Delhi District Court
Sheik Salman@Ganju vs State Nct Of Delhi on 31 October, 2023
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04, CENTRAL,
TIS HAZARI COURTS, DELHI.
CNR No. DLCT01-014004-2022
CA No. 207/2022
Sheik Salman @ Ganju
R/o. H. No. 55, Gali No. 14,
Near Shiv Mandir, Ram Park,
Loni, Ghaziabad, Uttar Pradesh.
.... Appellant
Vs.
The State
.... Respondent
Date of institution of appeal : 07.10.2022
Date on which Order reserved : 23.09.2023
Date on which Order pronounced : 31.10.2023
ORDER
1. This is a criminal appeal U/s. 374 Cr. P.C., filed by the appellant against the impugned judgment dated 08.08.2022 and order on sentence dated 08.09.2022 passed by the ld. Trial Court of Sh. Anurag Dass, ld. ACM.M., Central, Tis Hazari Courts, Delhi, in the criminal matter bearing CIS No. 4801/2020 in FIR No. 07/2020, U/s. 356/379/411 IPC, PS ODRS, titled as "State Vs. Sheik Salman @ Ganju", whereby the CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 1 of 16 appellant was convicted u/s. 356/379/411 IPC and was sentenced to simple imprisonment for three years alongwith fine of Rs. 1,000/- for the offence u/s. 379 IPC and simple imprisonment for three years alongwith fine of Rs. 1,000/- for the offence u/s. 411 IPC, simple imprisonment for two years alongwith fine of Rs. 1,000/- for the offence u/s. 356 IPC, and in default of payment of fines, to undergo further simple imprisonment for a period of one month.
2. The brief facts of the case are that the FIR was registered on the written complaint of the complainant Dr. Sakshi Tomar on the allegations that on 20.03.2020 at around 10.00 a.m., while she was travelling in the ladies compartment in Shalimar Express Train, the appellant Sheik Salman @ Ganju entered the compartment and took her belongings on the urge of knife. She gave the description of her mobile i.e. Samsung Galaxy A70 White colour on the said complaint.
3. The IO HC Mukesh Ram prepared the rukka in which he recorded that the complainant had informed that her wallet was containing mobile phone Samsung Galaxy A70, SIM No. 8377977724, IMEI No. 355922101731202, ID Proof and around Rs. 2,800/- cash. On the basis of such rukka, the present FIR U/s. 356/379 IPC was recorded.
4. During investigation, the appellant was arrested on the basis of secret information and the stolen mobile phone as well as cutter used in the commission of offence was CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 2 of 16 recovered from the possession of the appellant. The appellant refused to participate in the TIP proceedings.
5. During trial, the charge u/s. 356/379/411 IPC was framed against the appellant. During prosecution evidence, the prosecution examined three witnesses.
6. PW-1 Sakshi Tomar is the complainant in the present case. PW-2 HC Mukesh Ram is the first IO and PW-3 ASI Sukhpal is the second IO in the present case.
7. After prosecution evidence, the accused was examined u/s. 313 Cr. P.C. wherein he denied all the incriminating evidence against him and claimed false implication. He opted not to lead any defence evidence.
8. Finally, the accused was convicted for the offences u/s.
356/379/411 IPC and was sentenced as per the impugned judgment and order on sentence by the ld. Trial Court.
9. Assailing the said impugned judgment and order on sentence, the present appeal has been filed by the appellant and it is contended that the Ld. Trial Court had failed to consider the plea of the appellant that he has been falsely implicated in the present case. It is contended that the ld. Trial Court has failed to appreciate that the testimony of the complainant is not believable and there are material improvements in her testimony. It is further contended that in the testimony before the Court, she has made major improvements that her mobile and purse was taken out from her tote bag and such statement was never made by the complainant before the CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 3 of 16 IO. It is further contended that in the complaint, it is mntioned that the robber had used the knife but later on the complainant had identified the paper cutter as the weapon used in the commission of the offence. It is further contended that the complainant further improvised and stated that the accused was intoxicated while committing the offence. It is argued that the averments of the complainant are highly improbable that she was alone in the apartment as the incident had taken place at 10.00 a.m. in the general coach of Shalimar Express Train. It is further argued that she had met four police officials after the incident but she had not disclosed the facts to any of them which makes her testimony not believable. It is further contended that the statement of the complainant is calculative and afterthought merely to falsely implicate the appellant. It is further argued that PW-2 HC Mukesh Ram who was the first IO has admitted in cross- examination that the complainant had not disclosed to him anything else except the facts mentioned in the complaint. It is further argued that it is highly improbable that CCTV and public witnesses are not available on the railway station. It is further argued that no finger prints were collected from the mobile phone and the alleged paper cutter and no recovery was made from the appellant. It is further argued that the complainant never produced the original mobile bill and the copy produced by her shows it to be in the name of some other person. It is further argued that the impugned orders are based on surmises and conjectures and the ld. Trial Court has failed CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 4 of 16 to consider the arguments led by th Counsel for the appellant. It is prayed that the appellant may kindly be acquitted and the appeal may be allowed.
