not guilty and claimed the trial. However, Ld. Magistrate committed the case for trial under Sec. 323 CrPC for trial along with FIR No. 167/05, PS Badar Pur.
12. Before proceedings further, it would be appropriate to consider the evidence which has come on record in both the cases. FIR No. 167/05, SC No. 212/09, PS Badarpur
13. The prosecution had examined 23 witnesses in the following sequence:
13.1 PW 1 Dr. Ragvendra conducted postmortem and proved the SC No. 211/09 & SC No. 212/09 11/45 State Vs. Pawan @ Diggi PM report Ex. PW 1/A. 13.2 PW 2 is Dr. Deepak, who conducted the medical examination and gave the MLC of the deceased Sanjay Ex. PW 2/A. 13.3 PW 3 Pradeep and PW 4 Prithvi Chand had identified the dead body.
13.4 PW 5 ASI Satpal, who had registered the DD no. 29 A Ex.
PW 5/A on receipt of information regarding the incident. 13.5 PW 6 Ct. Kamal Raj had joined the investigation with SI Tika Ram.
13.6 PW 7 Ct. Sanjeev Kumar had taken the pullanda to CFSL Rohini.
13.7 PW 8 Ct. Abdul Rashid was the motorcycle rider who had SC No. 211/09 & SC No. 212/09 12/45 State Vs. Pawan @ Diggi delivered the copy of the FIR to the concerned DCP as well Ilaka Magistrate.
13.8 PW 9 Ram Singh who was also in the investigation with SI Tika Ram 13.9 PW 10 is Ct. Jawahar Singh, who was associated with the IO and witnessed to the recovery of the bag Ex. PW 10/E and on the pointing out memo Ex. PW 10/D. 13.10 PW 11 is Inspector Davender who had prepared the scaled site plan Ex. PW 11/A. 13.11 PW 12 is Ct. Rajbir, who was along with SI Hari Prakash and had taken the rukka to the PS prepared by SI Hari Prakash. 13.12 PW 13 is HC Uday Singh, Duty officer, who registered the FIR Ex. PW 13/A. SC No. 211/09 & SC No. 212/09 13/45 State Vs. Pawan @ Diggi 13.13 PW 14 is SI Hari Prakash, who was assigned the DD No. 29 A and who had recorded the statement of complainant Naresh on the basis of which sent the rukka Ex. PW 14/B which led to registration of FIR.
13.14 PW 15 is Naresh (complainant), who has proved his complaint Ex. PW 15/A (also exhibited as PW 14/A). 13.15 PW 16 is HC Giriraj. He was the photographer who took photographs.
13.16 PW 17 is Ct. Daya Ram, who was with the IO in this case. 13.17 PW 18 is SI Aditya Ranjan, Incharge Police Post, Madan Pur Khadhar, who had conveyed about the incident to SI Hari Prakash (PW 14) who was on emergency night duty.
13.18 PW 19 is SI Suresh Sharma, who had apprehended the accused on the identification of the complainant. SC No. 211/09 & SC No. 212/09 14/45
State Vs. Pawan @ Diggi 13.19 PW 20 is ASI Tej Ram (he is the IO in connected FIR No. 174/05, in which accused was arrested).
13.20 PW 21 is SI Tika Ram, who had prepared the site plan of the place where the truck was intercepted by the car vide Ex. PW 21/B and the site plan of the place where the truck was found standing, vide Ex. PW 21/A. He had also conducted the inquest proceedings vide Ex. PW 21/D. 13.21 PW 22 is Rajesh Kapoor. He is a material witness of the prosecution in the sense that the truck bearing number HR38G4745 was owned by his mother Smt. Kamla Kapoor. He had deposed that in the year 2005, Sanjay Kumar used to work as a driver on his truck and Naresh was working as a cleaner. He deposed that on 04.03.2005, both of them were on duty on the said truck which was coming from Nagpur to Delhi.
13.22 PW 23 is HC Laxman Singh (he was the duty officer who registered the connected FIR no. 174/05).
SC No. 211/09 & SC No. 212/09 15/45
State Vs. Pawan @ Diggi 13.23 PW 24 is Inspector R. S. Dahiya, the Investigation Officer of this case.
FIR No. 174/05, SC No. 211/09, PS Badarpur
14. In this case, prosecution examined 11 witnesses in all in the following sequence:
14.1 PW 1 Dr. Raghuvendra, PW 2 Dr Deepak, PW 3 Pardeep.
These witnesses were examined in the FIR No. 167/05 as well. After the present case was committed for trial along with FIR No. 167/05, my Ld. Predecessor had passed the order on 15.02.06 to keep the photocopies of the evidence in FIR No. 167/05 in the case file of FIR No. 174/05. These three witnesses have not much relevance in the present FIR no. 174/05.
