Delhi District Court
State vs 1. Nadeem on 1 February, 2020
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
Sessions Case No. : 1332 of 2018
State Versus 1. Nadeem
S/o Islamuddin
R/o Village & PS Naugaon,
Distt. Amroha, U.P.
2. Shahzad (Shejad)
S/o Late Salim
R/o 365 E/14/G,
Jhuggi New Seelampur, Delhi.
FIR No. : 143/2018
Under Section : 392/394/397/34 IPC
Police Station : Gazipur
Chargesheet Filed On : 20.06.2018
Chargesheet Allocated On : 20.07.2018
Chargesheet received by this Court on: 21.07.2018
Judgment Reserved On : 28.01.2020
Judgment Announced On : 01.02.2020
JUDGMENT:
1. The brief facts of the prosecution case are that on 16/17.04.2018, on duly receipt of DD No.4A dated 17.04.2018 by SI Arun Kumar, he along with HC Yashbir reached at the spot i.e. Gazipur Bus Stand, where no injured was found available and he came to know that injured persons were removed to LBS hospital by PCR Van. Then he reached at LBS hospital and collected the MLC SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 of injured Harsh Gautam and recorded his statement, who stated that on 16.04.2018, he along with his cousins Shubham and Anees, had gone to Mayur Vihar Extension, Big Bazar Shopping Center and thereafter, they left from there at 11:30 p.m., for their home and went at Kalyanpuri Bus Stand by auto rickshaw and from there they walked on foot and reached at Gazipur Bus Stand at 12:00 night and waited for the bus. In the meantime, one Apache motorcycle bearing no. DL7886 came there on which three persons were sitting. Pillion riders of said motorcycle came to them and showed desi katta and took out mobile phones of his cousins Shubham and Anees and when he protested, one of the assailants caused injury on his head with the butt of the desi katta and ran away from there on their motorcycle.
2. On the basis of statement of complainant, present case FIR u/s 394/34 IPC was registered. During investigation, Sections 394/397 IPC & 27 Arms Act were also added. Site plan was prepared at the pointing out of complainant. Statements of witnesses were recorded u/s 161 CrPC. It was found that accused persons of case FIR No.144/18 u/s 398/34 IPC, PS Gazipur, were involved in the present case. During investigation, IO got information that accused Nadeem of present case was arrested in case FIR No. 202/18, u/s 25/54/59 Arms Act, PS Bhajanpura. Thereafter, on 20.04.2018, after taking Court permission, IO interrogated accused Nadeem, who confessed to have committed crime of this case along with coaccused Shahzad and admitted that weapon of offence i.e. desi katta has already been recovered from him. Accused Nadeem was formally arrested in this case and his disclosure statement was recorded. During TIP proceedings, accused Nadeem was identified by the eye witnesses Harsh Gautam and Shubham. Accused Nadeem was also produced SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 before the Court in case FIR No.144/18, u/s 398/34 IPC, PS Gazipur and sent to judicial custody in that case. During investigation, IO received information vide DD No.8A, dated 23.05.2018 that coaccused Shahzad and Sharik, who were wanted in this case, were arrested u/s 41.1 D & 102 CrPC, PS Anand Vihar vide DD No. 24A. On this information, after taking permission of the court, IO interrogated both the coaccused, who also confessed to have committed crime of this case and were formally arrested in this case and their disclosure statements were recorded. During TIP of said coaccused persons, eyewitness Anees identified coaccused Shahzad only and he failed to identify coaccused Sharik. No case property was recovered from or at instance of coaccused Sharik and therefore, he was got released in this case. One day police custody remand of coaccused Shahzad was obtained during which he disclosed that he had committed crime of this case with accused Nadeem and one Hatela, whose name and address he did not know. Efforts were made to search coaccused Hatela but he could not be traced. During investigation, statements of witnesses were recorded and Section 27 Arms Act was added in this case.
3. On conclusion of the investigation, chargesheet was filed against the accused Nadeem and Shahzad before the court of ld. MM for the offences punishable under Sections 392/394/397/34 IPC & 27 Arms Acts.
4. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Sec. 397 IPC was exclusively triable by it.
5. Vide order dated 04.08.2018, charge under Section 392/394/397/34 IPC was framed against both accused persons, to which both accused pleaded not guilty and claimed trial.
SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14
6. The Prosecution in support of its case examined 14 witnesses in all.
PW1 Harsh Gautam is the complainant. He proved his statement Ex.PW1/A, given to police, on the basis of which present case FIR was registered.