10. To the contrary, ld. Addl. PP for State contended that the ld. Trial Court had rightly passed the impugned judgment and order on sentence. It is argued that PW-1 Ms. Sakshi Tomar has fully supported the case of the prosecution and she has correctly identified the appellant in the Court. It is further argued that FIR is not the encyclopedia of the entire incident. It is argued that he robbed mobile phone and the paper cutter was recovered from the possession of the appellant. It is further argued that there is no motive for the complainant to falsely implicate the appellant in the present case. It is further argued that the prosecution has proved its case against the appellant beyond reasonable doubts. It is therefore, prayed that the present appeal may kindly be dismissed.
11. This Court has heard the rival contentions from both the sides and perused the judicial record meticulously.
12. The prosecution case rests only on the version of the complainant PW-1 Ms. Sakshi Tomar as she was traveling alone in the Shalimar Express Train at the time of incident and no other public person was present.
13. In the initial complaint Ex. PW-1/A, the complainant merely stated that she has been looted of her belongings on the point of knife. The rukka prepared by PW-2 HC Mukesh Ram also records that the complainant was CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 5 of 16 looted of her wallet containing her mobile phone, ID Proof and cash of around Rs. 2,800/-. The FIR has been recorded at 1:40 p.m. on 20.03.2020 while the alleged incident has taken place at 10.00 a.m. Thus, there is no delay in the registration of FIR. Thus, the chances of concoction, exaggeration and after-thought with respect to happening of the alleged incident of loot of the aforesaid belongings of the complainant on the point of knife. Further, the fact is further corroborated by the railway ticket Ex. PW-1/B which has been proved by the complainant, vide which the complainant was travelling by Shalimar Express Train on 20.03.2020 from Meerut city to Delhi junction.
14. The appellant had refused to participate in the TIP proceedings and an adverse inference has to be taken against the appellant that if he would have participate in the TIP proceedings, he would have been identified by the complainant.
15. During examination of the complainant as PW-1 before the Court, she has correctly identified the appellant as the person who has entered into the compartment of Shalimar Express Train and looted the wallet and mobile phone of the complainant by putting the paper cutter on her neck. PW-1 also identified her mobile phone which was recovered from the possession of the appellant. She also identified the paper cutter Ex. P-1 which was used by the appellant at the time of commission of crime.
CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 6 of 1616. The ld. Counsel for appellant had argued that the complainant had considerably made improvements over her complaint while making the testimony in the Court and as such her statement is not reliable. The holistic reading of the testimony of the complainant would reveal that she had given the complete picture of the incident and the role/act of the appellant while committing the crime. It is settled law that FIR cannot be said to be the encyclopedia of the incident. The complainant was not bound to disclose each and every minute details of the event occurred at the time of incident. She had stated in the FIR that she has been looted of her belongings on the point of knife. The looted belongings were mentioned by the IO while recording the rukka. Thus, there cannot be any doubt regarding happening of the incident with the complainant. The only question that remains is whether the perpetrator of the crime is the accused or not. To that extent, the complainant has correctly identified the appellant as the offender. There is reason or motive for the complainant to falsely identify the accused/appellant as there is no previous enmity between the complainant and the appellant. They were unknown to each other and as such, there is no reason apparent on record for false implication of the appellant. PW-1 had stood the stringent test of cross-examination and her testimony remains to be cogent, convincing and reliable.