14.2 PW 4 is HC Laxman, who registered the FIR Ex. PW 4/A on the rukka sent by SI Suresh Sharma.
14.3 PW 5 is Ct. Subhash Kaushik. He had taken the sealed pullanda (containing the country made revolver recovered from the SC No. 211/09 & SC No. 212/09 16/45 State Vs. Pawan @ Diggi accused) from the malkhana and deposited the same with the FSL. 14.4 PW 6 is Ct. Daya Ram, who was along with SI Suresh Sharma and other police officials and formed the raiding party which had apprehended the accused.
14.5 PW 7 is SI Suresh Sharma, who had received the information regarding the accused and had formed the raiding party on the direction of the SHO to apprehend the accused. 14.6 PW 8 is Naresh, the public witness in this case (he is the complainant and eye witness in FIR No. 167/05). 14.7 PW 9 is ASI Tej Ram, IO of this case.
14.8 PW 10 is Inspector Atul Sood. He has proved Sanction under Sec. 39 of Arms Act which was given by Anil Shukla, Addl. DCP, South District.
SC No. 211/09 & SC No. 212/09 17/45
State Vs. Pawan @ Diggi 14.9 PW 11 is Sh. Sanjay Tyagi, Addl. DCP, who has proved the complaint under Sec. 195 CrPC vide Ex. PW 11/A.
15. The documents which were proved on record by the prosecution are the rukka Ex. PW 7/B, FIR Ex. PW 4/A, rough sketch of the revolver Ex. PW 6/1, the seizure memo of the revolver Ex. PW 6/2, the arrest memo Ex. PW 6/3 and personal search memo Ex. PW 6/4. The prosecution has also proved DD no. 21 A dated 05.03.2005 regarding the secret information about the accused involved in the incident on the night of 3/4 032005 (FIR No. 167/05 and has been proved as Ex. PW 7/A), the complaint under Sec. 195 CrPC Ex. PW 9/A, Sanction under Sec 39 Arms Act 9/C and the FSL report is Ex. PW 9/B. Statement of accused
16. The incriminating evidence in the statement of the witnesses was stated to the accused in both the cases separately. The accused has taken only one defence in both the cases and the said defence is of false implication. He had stated that he was not apprehended at the place as shown in the prosecution case. Rather he examined one SC No. 211/09 & SC No. 212/09 18/45 State Vs. Pawan @ Diggi defence witness DW 1 Smt. Saroj in FIR no. 174/05 to prove that he was not apprehended from near railway line NTPC. DW 1 had deposed that on 05.03.05, she along with the accused Pawan @ Diggi had gone to Charela Village, NOIDA and when they were coming back and got down from the bus at Ali Village at about 3.00/3.30 pm, the police official apprehended him. This witness is the motherinlaw of the accused Pawan.
17. In the FIR No. 167/05, the accused has also submitted his written statement under Sec. 313 CrPC in which he had taken the plea that he was apprehended from the bus stand of Ali Gaon and was taken to Badar Pur. He was produced before the SHO, where he was shown to one boy. Thereafter, he was handcuffed and the Ct. Daya Ram hit him with the danda on his hand causing injury on the same. He further stated that his signatures were taken on some blank papers. It is further stated in the statement that he had abused the police officials earlier and, therefore, he was involved in the case of Arms Act and 5/6 false cases were planted upon him. Because of this background, he was implicated falsely in the present case. SC No. 211/09 & SC No. 212/09 19/45
