Delhi District Court
State vs Harender Nagar on 3 May, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 84 of 2017
State Versus Harender Nagar
S/o Sh. Rakesh
R/o B52, East Vinod Nagar,
Delhi.
FIR No. : 153/2015
Under Section : 394/398/34 IPC
& 27 Arms Act
Police Station : Kalyanpuri
Chargesheet Filed On : 26.07.2016
Chargesheet Allocated On : 17.02.2017
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 29 .04.2019
Judgment Announced On : 03.05.2019
JUDGMENT
1. The case of the prosecution, in brief, is that on 18.02.2015 on receipt of DD No. 9A, SI Arun Ahlawat reached at the spot i.e. NH24, CNG Pump, near footover bridge where ERV staff and Beat Ct. Chander Bhan met him and crowd was gathered there and a car bearing no. DL7CN SC No. 84/17 State Vs. Harender Nagar Page No.: 1 of 18 9827 was found which was hit with a railing. SHO also reached at the spot and called the crime team. The apprehended boy was handed over to him by the public whose name was later on revealed as X (JCL - name withheld) who disclosed that he along with coaccused Harender Nagar committed the crime and at that time katta which was with him, fell down on road when he was apprehended by the public persons. Thereafter, Investigating Officer recorded the statement of complainant Neel Shikha Singh.
2. On the basis of statement of complainant, the case u/s 394/398/34 IPC and 27 Arms Act was registered. Culprit X (JCL) was apprehended and interrogated. The site plan was also prepared. Efforts to search the weapon of offence was made but in vain.
3. During the investigations of the case, accused Harender Nagar surrendered himself before the court, as such, said accused was also apprehended. Formal proceedings were conducted. On conclusion of the investigation, chargesheet was filed against the present accused before the court of Ld. MM for the offences punishable under Sections 394/398/34 IPC and 27 Arms Act.
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. 398 IPC is exclusively triable by it.
5. Vide order dated 18.05.2017, passed by Ld. Predecessor, charge under Section 394/398/34 IPC was framed against the present accused Harender Nagar to which, he pleaded not guilty and claimed trial.
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6. The prosecution in support of its case examined seven witnesses in all. The gist of their testimonies are as under :
PW1 Allauddin stated that on 18.02.2015 at about 7.30 am, when he was going to Alcon School for dropping a school student and reached just ahead of Gazipur Gol Chakkar near CNG Pump, he saw that a white colour car was running in a zigzag manner. He also saw that two boys were inside the car whereas car was being driven by a lady and both those boys were beating that lady. On seeing this, he shouted for help and then said lady driver took her car on the left side and hit against a wall after hitting the potato rehri due to which, its bonnet got opened and two rear doors of car also got opened and one boy wearing black clothes of morning walk came out from left rear door of car and second boy who was wearing blue colour clothes of morning walk, came out of the right side rear door of the car. He caught hold the second one and public persons also gathered there. Thereafter, he went from there to drop the child, after leaving the apprehended boy in the custody of public. Thereafter, he again came back at the spot where police officials recoded his statement. This witness was declared hostile and cross examined by ld. Addl. P.P. PW2 Ms. Neel Shikha Singh is the victim of present case who stated that on 18.02.2015 at about 7.30 am, she along with her daughter Tamiksha in her Maruti Swift car bearing no. DL7CN9827 reached near SC No. 84/17 State Vs. Harender Nagar Page No.: 3 of 18 Gazipur flyover footover bridge, NH24, near CNG Pump from where her friend Vandana used to pick her daughter to drop her son as well as Tamiksha to school at Chanakyapuri. There, her friend Vandana came and picked her daughter and left for school. When she turned to get into her car which already had the keys in it, two boys whom she have seen for the last 23 days standing there, came there and one of them entered from the opposite gate of driving seat with a katta. At the same time, another boy (accused Harender) came at driver seat and started pulling her outside from the driver seat gate. She immediately caught hold the steering wheel. Accused pulled her and caught her leg and during that time, the person who was sitting at adjacent seat of driving seat with katta, came to the driver seat and he pushed her outside from her car and till that time, she had not released the steering wheel from her hands then, accused Harender told to other coaccused (JCL) to run along with the car. Thereafter, the person having katta started the car with the keys which were already in the ignition. At that time, many persons were gathered near the place of incident. Then JCL accused who started the car and tried to run away from there and at that time, she was partly inside and partly outside the car, she was kept holding the steering wheel from her hands, in fact, she was sitting in the lap of JCL in the car and caught hold the steering wheel with the JCL. Due to that reason, JCL could not drive the car properly and hit the potato rehri from the front side and then, car was climbed on the footpath and hit the railing at the road, so car was stopped. JCL run away with katta from the driver seat SC No. 84/17 State Vs. Harender Nagar Page No.: 4 of 18 side after pushing her outside the car. The JCL was apprehended by the public at a few distance from the place of accident and beaten by the public. Thereafter, she immediately informed the police at 100 number from her mobile. Police came there and public persons handed over said boy to the police. At that time, JCL was not having katta in his hands and accused Harender already ran away from the place of incident. PW1 proved her statement vide Ex.PW2/A, site plan Ex.PW2/B and photographs of her car are Ex.PW2/C1 to PW2/C4.