PW2 ASI Birbal was the Duty Officer. He proved his endorsement Ex.PW2/A on Rukka and FIR Ex.PW2/B and certificate u/s 65B of Indian Evidence Act Ex.PW2/C. He also proved DD No.4A.
PW3 Anees is one of the victims and eyewitness of the incident. He corroborated the statement of PW1 and identified both the accused persons before the court.
PW4 Shubham is also one of the victims and eyewitness of the incident. He also deposed on the lines of PW1 and PW3 and identified both the accused persons before the court and identified both the accused persons to be the same who had committed crime in this case.
PW5 HC Yashbir Singh stated that on 17.04.2018, he was on night emergency duty at PS Gazipur and on receipt of DD No.4A, he had accompanied SI Arun Kumar to the spot and thereafter to LBS Hospital, where IO had obtained MLC of injured Harsh Gautam; recorded his statement; prepared Rukka and handed over it to him for registration of FIR and he got lodged the FIR on the basis of Rukka and handed over it to the IO along with copy of FIR.
PW6 ASI Satish stated that on 19.04.2018, he was posted in AATS (NE). He gave detailed deposition regarding apprehending and arresting accused Nadeem and having recovered desi katta from him in case FIR SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 No.202/18, PS Bhajanpura. He further deposed that later on, SI Arun, IO of case FIR No. 143/18, PS Gazipur, had met him and recorded his statement.
PW7 SI Jaiveer was the second IO of the case FIR No. 202/18, PS Bhajanpura, in which accused Nadeem was arrested and one desi katta, two live cartridges and mobile phone make MI were recovered from his possession. This witness proved the disclosure statement Ex.PW7/A of accused Nadeem, wherein he disclosed about his involvement in the present matter along with his associate Shahzad.
PW8 Ct. Rameshwar has joined the investigation with IO/SI Arun Kumar and proved interrogation report Ex.PW8/A of accused Nadeem and pointing out memo Ex.PW8/B, prepared by IO at the instance of said accused.
PW9 Ct. Sanjeev has joined ASI Satish Rana of AATS (NE) and stated on the lines as deposed by PW6 ASI Satish.
PW10 ASI Pawan Malik was posted on 23.05.2018 in Special Staff (Shahdara). He informed PS Gazipur regarding arrest of accused Shahzad and Sharik vide DD No.8A.
PW11 HC Chander Bhan has joined the investigation with IO/ASI Arun Kumar and proved the arrest memo of accused Shahzad Ex.PW11/A and his disclosure statement Ex.PW11/B. PW12 SI Shailender has also joined the investigation with IO/ASI Arun and proved the pointing out memo Ex.PW12/A, prepared by the IO at the instance of accused Shahzad.
PW13 Ct. Adesh has also joined the investigation with IO/ASI Arun Kumar and proved arrest memo Ex.PW13/A and disclosure statement SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 Ex.PW13/B of accused Nadeem.
PW14 SI Arun Kumar was Investigating Officer and has conducted the proceedings of present case. He also proved the statement of complainant Harsh Gautam vide Ex.PW1/A and his endorsement Ex.PW14/A on the same. Further, he proved arrest memo Ex.PW13/A and disclosure statement Ex.PW13/B of accused Nadeem and pointing out memo Ex.PW8/A prepared at the instance of accused Nadeem and after completion of investigation, prepared chargesheet and filed the same before court.
7. Vide separate statement dated 16.04.2019, ld. Addl. P.P. for the State has dropped PW Ct. Deepak No. 2543/NE as SI Jaiveer has already been examined as PW9 on the same facts in FIR no. 144/18 and PW07 SI Jaiveer in FIR no. 143/18 on the same facts and on 17.07.2019, he has also dropped PW Ct. Rahul as ASI Pawan Malik, IO of DD no.5 has already been examined as PW10 in this regard.
8. During prosecution evidence, the accused persons in their joint statement u/s 294 CrPC admitted the following documents and statement u/s 161 CrPC :
(1) TIP proceedings of accused Shahzad conducted by Sh. Rakesh Kr. Rampuri, the then Ld. M.M. Ex.C1 (colly.);
(2) TIP proceedings of accused Nadeem conducted by Sh. Subhash Kr. Mishra, the then Ld. M.M. Ex.C2 (colly.);
(3) MLC No. 4925 of injured Harsh Gautam with opinion as 'Simple' Ex.C3 to be proved by PW Dr. Sandeep, CMO, LBS Hospital;
(4) Ahlmad of PS Bhajanpura in case FIR no. 202/18 alongwith original record;
SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 (5) DD no. 28B dated 20.04.2018 Ex.C4 to be proved by PW ASI Phere Ram;
(6) DD no. 8A dated 23.05.2018 Ex.C5 to be proved by PW ASI Banwari Lal;
(7) Statement of MHC(M) PS Bhajanpura alongwith register no.19.