State Vs. Pawan @ Diggi
18. Arguments have been heard from Ld. Addl. PP for State as well as Ld. Counsel for the accused in both cases together.
19. Ld. Addl. PP for State had argued that the prosecution case is based on the statement of a eyewitness who has narrated the incident by giving all the details and specifically described the role played by the accused Pawan @ Diggi in the commission of the offence. He argued that the accused was armed with a country made revolver at the time of commission of the offence. It was further argued by him that the apprehension of the accused in FIR No. 174/05, PS Badar Pur led to the accused making disclosure statement. Pursuant to this disclosure statement, a black colour raxin bag which the deceased Sanjay was having, was recovered and this recovery of the bag further connect the accused with the commission of the offence. Therefore, it was argued by Ld. Prosecutor that the statement of the eyewitness coupled with the recovery of a black colour bag belonging to the deceased, prove the offence against the accused beyond doubt. He further argued that accused when arrested in FIR No. 174/05, PS Badar Pur, was found in possession of a country made SC No. 211/09 & SC No. 212/09 20/45 State Vs. Pawan @ Diggi revolver which was opined as a 'fire arm' in the FSL report. Recovery of this country made revolver from the accused has been proved by the police officials as well as public witness Naresh (PW 8 in FIR No. 174/05, PS Badar Pur). He further argued that since the accused had obstructed government servants in discharge of their duty when they were acting on a secret information about the persons involved in the commission of the offence, therefore, the accused Pawan @ Diggi is also liable for the offence under Sec. 186/353 IPC. He further argued that in FIR No. 174/05, PS Badar Pur (SC No. 211/09), Sanction under Sec. 39 of Arms Act has been proved vide Ex. PW 9/C whereby the then DCP, South had given the Sanction on 21.06.05. He further argued that the complaint was also filed under Sec. 195 CrPC for the offence under Sec. 186/353 IPC and the said complaint Ex. PW 9/A has been proved by Sh. Sanjay Tyagi, the then ACP, examined as PW
11. It was also his argument that there is no substantive defence taken by the accused in support of his defence. As regards the plea of the accused that he was apprehended from the bus stand of Ali Village and in the police station he was given a lathi blow on his hand, Ld. Addl. PP for State argued that it was a routine type of defence which accused SC No. 211/09 & SC No. 212/09 21/45 State Vs. Pawan @ Diggi generally take to create doubt as to the credibility of the action of police officials. In nut shell, it was the argument of Ld. Prosecutor that prosecution case stands proved in both the case in FIR No. 174/05, PS Badar Pur and FIR No. 167/05, PS Badar Pur, beyond reasonable doubt.
20. Ld. Counsel for the accused, on the other hand, argued that it is a false and fabricated which has been planted upon the accused to solve the case of murder. He argued that as per the prosecution case there were 4/5 persons who had robbed the deceased Sanjay, who was accompanied by the Naresh (complainant in FIR No. 174/05, PS Badar Pur). He submitted that if the accused was accompanied by 4/5 other persons, why they could not be arrested by the police despite their names being given by the accused in his disclosure statement. It was his argument that the accused would not be committing the offence with some unknown person and the fact that the accused has been falsely implicated, is reflected by the act of the police because in the disclosure statement only the name of 4/5 other persons have been mentioned without their addresses. If the disclosure statement Ex. SC No. 211/09 & SC No. 212/09 22/45
State Vs. Pawan @ Diggi PW 10/A in FIR No. 174/05, PS Badar Pur, is voluntary then nothing could have stopped the accused from giving the addresses of those persons who were named by him. He argued that this makes the prosecution case doubtful and, therefore, accused is entitled for benefit of doubt. It was further argued by him that no public witness has been joined by the Investigation Officer at the time of arrest of accused in the FIR No. 174/05, PS Badar Pur. It was also argued that the solitary statement of PW 15 Naresh (complainant in FIR No. 167/05, PS Badar Pur) does not prove the involvement of the accused in the commission of the offence on the night of 3/4 .03.05 when a truck driver namely Sanjay was robbed of Rs. 7 to 8 thousands which were in his bag. He argued that solitary statement of a public witness can be relied upon but there has to be some other corroborative piece of evidence otherwise it is not safe to rely upon single solitary statement.
21. So far as the case in FIR No. 167/05, PS Badar Pur, is concerned, there is no doubt that it is based on the solitary statement of an eyewitness namely Naresh examined as PW 15. Apart from that, there is one more evidence on which the prosecution rely and that is SC No. 211/09 & SC No. 212/09 23/45 State Vs. Pawan @ Diggi recovery of the black colour raxin bag at the instance of the accused Pawan @ Diggi on which the truck number HR38G4745 was written in paint. However, before considering the evidential value of the recovery made at the instance of the accused, it is important to understand the statement of PW 15 Naresh (complainant in FIR No. 167/05, PS Badar Pur) and to judge whether his solitary statement is sufficient enough to connect the accused with the offence.
22. The law with regard to the solitary statement of a witness is no more resintegra. The settled position of law is that plurality of evidence is not the requirement of law. A single statement of a witness, if found reliable, can be acted upon to convict an accused. In the case of Jagdish Prasad Vs State of M. P. (AIR 1994 SC 1251), it was observed by the Hon'ble Supreme Court as under: " The court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. SC No. 211/09 & SC No. 212/09 24/45
State Vs. Pawan @ Diggi That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'The Evidence Act). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise." In a recent judgment in Vithal Pundalik Zendge Vs. State of Maharastra (AIR 2009 (SC) 1110, the Hon'ble Supreme Court again considered the same aspect and made the following observation: SC No. 211/09 & SC No. 212/09 25/45 State Vs. Pawan @ Diggi "..5. The law relating to the approach of the courts when prosecution version essentially rests on the testimony of a single witness has been highlighted by this court in many cases.