PW3 Dr. Abbas, Medical Officer, has proved the MLC No. 2262/15 of Neel Shikha Singh vide Ex.PW3/A prepared by Dr. Anuj and nature of injuries were opined by him as 'Simple fresh'.
PW4 Ct. Monu stated that on 20.02.2015, he along with Investigating Officer SI Arun reached at Karkardooma Courts where IO moved an application before ld. M.M. for arrest and interrogation of accused Harender Nagar which was allowed. He proved the arrest memo Ex.PW4/A, personal search memo Ex.PW4/B and disclosure statement of accused ExPW4/C. PW5 HC Vinod, Duty Officer, proved the FIR Ex.PW5/A and DD No. 9A Ex.PW5/D. PW6 Sh. Anudeep stated that on the day of incident at about 7/7.30 a.m., he went to CNG pump at NH24 for filling CNG in his car. After seeing the crowd on road, he reached there and saw an accident and 2 3 vegetable reheris of potato and tomato were overturned and lying on the SC No. 84/17 State Vs. Harender Nagar Page No.: 5 of 18 road and one car was climbing on the footpath. This witness was declared hostile and crossexamined by ld. Addl. P.P. PW7 SI Arun Ahlawat is the Investigating Officer of present case who conducted the entire investigation proceedings of this case. He also proved endorsement Ex.PW7/A on ruqqa and seizure memo of car vide Ex.PW7/B.
7. During proceedings, accused Harender Nagar in statement recorded under Sec. 294 CrPC admitted the documents i.e. TIP proceedings conducted by Sh. J.P. Nahar, ld. M.M. as Ex.C1 and proceedings conducted by MHC(M) regarding register no.19.
8. The statement of the accused was recorded under Section 313 CrPC in which he denied all the incriminating circumstances against him. He pleaded his innocence and further pleaded his false implication. The accused stated that he has been falsely implicated in this case only on the basis of manipulated disclosure statement of JCL who was having inimical terms with him. The accused did not lead any evidence in his defence.
9. Ld. Addl. P.P. for the State argued that prosecution has been able to prove the charges through evidence of witnesses including complainant. He argued that there is no reason to disbelieve the testimony of the victim/PW2 Neel Shikha Singh, which is cogent and credible and is sufficiently corroborated by medical evidence and is totally stranger to him and moreover no illwill, grudge or enmity has either been alleged or proved between them. He argued that the accused failed to give any reasonable SC No. 84/17 State Vs. Harender Nagar Page No.: 6 of 18 account for his false implication. Ld. Addl. P.P., therefore, prayed for conviction, as per law. He submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of the accused stands fully established.
10. Ld. counsel for accused argued that the case of the prosecution is full of doubts as testimonies of the public witnesses having full of contradictions and improvements whereas PW2 Neel Shikha Singh had made contrary statement that car no. DL7CP9827 was registered in her name however, the same was in the name of her father. Her father has executed the Superdarinama for release of said car however, she in the crossexamination stated that she appeared in the court for release of car only once with her father. As per her deposition, the incident took place at 7.35 a.m. but the call was made through PCR at 8.02 a.m. FIR was registered at 9:25 Hours. It is also matter of record that no MLC of PW2 Neel Shikha Singh proved injuries caused to her by any of the assailants though, there was some bruises and abrasions. The alleged weapon of offence i.e. katta was not recovered, stated to be shown to intimidate the witness. It is further argued that there is material contradiction in the site plan whereas PW2 has testified that she was coming to Anand Vihar from Ghaziabad but in DD and site plan, shows as Ghaziabad to Delhi. It is further argued that no such crime was committed by the accused and he has been implicated falsely implicated on the basis of disclosure statement of the JCL who was having inimical terms with him and thus, the accused has been SC No. 84/17 State Vs. Harender Nagar Page No.: 7 of 18 implicated falsely in this case and prayed for acquittal of the accused.