17. The Court has to see the broad probabilities of the case and cannot be swayed by the minor contradictions or CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 7 of 16 inconsistencies in the statement of the witnesses. Some aberrations are bound to happen with time.
18. The looted mobile phone was recovered from the possession of the accused/appellant which was having the same IMEI number. The cutter which was used by the appellant during the commission of the offence was also recovered from him. The recovery and seizure of the said mobile phone and the cutter vide memos Ex. PW-2/A and Ex. PW-2/B have been duly proved by the testimony of PW-3 ASI Sukhpal Singh. There is nothing in the cross- examination of PW-3 to disprove the said recovery.
19. It is settled law that testimony of a single witness is sufficient for basing the conviction of the accused but the silver lining is that the testimony must be cogent, convincing and reliable. It is not the quantity of the witnesses but the quality of the testimony that matters. It is well said that the evidence must be weighed and not counted.
20. At this juncture, it is relevant to quote the observations made by Hon'ble High Court of Delhi in Raju Kumar and Anr vs State, in Crl. A. no. 533/2000, decided on 18.02.16, which are as follows:
"16. It is trite law that it is not the quantity of the evidence but the quality of evidence led by the prosecution to prove the case beyond reasonable doubt against the accused. The conviction can safely be based on the testimony of a sole eye-witness whose presence gets further credited if the eye- witness is a natural witness or an injured witness. In the present case Shashi Shukla was not only a CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 8 of 16 natural eye-witness but also an injured eye- witness."
21. The Hon'ble Apex Court in the case of Jarnail Singh Vs. State of Punjab, 2009 (1) Supreme 224, observed that the courts below had failed to properly analyse and scrutinize the evidence of the sole eye witness. The Hon'ble Apex Court held that it is no doubt true that conviction could be based on the solitary testimony of a sole eye witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish.
22. In the case of Anil Phukan Vs. State of Assam, AIR 1993 Supreme Court 1462, the Hon'ble Apex Court summarized the manner and circumstances under which a solitary witness related to the deceased could form the basis of conviction. The relevant extract is reproduced below:
"3....Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye-witness is a wholly unreliable witness that his testimony is CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 9 of 16 discarded in toto and no amount of corroboration can cure that defect..."
23. Further, in the case of Ramji Suriya Vs. State of Maharashtra 1983 CrLJ 1103, the Hon'ble Apex Court has observed as follows:
"There is no doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against the accused concerned provided the court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill will is suggested."
24. In the present case, the complainant who is the only eye witness has supported the prosecution case and is found to be wholly reliable. The testimony of a witness can be divided into three categories-wholly reliable, partly reliable and not reliable. In the present case, since the witness/PW-1 is wholly reliable, her testimony is safe to be acted upon without any material corroboration from independent evidence.
25. From the testimonies of the witnesses and the evidence available on record, the fact emerges is that the incident had occurred with the complainant and the perpetrator of the alleged crime is the appellant.
26. Considering the overall evidence on record, this Court is of the view that the prosecution has succeeded in discharging its burden to prove the case against the CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 10 of 16 appellant beyond reasonable doubts. The evidence is sufficient for convicting the accused/appellant for the alleged offence. Accordingly, the impugned judgment of conviction dated 08.08.2022 of the ld. Trial Court is upheld.
27. As far as the impugned order on sentence dated 08.09.2022 is concerned, it appears that though the ld. Trial Court had taken the affidavits of the convict as well as of the ld. APP for the state in compliance of judgment of the Hon'ble High Court of Delhi in Karan vs. State of NCT of Delhi, Crl. Appeal No. 352/2020 decided on 27.11.2020, but the further directions of the said judgment does not seem to be adhered by the ld. Trial Court. The Hon'ble High Court of Delhi in Karan case (Supra) ordained as follows :-
"Summary Inquiry
171. A summary inquiry is necessary to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused.
This Court is of the view that the summary inquiry be conducted by Delhi State Legal Services Authority (DSLSA) considering that DSLSA is conducting similar inquiry under the Delhi Victim Compensation Scheme, 2018 and is well conversant with the manner of conducting the inquiry.
173. After the conviction of the accused, the Trial Court shall direct the accused to file the affidavit of his assets and income in the format of Annexure-A within 10 days.