.... 6. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, 1872, the following propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of different character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single SC No. 211/09 & SC No. 212/09 26/45 State Vs. Pawan @ Diggi witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an 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 a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
...7. Therefore, there is no hesitation in holding that the contention that in a murder case the court should insist upon plurality of witnesses, is much too broadly SC No. 211/09 & SC No. 212/09 27/45 State Vs. Pawan @ Diggi stated."
23. The law, therefore,is now crystal clear that the statement of a single eyewitness can be acted upon and it will depend on the facts and circumstances of each case whether the single testimony of the witness should be relied upon or not. Keeping in view this position of law in mind, the statement of PW 15 Naresh (complainant in FIR No. 167/05, PS Badar Pur) can be considered.
24. The case of the prosecution is that the deceased Sanjay was driving the truck bearing number HR38G4745 which was coming from Nagpur to Delhi. The complainant Naresh (PW 15 in FIR No. 167/05, PS Badar Pur) was also with him working as a cleaner / helper. They had paid the toll tax at Badar Pur Border and when they crossed the same, they were intercepted by a Maruti car out of which 3/4 boys got down, the accused being one of them, and boarded the said truck, gave beatings to the driver as well as cleaner / helper. When Sanjay resisted taking of the bag containing Rs 7 to 8 thousands, he was stabbed repeatedly. The postmortem report Ex. PW 1/A SC No. 211/09 & SC No. 212/09 28/45 State Vs. Pawan @ Diggi shows that there were 16 injuries out of which nine were stab injuries, which were sufficient to cause death in ordinary course of nature.
25. PW 15 Naresh (complainant in FIR No. 167/05, PS Badar Pur) had deposed in the court that on the night of 04.03.2005, he was working as a conductor in truck bearing number HR38G4745 and Sanjay (deceased) was working as driver on the said truck. On the said night at about 2.30 am, the truck had reached the Badarpur toll tax, Sanjay paid toll tax of Rs. 100 and got a slip to that effect and, thereafter, when they proceeded ahead, a Maruti car came and stopped in front of the truck and 3/4 boys got down from it and boarded the truck. Accused Pawan @ Diggi was one of those boys, who had placed a revolver on the temple of Sanjay and pushed him and threw on the rear seat of the truck. One person among those boys took over the driver seat of the truck and started plying the truck towards Delhi. Those boys gave beatings to him as well as Sanjay and had snatched the raxin bag of black colour of Sanjay (deceased) on which the truck number was written with white colour and which contained Rs. 7 to 8 thousands. The accused took the truck towards Sarita Vihar and when SC No. 211/09 & SC No. 212/09 29/45 State Vs. Pawan @ Diggi Sanjay asked those boys not to take truck towards Sarita Vihar, one of those boys who was having knife, started giving knife blows to Sanjay. He deposed that accused Pawan @ Diggi along with other boys had caught hold Sanjay at that time. The witness was subjected to cross examination by the Ld. Defence counsel but the witness could not be shaken. Ld. Defence counsel had posed a question to the witness why he was not medically examined to which he replied that he had sustained minor injury with kick blows, therefore, he was not medically examined. He further stated that he had also given the description of the accused persons to the police. However, it is very interesting to note that the accused had given a suggestion to this witness which he accepted as correct. The witness accepted as correct that accused Pawan @ Diggi had put the katta on the temple of deceased Sanjay but he did not cause injury to him.