11. I have carefully gone through the entire material on record and have considered the rival submissions of the parties.
12. The accused is facing trial for the offence u/s 394/398/34 IPC alleging that he had attempted to commit the robbery of car bearing registration no. DL7CP9827 while using the pistol by his associate as deadly weapon in order to create terror in the mind of victim, as such, facing trial of the charges u/s 394 and 398 IPC r/w Section 34 IPC.
13. Section 394 IPC deals with the liability of robbers some of whom caused hurt. Such hurt must be caused voluntarily while committing robbery. The preparator of hurt apart, others who are jointly concerned in committing or attempting to commit such robbery, is constructively liable despite not causing any hurt whatsoever to the victim.
14. Victim/PW2 Neel Shikha was medically examined vide MLC Ex.PW3/A whereas showing some bruises and abrasions on her finger, elbow, ankle and below eye. It also revealed from the deposition that no deadly weapon like pistol was used while causing hurt by the person to the victim nor any weapon was recovered from his possession. Even she also stated that no weapon was used while committing the robbery by the assailants.
15. In judgment reported in Guman Singh Vs. State of Rajasthan, 1982 CrLR (Raj.) 570 observed that "Removal of ornaments from the body of victim after inflicting fatal injuries is not an offence under Section 394 SC No. 84/17 State Vs. Harender Nagar Page No.: 8 of 18 IPC. This Section imposes severe punishment when hurt is caused in committing robbery". It is also a matter of fact that the vehicle in question was not found from the possession of accused. It was attempted to remove from the possession of the complainant and in the meanwhile, coaccused (JCL) was apprehended by public persons and the vehicle was lying on the footpath. PW2 Neel Shikha Singh in her examination in chief stated that :
"....two boys whom I have seen for the last 23 days standing there, came there and one of them entered from the opposite gate of driving seat with a katta. At the same time, another boy (accused Harender) who is present in the court today came at driver seat and started pulling me outside from the driver seat gate. I immediately caught hold the steering wheel. Accused present in the court today pulled me out and caught my leg and during that time, the person who was sitting adjacent seat of driving seat with katta, and he came to the driver seat and he pushed me towards outside from my car, so I was outside from the car. I kicked him and freed my leg. Till that time, I had not released the steering wheel from my hands. Accused Harender present in the court today directed to other coaccused who is JCL, lateron I came to know, told JCL "tu car le kar bhaag". Thereafter, the person having katta started the car with the keys which were already in the ignition. At that time, so many persons were gathered near the place of incident. JCL accused started the car and SC No. 84/17 State Vs. Harender Nagar Page No.: 9 of 18 tried to run away from there. At that time, I was partly inside and partly outside the car and I was caught holding the steering wheel from my hands. In fact, I was sitting in the lap of JCL accused in the car and caught hold the steering wheel with the JCL. Due to that reason, JCL accused could not drive the car properly and hit the aloo rehri from the front side and then, car was climbed on the footpath and hit the railing at the road, so car was stopped. JCL accused run away with katta from the driver seat side after pushing me outside the car. The JCL accused was apprehended by the public at few distance from the place of accident and started beating him. I immediately called the police at 100 number from my mobile. Police came there and public persons handedover said boy to the police. At that time, JCL accused was not having katta in his hands and accused Harender already ran away from the place of incident....".
16. Complainant/PW2 Neel Shikha Singh stated that she has joined the TIP proceedings at Rohini Jail where she came to know that the accused has refused to participate in TIP proceedings. PW2 stated that on 19.03.2015, when she came in Karkardooma Courts to get her vehicle released, at that time, she met with IO where she correctly identified accused Harender Nagar who was with the police and who has committed the crime.