9. The statement of both accused persons was recorded under Section 313 CrPC in which they denied all the incriminating evidence against them. They pleaded their innocence and further pleaded their false implication. Both accused persons also stated that nothing was recovered from their possession or at their instance. The accused persons did not lead any evidence in their defence.
10. Ld. Addl. P.P. for the State argued that prosecution has been able to prove the charge framed against the accused persons through ocular testimonies of prosecution witnesses. He also submitted that there is no reason to disbelieve the testimonies of the prosecution witnesses including the complainant/PW1 Harsh Gautam and eye witnesses PW3 Anees and PW4 Shubham, who are totally strangers to the accused persons, and there is no reason to implicate either of these accused persons falsely in this case at the hands of the victims who have clearly identified the present accused persons as the persons who committed crime upon them. He argued that the accused persons failed to give any reasonable account for their false implication. He submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of both accused stands fully established. Ld. Addl. P.P., therefore, prayed for conviction, as per the charges framed.
11. Per contra, ld. defence counsel submitted that the prosecution case is built on sand and is liable to be demolished as the testimony of the SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 complainant/injured/PW1 Harsh Gautam and eye witnesses PW3 Anees and PW4 Shubham are full of doubts, contradictions and improvements. Ld. defence counsel also stated that non citation of public persons is another dent to the prosecution case and nothing was recovered from their possession. Ld. defence counsel further argued that since the prosecution has failed to prove its case against either of these accused persons for any of the charges framed against them, prayed for acquittal of the accused persons.
12. Rival submissions considered and material on record have been perused in view of the law on the issue in question.
13. Admittedly, the star and key witnesses of the present prosecution case is complainant/injured PW1 Harsh Gautam and eye witnesses/victims PW 3 Anees and PW4 Shubham. They in clear and unequivocal terms stated that on the date and time of the incident, mobile phones of PW3 and PW3 were robbed by the accused persons. To facilitate the matter, testimony of PW1 Harsh Gautam is hereby reproduced as:
"..... On 16.04.2018, I alongwith my cousin Shubham and Anees had went to Mayur Vihar Extension for purchasing from Big Bazar Shoping Centre and thereafter we all left from there at around 11.30 PM for going our house at Gamri Village and we all were standing at Gazipur Bus Stand for waiting bus at about 12.00 mid night. In the meantime, one Apachay Motorcycle 200 Black Colour Motorcycle bearing No. DL7886 came there and three persons were sitting on the said motorcycle. Thereafter, two boys who were sitting as pillion rider came to us and when we left from there after seeing them, the said two boys wrongfully restrained us and then took out gun both of them separately and shown us and then both of them remove the mobile phone of Shubham and Anees. I objected, one of the assailant cause injury on my head with the butt of the gun and SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 then all the three accused persons ran away towards Anand Vihar Bus Stand Side after taking the mobile phones of Shubham and Anees. The make of mobile phone of Shubham was Honor 9I of black colour. I immediate call to police at 100 number. xxxxx Witness pointed out towards accused Nadeem who had caused injuries on my head with butt of the gun and was involved in robbing the mobile phones of Shubham and Anees. Witness has also identified the accused Shahzad who is present in the court today (both the accused persons are correctly identified by the witness)...".
14. Perusal of the above, it is clear that victim/injured has narrated the entire incident and identified the accused persons as responsible for the crime committed upon him and his cousins Anees and Shubham. Now the court has to see the evidentiary value of the said witness.
15. As regard the contention of ld. defence counsel that testimony of PW1 Harsh Gautam, the complainant/victim is full of improvements and contradictions, ld. defence counsel failed to point out any such improvement and contradiction which may go to the root of the case. Besides the above, it is also well settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. Minor discrepancies in the statements of witnesses are of no help to the accused. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
16. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Hon'ble Apex Court observed that :
"In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, 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 of a normal person."
17. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra, (Crl. A. 2526/2000) the Hon'ble Apex Court SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 held as under :
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. xxxxx There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
18. It is admitted fact that the parties were not known to each other prior to the date of incident. There is no reason for false implication of either of these accused persons at the hands of complainant as well as victims. Rather, the complainant and victims would be the most interested person to see the actual culprits behind the bars.