26. It is further noted that PW 15 Naresh when came to depose in the court in the month of October, 2007, he had given his age about 18 years and when he again came to depose in the court he stated that at the time of incident his age was around 14 years. A boy of 14 SC No. 211/09 & SC No. 212/09 30/45 State Vs. Pawan @ Diggi years is generally considered a child witness but how much credit is to be given to a witness of this age, would depend upon the maturity level of the witness. The boy who is 14 years of age can be more mature then a boy about 18 years of age. The judicial notice can be taken of the fact that PW 15 Naresh even though was 14 years of age at the time of incident but was working as a helper / cleaner on a truck to earn his livelihood. This shows that this boy has more exposure to the life then other boys of his age who do not have to work to earn their livelihood. Moreover, the manner in which he faced the cross examination and gave logical and rational answers, shows his maturity level. Therefore, the circumstances would suggest that this witness was mature enough to understand the incident and describe the same to the police and later on in the court. This witness had clearly deposed that 3/4 boys had boarded the truck and the accused was one of them. The accused was possessing a revolver which he had put on the temple of deceased Sanjay and he had also pushed Sanjay and threw him on the rear seat. If this witness was a planted witness, he could have assigned the main role of stabbing of Sanjay to this accused. In the crossexamination, he truthfully stated that the accused did not SC No. 211/09 & SC No. 212/09 31/45 State Vs. Pawan @ Diggi cause injury on Sanjay nor the accused had beaten him. Therefore, PW 15 Naresh (complainant in FIR No. 167/05, PS Badar Pur) is a natural witness whose presence at the spot at the time of incident, cannot be doubted. His presence on the spot is further proved by the prosecution in the statement of PW 22 Rajesh Kapoor (In FIR No. 167/05, PS Badar Pur) who has deposed that Naresh (PW 15) was working on the truck bearing number HR38G4745 as a cleaner and on 04.03.2005 Sanjay deceased and Naresh (PW 15) were on duty on that truck which was coming from Nagpur to Delhi. Moreover, the witness PW 15 Naresh had no reason to name the accused falsely in this case. He did not even know the accused. There was no occasion for him to falsely identify him in this case.
27. The truthfulness of this witness is also reflected from another fact. The accused in this case was first apprehended in FIR No. 174/05, PS Badar Pur which was registered when the accused resisted his apprehension. The perusal of the copy of FIR No. 174/05, PS Badar Pur (Ex. PW 23/A) would show that when the police party had reached near the railway line, it had seen two boys coming SC No. 211/09 & SC No. 212/09 32/45 State Vs. Pawan @ Diggi towards the police booth. The witness PW 15 Naresh (complainant in FIR No. 167/05, PS Badar Pur) had identified only the accused Pawan @ Diggi as the person involved in the incident which had happened on the night of 3/4.03.2005. If he was not a truthful witness, he could have named both the boys as accused involved in the commission of the offence on the night of 3/4 .03.2005.
28. Ld. Defence counsel had also taken this plea in the arguments that the police had apprehended two boys on the secret information but let off one and implicated the accused Pawan @ Diggi in this case falsely. It is not a question of letting off a person. There was no justification for the police to apprehend the other boy in the case as he was not identified by the complainant PW 15 Naresh (In FIR No. 167/05, PS Badar Pur). Therefore, the statement of PW 15 Naresh inspire confidence and nothing could be seen in his statement which could make his statement doubtful or raise an eyebrow on the credibility of the statement.
29. Although, the statement of an eyewitness by itself is SC No. 211/09 & SC No. 212/09 33/45 State Vs. Pawan @ Diggi sufficient to prove the offence but in the present case, there is additional evidence which also connect the accused with the offence. PW 24 ACP R. S. Dahiya was the Investigation Officer of this case, who had received the disclosure statement Ex. PW 10/A which was made by the accused in FIR No. 174/05, PS Badar Pur. In this disclosure statement, the accused Pawan @ Diggi had stated that he had shared the money, which was in the bag, with his other accomplices and the bag, which also contained some documents, was thrown in the bushes near the forest in Madan Pur Khadhar This bag which the accused is talking about in his disclosure statement Ex. PW 10/A, was the same bag which was taken by them from the deceased Sanjay. The bag produced in the court as Ex. PW 10/E was bearing the truck number HR38G4745. This part of the disclosure statement where the accused speak about the bag having being thrown in the bushes leading to its recovery, can be taken into evidence against him. Sec. 27 of the Indian Evidence Act is very clear in this regard. Although, by virtue of Sec. 25 & 26 of the Indian Evidence Act, whatever stated by an accused to the police or in the presence of police official, cannot be taken into evidence, however, the exception is made SC No. 211/09 & SC No. 212/09 34/45 State Vs. Pawan @ Diggi in Sec. 27 of Indian Evidence Act which makes admissible so much of the statement of accused which leads to the discovery of a fact deposed by him and connected with the offence. Sec. 27 of the Indian Evidence Act states that when a fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, as relates distinctly to the fact thereby discovered, may be proved.