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17. The offence u/s 398 IPC defines "if at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years". Section 398 does not create a substantive offence, but only regulates the measure of punishment when certain facts are found to exist in the commission of substantive offence of robbery or dacoity. This section can regulate the punishment only in cases of an attempt to commit robbery as distinguished from a case in which the offender has accomplished his purpose and robbery has actually been committed. The charge was attempt to commit robbery armed with weapon and accused was convicted. In case of Arun Anthony Swamy v. State of Karnataka, 2010 CrlJ 1948 (Kar), it was observed that "Though knives were recovered from possession of accused in presence of Panchas at scene of offence, panchas have not been examined to prove seizure. It is also found that there is no evidence placed on record to show that knives seized were deadly weapon so as to attract provisions of Section 398, High Court set aside the conviction.
18. Accordingly, in the present case, the weapon was not found at the place of incident nor recovered from possession of either of the accused persons nor any of the witness to this effect have been examined whether stated by the complainant that deadly weapon was used by the JCL as such of does not attract the ingredients of Section 398 IPC. Though, on the SC No. 84/17 State Vs. Harender Nagar Page No.: 11 of 18 contrary, PW1 Allauddin, a public person was present at the place of incident and testified in his examinationinchief stated that two police officials were present at the spot and calling his name and his vehicle number and he informed about the incident. Police noted down his name, address and mobile number. Thereafter, he left from there and police called him after 34 months of the incident and he again told the whole story to the police. He told that "...he cannot identify the first boy who could managed to escape from there wearing black colour clothes was having some weapon in his hand which he threw from the road towards down side of the road...". In crossexamination done by ld. Addl. P.P., this witness has confronted with his statement Ex.PW1/X recorded by police and he has denied making such statement and denied each and every contents of the same.
19. Complainant/PW2 Neel Shikha Singh in her crossexamination on behalf of accused has stated that "..... When I had opened the door of my car to sit on the driving seat, accused Vishal was also entered in the car from left front door with a gun simultaneously. I do not know from which side either front or back door of car, other accused came there as I was about to enter in the car after opening the door. Accused Vishal (JCL) was able to sit on the driver seat eventually. I had not seen accused when he sat on the left side front seat. I was never frightened nor I asked the accused as to why he has entered in my car. Vol. I was shocked to see him in my car. I was able to sit on the driver seat of car. Keys of car were already in the ignition box. I had not started the engine. Some scuffle had taken place SC No. 84/17 State Vs. Harender Nagar Page No.: 12 of 18 between me and said person who was siting in the car. The car was started by the person who was inside the car. Immediately after starting the car, said person drove the car".
20. The accused was charged for attempting to commit robbery and there was no recovery of said car from the possession of accused or at his instance though he has allegedly run away from the spot and JCL was apprehended. The present accused was apprehended on 20.02.2015 and his disclosure statement was recorded on 03.03.2015 and his refusal to join TIP proceedings as he was shown to the complainant in the court room after completion of TIP proceedings to identify him where he refused to join the same. The accused can not be convicted u/s 394 IPC as there was no substantive evidence to show that feature of accused was shown to the complainant after the occurrence. There was a sufficient gap between the incident and TIP parade for about 1012 days. The accused was not seen at the scene of crime. To prove the guilt of the accused, there was no arm with any deadly weapon shown or allegedly found in his possession. Even though, there is no evidence to show that the present accused was in possession of any deadly weapon or JCL was in possession of the same. The fire arm was not used for committing the offence. Though, there is accessibility of gunshot fire though it is not appropriate to face the trial by the accused for possession of firearm as neither any recovery from the JCL or from the possession of accused is made out nor so is the story of the prosecution.
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21. As per Section 114(a) of the Evidence Act, when the stolen property is recovered from a person, soon after the commission of theft or dacoity, a presumption can be raised that either he has himself committed the offence of theft or he has received the stolen property. In this case, the vehicle was recovered at the place of incident and at that time, accused was not present and same was recovered from the possession of JCL. Even otherwise, the evidence is that that the present accused was apprehended on the basis of the disclosure statement of JCL. The present accused told to the JCL as per version of JCL, "tu car le kar bhaag" but he could not succeed to remove the vehicle from the spot as such, it would be justified to raise a presumption against him as only evidence produced against him as he is one of the culprits, who had committed the offence of robbery.