174. After the conviction of the accused, the Court shall also direct the State to disclose the expenses CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 11 of 16 incurred on prosecution on affidavit along with the supporting documents within 30 days.
175. Upon receipt of the affidavit of the accused, the Trial Court shall immediately send the copy of the judgment and the affidavit of the accused in the format of Annexure-A and the documents filed with the affidavit to DSLSA.
176. Upon receipt of the judgment and the affidavit of the accused, DSLSA shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing their recommendations to the Court within 30 days. Delhi State Legal Services Authority shall seek the necessary assistance in conducting the inquiry from SDM concerned, SHO concerned and/or prosecution who shall provide the necessary assistance upon being requested.
177. The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same. The Court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their Scheme.
178. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.
179. In pending appeals/revisions against the order on sentence in which Section 357 CrPC has not been complied with, the Public Prosecutor shall file an application seeking a direction from the Court for directing the accused to file his affidavit of assets and income in the format of Annexure-A and CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 12 of 16 directions to DSLSA to conduct a summary inquiry to ascertain the loss/damage suffered by the victim(s) and the paying capacity of the accused in the format of Annexures-B/B-1 in terms of Sections 357(4) Cr. P.C. in accordance with procedure mentioned hereinabove.
180. All the Courts below shall send a monthly statement to the Registrar General of this Court containing the list of cases decided each month. The list shall contain the name and particulars of the case; date of conviction; whether affidavit of assets and income has been filed by the accused; whether summary inquiry has been conducted to assess the compensation and determine the paying capacity of the accused; and compensation amount awarded. The monthly statement shall also contain one page summary format of the above information. The first monthly report for the period 01st January, 2021 to 31 st January, 2021 be submitted by 15 th February, 2021 and thereafter, by 15 th of each English calendar month. The Registrar General of this Court shall place these reports before ACR Committee of the Judicial Officers."
28. Further, it also appears that the ld. Trial Court has not considered the aspect of probation which is the mandatory requirement as per law.
29. At this juncture, it is relevant to quote Section 360 and 361 Cr. P.C. which reads as under :
"360. Order to release on probation of good conduct or after admonition:-
(1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 13 of 16 probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour............
................
361. Special reasons to be recorded in certain cases.- Where in any case the Court could have dealt with-
(a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or
(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so."
30. While sentencing the appellant vide the impugned order on sentence, the Ld. Trial Court had not considered whether the convict can be released on Probation or not. Section 360 Cr. P.C. provides a mandate upon the court to consider the release of the convict on Probation, provided the conditions of the section are met. If the court is of the view that the convict is not entitled to be released on Probation then the reasons for the same have to be recorded mandatorily.
31. At this juncture, it is relevant to refer to the observations made by the Hon'ble Apex Court in Chandreshwar Sharma v. State of Bihar, (2000) (SCC) 245, which are as follows: -
CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 14 of 16"From the perusal of the judgment of the learned Magistrate as well as the court of appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed."
32. Accordingly, the judgment of the Ld. Trial Court dated 08.08.2022 regarding the conviction of appellant under section 379/356/411 IPC is upheld and the order on sentence dated 08.09.2022 is set aside.
33. Since the appellant has not been appearing before this Court and his appearance could not be ensured and the ld. Counsel for appellant has submitted that she has no contact with the appellant, the ld. Trial Court is directed to ensure the presence of the appellant before itself and to rehear the appellant on the quantum of sentence after following the directions laid down in Karan case (Supra) as well as for considering the mandatory aspect of probation.
34. With these directions, the present appeal is accordingly disposed of.
35. Copy of this order be supplied to the ld. Counsel for appellant .
CA No. 207/2022 Sheik Salman @ Ganju Vs. State Page No. 15 of 1636. Copy of this order alongwith TCR be sent to the Ld. Trial Court for information and necessary action.
37. Appeal file be consigned to Record Room.
SUSHIL Digitally signed
by SUSHIL ANUJ
Pronounced in open court ANUJ TYAGI
Date: 2023.10.31
on 31st day of October, 2023 TYAGI 15:30:02 +0530
(SUSHIL ANUJ TYAGI)
Additional Sessions Judge-04,
Central, Delhi, THC, Delhi.
CA No. 207/2022
Sheik Salman @ Ganju Vs. State Page No. 16 of 16