30. As to the relevancy of a disclosure statement and how much of a disclosure statement of an accused can be used by virtue of Sec. 27 of Indian Evidence Act, the judgment given by Privy Council in Pulukuri Kotayya Vs. King Emperor, AIR 1947 Privy Council 65 gives an insight. While giving a interpretation to Sec. 27 of Indian Evidence Act, their Lordship observed as under: " It is fallacious to threat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the SC No. 211/09 & SC No. 212/09 35/45 State Vs. Pawan @ Diggi object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
SC No. 211/09 & SC No. 212/09 36/45
State Vs. Pawan @ Diggi
31. In the present case, PW 15 Naresh (complainant in FIR No. 167/05, PS Badar Pur) had stated that accused persons had taken a bag which was of black colour and on which the truck number was written. This bag contained Rs. 7 to 8 thousands. The recovery of this bag, therefore, at the instance of the accused, connect him with the offence. His statement that he had taken the money from the bag and distributed the same among his accomplices and then he took his share of money, cannot be read in evidence against the accused and even his statement that after taking out the money, he had thrown the bag in bushes by itself will not be admissible However, the recovery of the bag from the bushes as per the seizure memo Ex. PW 10/D, is a 'fact' which has been discovered pursuant to the disclosure statement of the accused vide Ex. PW 10/A. So, this recovery of the bag Ex. PW 10/E is connecting the accused Pawan @ Diggi with the offence and is an additional piece of evidence on record.
32. Now, the question arise whether the accused can be held guilty for the offence under Sec. 397 IPC as well. As per the case of prosecution, the accused was armed with a country made revolver SC No. 211/09 & SC No. 212/09 37/45 State Vs. Pawan @ Diggi which he had used at the time of commission of the offence. Sec. 397 IPC was invoked against him only for the reason that complainant Naresh (PW 15 in FIR No. 167/05, PS Badar Pur) in his supplementary statement had stated that the accused was armed with a revolver. The accused Pawan @ Diggi was later on arrested in FIR No. 174/05, PS Badar Pur in which a country made revolver was recovered from his possession but prosecution could not link the said recovery of country made revolver from the possession of accused in FIR No. 174/05, PS Badar Pur, to the revolver allegedly used by him at the time of commission of the offence in FIR no. 167/05, PS Badar Pur. It is not the case of the prosecution that the revolver, which was recovered from the possession of the accused in FIR No. 174/05, PS Badar Pur, was the same which was used by him at the time of committing the offence.
33. PW 15 had deposed that accused was armed with a revolver which he had put on the temple of the of deceased Sanjay. For the applicability of Sec. 397 IPC, this much user of the revolver was sufficient but the prosecution was under the boundened duty to prove SC No. 211/09 & SC No. 212/09 38/45 State Vs. Pawan @ Diggi that it was a revolver, it could be a toy revolver also or some other instrument. So, it cannot be said with certainty that accused was armed with a weapon which could be described as 'deadly weapon'. Therefore, the accused Pawan @ Diggi deserve to be given benefit of doubt and his liability will be restricted only to the offence under Sec. 392 IPC read with Sec. 34 IPC and he cannot be fasten with liability under Sec. 397 IPC.
FIR NO. 174/05, PS BADAR PUR (SC NO. 211/09)
34. In this case, the statement of PW 7 SI Suresh Sharma is material. He deposed about receiving of a secret information regarding two persons who were involved in the incident of the night of 3/4.03.2005, who had snatched money from the driver of the truck and had also given knife blows to him. When he disclosed this information to the SHO concerned, he directed him to also take Naresh (complainant in FIR No. 167/05, PS Badar Pur) with him for the identification of the accused. The secret information as well as directions issued by the SHO were noted down in the DD register vide number 21 A Ex. PW 7/A. This witness further deposed that he had SC No. 211/09 & SC No. 212/09 39/45 State Vs. Pawan @ Diggi organized a raiding party in which he associated Ct. Jawahar, Ct. Rajesh, Ct. Harpal, Ct. Dayaram, Ct. Hemant, secret informer and the complainant Naresh and they reached police booth, Mohan Co operative near railway line Badarpur at about 5.30 pm, where HC Samarpal and Ct. Surender also met him who were also joined in the police party. He gave instruction to the staff to take their position and at about 6.15 pm, two boys were seen coming from Agra side railway line towards NTPC. When they were at a distance of 7/8 meters from the police booth, the complainant Naresh (PW 8 in FIR No. 174/05, PS Badar Pur) pointed out towards the boy who was wearing pink shirt as the one who had put the pistol on the temple of the driver Sanjay. On the pointing out of PW 8 Naresh (complainant in FIR No. 167/05, PS Badar Pur), police party took action and those boys started running. The accused Pawan @ Diggi took out a Katta from his right dub and pointed out towards the police party threatening to shoot but the police party did not stop. He was given a danda blow which hit on his hand as a result of which the katta fell down. He was overpowered by the police party and his name was later on discovered as Pawan. The country made katta was found loaded with one cartridge. Its sketch SC No. 211/09 & SC No. 212/09 40/45 State Vs. Pawan @ Diggi was prepared and it was seized. Therefore, the usual investigation was conducted.