22. Section 385 IPC is a distinction between the inchoate and the consummated offence is recognised. The attempt to commit extortion may proceed so far as to put a person in fear of injury, or there may be an attempt to excite such fear; but there may not be any delivery of property, etc. this section punishes the putting of a person in fear of injury in order to commit extortion. For the purpose of Section 385 IPC, it is necessary that the accused should have put some person in fear of injury in order to extort some property from him. "Injury" includes only such harm as may be caused illegally to a person's mind, body, reputation or property. In order to constitute an offence u/s 385 IPC, it is not necessary that the threat should be SC No. 84/17 State Vs. Harender Nagar Page No.: 14 of 18 of some conduct which might either constitute an offence in criminal law or which might be made the basis of a civil action for damages.
23. In the background of above evidence as well as the ingredients of Section 394 IPC which is not applicable under the present facts and circumstances of the case though, as per material on record as well as the deposition of PW2 Neel Shikha Singh, it revealed that the present accused in connivance with the JCL attempted to remove the vehicle from the possession of the complainant as such, attracted the Section 385 r/w Sec. 34 IPC.
24. Admittedly, no illwill, enmity or grudge has either been alleged or proved against the accused, facing trial before the court. There is no reason for false implication of the accused at the hands of the complainant/victim. Rather complainant/victim would be the most interested person to see the actual culprit behind the bars. In case reported as Deepak & Ors Vs. State, 2015 VII AD (Delhi) 140 Hon'ble Court observed that -
"...testimony of injured witness reveals that material facts stated by him in examination-in-chief have remained unchallenged and uncontroverted in cross-examination - 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 - accused persons did not deny their presence at spot - 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 SC No. 84/17 State Vs. Harender Nagar Page No.: 15 of 18 on sole testimony of injured if it inspires confidence.
25. Besides the above, it is also to be seen that accused only took the plea that the plea that he has been implicated in this case only on the basis of the disclosure statement of JCL. If accused was not present at the spot on the date and time of incident, he has failed to mention his presence at other place. Defence of the accused is of no value in the eyes of law.
26. Qua contention of the ld. counsel regarding improvements and contradictions, is not tenable in the eyes of law. It is well settled law that in the catena of judgment from time to time various High Courts and even Apex Court observed that 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 occur in the statements if truthful witnesses as memory sometimes fade 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 witnesses and 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. There is bound to be some discrepancies between the narrations of SC No. 84/17 State Vs. Harender Nagar Page No.: 16 of 18 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.
27. In the present matter, ld. defence counsel failed to mention any material contradiction and only stated that car is not in the name of the complainant. These are of no help to the accused. Issue in question is not that car is registered in whose name, rather issue in question is that whether crime in question was committed by accused or not? Complainant has clearly identified the accused as responsible for the crime committed upon her.
28. With these observations, court is of the view that prosecution has failed to bring home the guilt of the accused for the offence punishable under Sec. 394 IPC and 398 IPC and as such, accused Harender Nagar S/o Sh. Rakesh is acquitted for the offence punishable under Sec. 394/398 IPC charged against him.
29. Section 385 IPC deals with as:
Putting person in fear of injury in order to commit extortion - Whoever, in order to the committing of extortion, put any person in fear, or any injury, shall be SC No. 84/17 State Vs. Harender Nagar Page No.: 17 of 18 punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
30. As such, in view of the above, it stands established that prosecution has proved its case beyond all reasonable doubts that it was accused Harender who committed the offence which falls within the ambi of Sec. 385 IPC. As such, said accused namely Harender Nagar Singh S/o Sh. Rakesh is held guilty for the offence punishable under Section 385 IPC.
31. Sum up of the above discussion is that accused Harender Nagar S/o Sh. Rakesh is acquitted for the offence punishable under Sec. 394/398 IPC charged against him. However, said accused namely Harender Nagar Singh S/o Sh. Rakesh is held guilty for the offence punishable under Section 385 IPC and convicted accordingly.
Digitally signed by SATINDER
SATINDER
Announced in the open Court
KUMAR GAUTAM
KUMAR GAUTAM Date: 2019.05.03 16:55:26
+0530
Dated : 03.05. 2019
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
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