19. In case reported as Deepak & Ors Vs. State, 2015 VII AD (Delhi) 140, Hon'ble Court has observed as :
SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 "Testimony of injured witness reveals that material facts stated by him in examinationinchief have remained unchallenged and uncontroverted in crossexamination - no ulterior motive assigned to victim for falsely implicating them for serious injuries sustained by him in incident when there was no previous animosity - victim not expected let real offenders go scot free and implicate his friend - xxxx- inconsistent defence led by appellant, to set up plea of alibi, FIR lodged without delay least possibility of victim to concoct false story in such short period - no bar to base conviction on sole testimony of injured if it inspires confidence.
20. Apart from that, it is also clear from the record that victims identified these accused persons during judicial test identification parade proceedings and even accused persons during their statement under Sec. 294 CrPC, recorded on 01.05.2019, admitted the proceedings of test identification parade conducted by ld. Metropolitan Magistrates.
21. With these observations, as discussed above, nothing has come on record which may even remotely suggest that testimony of the complainant/injured and victims suffer from any material contradictions and/or improvements.
22. Contention of ld. defence that noncitation and nonexamination of any other public witness present at the spot is of no value as it is not the number of witnesses which is material rather it is the quality of the evidence which counts. For this, reference is taken with a judgment reported as Kishan Chand Vs. State of Haryana, JT 2013 (1) SC 222. Apart from that, as mentioned above, PW1, PW2, PW3 and PW4 are not known to the accused persons.
23. It is well settled law that the prosecution has to prove its case beyond all reasonable doubts. Accused persons have been charged for the SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 offences punishable under Sec. 397 IPC.
24. First of all, the court shall deal with the offence punishable under Sec. 397 IPC.
25. Qua offence punishable under Sec. 397 IPC, it is clear that while PW1 Harsh Gautam appeared before the court, during his examinationinchief stated that accused Nadeem caused injuries on his head with the butt of the gun. PW3 Anees and PW4 Shubham also during their examinationinchief stated regarding using desi katta by accused Nadeem towards them while committing robbery of their mobile phones. They are the only witnesses to depose about the fact that whether any weapon was used in the crime of robbery and if so, which one was that. However, the weapon of offence was not recovered during investigation nor identified nor obtained any expert opinion. As such, there is no sufficient material on record to bring home the guilt of the accused persons under Sec. 397 IPC. However, these witnesses in clear and unequivocal terms stated that these accused persons are responsible for the crime of robbery committed upon and during said commission of offence, PW1 sustained injuries.
26. MLC Ex.C3 of PW1 Harsh Gautam is clear to the aspect that on the date of incident, at about 12.40 a.m., he was brought to hospital by ASI Satyapal. In their joint statement u/s 294 CrPC, the accused persons have already admitted the MLC Ex.C3.
27. To attract applicability of Sec 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another - it is necessary that each coperpetrator should have the necessary intent to participate or otherwise SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14 have requisite awareness or knowledge that the offence is likely in view of the common design. [Saleem (Mohd.) Vs. State, 2013 V AD (Crl) (DHC) 301].
28. With the above discussion, it is clear that complainant and victims in clear terms stated that PW3 and PW4 were robbed at the hands of the accused persons and even PW1 sustained injuries during the commission of said offence.
29. Hence, with these observations and discussed the matter above, court is of the view that has come to the conclusion that the prosecution has failed to prove its case against either of these accused persons for the offence punishable under Section 397 IPC and as such, accused persons are acquitted of the offence punishable under Sec. 397 IPC but these accused persons namely Nadeem and Shahzad are held guilty for the offences punishable under Sec. 392/394/34 IPC.
30. Sum up of the above discussion is that prosecution has failed to prove its case beyond all reasonable doubts to bring home the guilt against either of these accused persons for the offence punishable under Sec. 397 IPC and as such, accused persons namely Nadeem and Shahzad are acquitted for the offence punishable under Section 397/34 IPC. However, accused persons Nadeem S/o Islamuddin and Shahzad S/o Late Salim are held guilty for the offences punishable under Section 392/394/34 IPC as the prosecution has fully proved its case and are convicted accordingly. Announced in the open Court Dated : 1st February, 2020 (Dr. Satinder Kumar Gautam) Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
SC No. 1332/18 State Vs. Nadeem Etc. Page No. 14 of 14