35. This statement of PW 7 has been corroborated by PW 6 Ct. Daya Ram and PW 8 Naresh. The statements of these three witnesses support the prosecution case up to the hilt. There is no reason to disbelieve the statement of these witnesses.
36. Ld. Defence counsel had taken the plea that public witness were not joined by SI Suresh Sharma despite the fact that he had prior information and had sufficient time to join the public witness.
37. SI Suresh Sharma when came into the witness box, in the crossexamination said that he had asked 5/6 public persons to join the investigation but they refused. It is a common knowledge that generally public show apathy in joining the police in any inquiry or investigation. The reason for this may be numerous which need not be discussed on this forum but it is a fact and will be acknowledged by everybody that no person willing join the police in the investigation of SC No. 211/09 & SC No. 212/09 41/45 State Vs. Pawan @ Diggi a case.
38. Should the statement of police officials be disbelieved when despite the efforts the public witness do not come forward to join the investigation? Police officials are public servant deserving the same respect from the court as any other witness. Court should not set with a presumption or prejudice that police officials would falsely implicate persons just to solve the case. Such an inference would be justified only when there are peculiar circumstances which raise doubt on the conduct of the police officials. However, it is not so in the present case. If the events are seen in the sequence then it will be obvious that the story of the prosecution has ring of truth. The incident took place on the night of 3/4.03.2005. The injured truck driver was brought to the hospital but later on succumbed to the injuries and Sec. 302 IPC was added in the FIR No. 167/05, PS Badar Pur. The complainant was available with the police when the information regarding the accused involved in the incident of robbery was received. It was very natural for the police officials to take the assistance of the complainant for the identification of person involved in the incident of robbery in the night of 3/4.03.2005. These sequences of the event do not leave any room SC No. 211/09 & SC No. 212/09 42/45 State Vs. Pawan @ Diggi for the doubt. The public witness honestly identified only one person who was involved in the incident. The recovery of the country made revolver shows the criminal propensity of the accused Pawan @ Diggi. He not only resisted his apprehension but also threatened the police party with the revolver and thereby he caused obstruction in the discharge of public duty by the police team headed by SI Suresh Sharma who was acting on a secret information and was justified in asking the accused to stop for inquiry. The complaint under Sec. 195 CrPC has been filed which has been duly proved The FSL report Ex. PW 9/B proves that the cartridge and the revolver were fire arm and ammunition respectively as defined in Arms Act. So, the charges against the accused for the offence under Sec. 186/353 IPC and Sec. 25 of Arms Act also stand proved.
39. The defence taken by the accused in FIR No. 174/05, PS Badar Pur and FIR No. 167/05, PS Badar Pur is the same. He filed written submission in FIR No. 167/05, PS Badar Pur and examined one witness in defence in FIR No. 174/05, PS Badar Pur. His defence was that on the date of his apprehension, he had gone to Charela SC No. 211/09 & SC No. 212/09 43/45 State Vs. Pawan @ Diggi Village, NOIDA and was coming back from the said village along with his motherinlaw Smt. Saroj (DW 1) when the police party had apprehended him at the Ali Village bus stand. This defence of the accused became doubtful from the fact that in his statement under Sec. 313 CrPC in FIR No. 174/05, PS Badar Pur, he stated that he was picked up along with Vinod from Ali Village bus stand while they were coming from Sec. 37, Charela Village, NOIDA and at that time his motherinlaw was also with him. He further submitted that in the police station there was one other boy namely Sanjay. He was given a lathi blow on his hand in the police station. DW 1 Smt. Saroj talk about the same fact but is conspicuously, silent about apprehension of one Vinod along with accused Pawan @ Diggi from the bus stand Ali Village. This makes the defence of the accused doubtful. Moreover, in the light of statements of eyewitness of the incident and the other witnesses in whose presence accused was apprehended, the defence of the accused does not inspire much confidence. VERDICT 40 Considering the evidence on record, the accused Pawan @ Diggi is held guilty for the offence punishable under Sec. 392 SC No. 211/09 & SC No. 212/09 44/45 State Vs. Pawan @ Diggi IPC read with Sec. 34 IPC and Sec. 302 IPC read with Sec. 34 IPC in the FIR No. 167/05, PS Badar Pur and convicted accordingly. He is also held guilty for the offences punishable under Sec. 186/353 IPC and Sec. 25 of Arms Act in the FIR No. 174/05, PS Badar Pur and convicted accordingly.
41. Copy of this judgment be placed in both the case files. Announced in the open court (AJAY KUMAR KUHAR) on 9 Aug 2010 Addl. Sessions Judge02: South East th Patiala House Court: New Delhi SC No. 211/09 & SC No. 212/09 45/45 State Vs. Pawan @ Diggi IN THE COURT OF SHRI AJAY KUMAR KUHAR ADDL. SESSIONS JUDGE02: SOUTH EAST PATIALA HOUSE COURTS NEW DELHI IN RE: Sessions Case No. 212/09 ID No. 02403R0376352005 FIR No. 167/05 PS Badar Pur U/s 392/302/34 IPC State Vs. Pawan @ Diggi S/o Sh. Gaya Prasad R/o 882, Jhuggi Gautampuri, PH1, Badar Pur, New Delhi And IN RE: Sessions Case No. 211/09 ID No. 02403R0727422005 FIR No. 174/05 PS Badar Pur U/s 186/353 IPC & Sec. 25 of Arms Act SC No. 211/09 & SC No. 212/09 46/45 State Vs. Pawan @ Diggi State Vs. Pawan @ Diggi S/o Sh. Gaya Prasad R/o 882, Jhuggi Gautampuri, PH1, Badar Pur, New Delhi ORDER ON SENTENCE By this common order, I shall consider the sentence of the convict Pawan @ Diggi in FIR No. 167/05, U/s 392/302/34 IPC, PS Badar Pur and FIR No. 174/05, U/s 186/353 IPC & Sec. 25 of Arms Act, PS Badar Pur, for the reason that both the cases have been decided together by a common judgment.
2. The submissions of Ld. Counsel for the convict are that convict is sole bread earner of his family consisting of one minor child as well. It is further submitted by Ld. Counsel that the conduct of the convict during the trial is good, therefore, lenient view may be taken.
3. Ld. Addl PP for State, on the other hand, submitted that the convict has criminal propensities which is reflected from his act in FIR No. 174/05, PS Badar Pur as the convict when approached by the SC No. 211/09 & SC No. 212/09 47/45 State Vs. Pawan @ Diggi police, he resisted his apprehension and also pointed out a revolver on them and threatened them to shoot. He also submitted that there is previous involvement of the convict in number of cases. Therefore, he deserve to be punished severely.
4. I have considered the submissions and the facts and circumstances and award the following sentence to the convict: FIR No. 167/05, PS Badar Pur
5. Convict Pawan @ Diggi has been held guilty and convicted for the offences under Sec. 302 IPC read with Sec. 34 IPC and Sec. 392 IPC read with Sec. 34 IPC. The case of the convict does not fall into the category of rarest of rare case. Hence, for the offence under Sec. 302 IPC read with Sec. 34 IPC, convict is sentenced to Imprisonment for Life and also sentenced to pay fine of Rs 5,000/. In default of payment of fine, he shall further undergo SI for 5 months.
6. For the offence under section 392 IPC read with Sec. 34 IPC, convict is sentenced to Rigorous Imprisonment for 5 years SC No. 211/09 & SC No. 212/09 48/45 State Vs. Pawan @ Diggi and also sentenced to pay fine of Rs. 2000/. In default of payment of fine, he shall further undergo SI for two months. Benefit of Sec. 428 Cr.PC be given to the convict. Both the sentences shall run concurrently.
FIR No. 174/05, PS Badar Pur
7. For the offence under Sec. 186 IPC, convict is sentenced to Rigorous Imprisonment for three months.
8. For the offence under Sec. 353 IPC, convict is sentenced to Rigorous Imprisonment for two years.
9. For the offence under Sec. 25 of Arms Act, convict is sentenced to Rigorous Imprisonment for two years and also sentenced to pay fine of Rs. 1000/. In default of payment of fine, he shall further undergo SI for one month. Benefit of Sec. 428 Cr.PC be given to the convict. Sentences shall run concurrently.
10. The sentences awarded in both the cases i.e, Pawan @ Diggi in FIR No. 167/05, U/s 392/302/34 IPC, PS Badar Pur and SC No. 211/09 & SC No. 212/09 49/45 State Vs. Pawan @ Diggi FIR No. 174/05, U/s 186/353 IPC & Sec. 25 of Arms Act, PS Badar Pur, shall run concurrently. Committal warrants be prepared accordingly.
11. Copy of judgment and order on sentence be given to the convict free of cost. Case files be consigned to record room. Announced in the open court (AJAY KUMAR KUHAR) on 12th Aug 2010 Addl. Sessions Judge02: South East Patiala House Court: New Delhi SC No. 211/09 & SC No. 212/09 50/45