Delhi District Court
Fir No. 619/2016, Ps : Ndrs State vs . Sarvan on 2 November, 2019
FIR No. 619/2016, PS : NDRS State Vs. Sarvan
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs Sarvan
FIR No. 619/2016
PS : NDRS
U/s 392/186/353/332/34 IPC
Date of Institution : 23.07.2016
Date of reserving of order : 22.10.2019
Date of Judgment : 02.11.2019
CNR No. DLCT020130272016
JUDGMENT
1. Serial No. of the case : 304671/2016
2. Name of the Complainant : Raja Ram Rai
3. Date of incident : 28.05.2016
4. Name of accused person :
Sarvan S/o Shri Gote Lal R/o Village
Chapda, PS Maheshkhut, District
Khagaria, Bihar.
5. Offence for which chargesheet
was filed :S. 392/186/353/
332/34 IPC & 27 Arms
Act.
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FIR No. 619/2016, PS : NDRS State Vs. Sarvan
6. Offence for which charge
has been framed : S. 392/186/353/
332/34 IPC & 27 Arms
Act.
7. Plea of accused : Not guilty
8. Final Order : Convicted
9. Date of Judgment : 02.11.2019
BRIEF REASONS FOR ORDER:
1. Mr. Sarvan, the accused herein, has been chargesheeted for committing offences punishable under Section 392/186/353/332/34, the Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC") and Section 27 the Arms Act.
2. The case of the prosecution is that on 28.05.2016 complainant Raja Ram Rai had reached at New Delhi Railway Station alongwith his wife in Mahabodhi Express Train. They deboarded the train at platform no.5. At about 5:45 a.m., after loading his luggage on a rehri, when he was going towards Ajmeri Gate Side alongwith his wife and the rehri pusher, the accused had come there from their back side. He had snatched the gold chain from the neck of his wife and ran Page 2 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan away. His wife started shouting. The complainant started chasing the accused. The accused had thrown the chain which was taken by his associate who was successful in running away with the chain. However, the accused was apprehended by Constable Rajiv Yadav, RPF. The accused had stabbed Constable Rajiv Yadav on his hand with a knife. Thereafter he was taken to the PS GRP NDRS. On the basis of complaint, present FIR had been registered. Efforts were made to trace the associate of the accused. However, he could not be traced. After investigation, the IO filed a Final Report under Section 173, Cr.P.C. and the accused was chargesheeted for the offences punishable under Sections 392/186/353/332/34, the IPC and Section 27 of the Arms Act.
3. After perusing the record, cognizance was taken by the Court. Accused was produced in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offences punishale under Section 392/186/353/332/34 IPC and Section 27 of Arms Act was framed to which the accused pleaded not guilty and claimed trial.
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4. The prosecution has examined as many as 05 witnesses to prove its case against the accused.
5. PW1 Sh. Raja Ram Rai is the complainant. He has deposed that on 28.05.2016, he was coming from Sasaram to New Delhi Railway Station alongwith his wife Urmila Devi by train Mahabodhi Express. When he reached at New Delhi Railway Station, he unloaded his luggage from the train and hired one rehra (Thela) for carrying his luggage outside the railway station for taking private vehicle. They were carrying his luggage by rehra when the accused had come from back side of his wife and snatched her gold chain and he tried to run away. His wife started shouting. Due to that he turned back and tried to chase the snatcher. In the meantime, one RPF constable who was also present at the Railway Station came there and tried to catch the snatcher. Thereafter, he apprehended the snatcher. In the meanwhile, the accused thrown the chain and one of his associate carried away the gold chain and ran away from the spot. The accused had stabbed a knife in the hand of the said RPF official. Thereafter, he and Ct. Rajiv Yadav took the accused to the police station. Police official recorded his statement, which Page 4 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan is Ex. PW1/A. The IO prepared the site plan at his instance, which is Ex. PW1/B. The IO prepared the sketch of the knife recovered from the possession of the accused, which is Ex. PW1/C and seized the knife vide memo Ex. PW1/D. The IO conducted personal search of the accused vide memo Ex.PW1/E. Thereafter, IO arrested the accused vide memo Ex. PW1/F.
6. The witness identified the said knife in the Court. The knife is Ex.P1. He also identified the accused.
7. PW2 Ct. Megh Singh is the police official who had participated in the investigation with the IO. He has deposed that on 28.05.2016, one RPF official namely Mr. Rajeev alongwith the complainant Raja Ram and his wife came at the PS with accused Sarwan. The RPF personnel had a knife injury on his right hand. He told that accused Sarwan had inflicted the said injury to him when he had apprehended the accused. Thereafter, RPF official went to the hospital for his medical treatment. Accused Sarwan told IO SI Ashok that he had snatched a chain from a passenger and had handed over the chain to his co associate. Thereafter, he alognwith SI Ashok, complainant and his wife took accused Sarwan to the place of incident Page 5 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan and had searched his coassociate. However, he was not traced anywhere. Thereafter, IO SI Ashok recorded the statement of complainant Raja Ram and prepared a Tehrir and had sent complainant Raja Ram to PS for registration of FIR. They again tried to search his coassociate till 12 noon. However, he could not be traced. IO prepared the arrest memo which is Ex. PW1/F. The accused was personally searched after his arrest and memo was prepared which is Ex. PW1/E. IO seized the knife from the possession of accused vide memo Ex.PW1/D. IO recorded the disclosure statement of the accused which is Ex. PW2/A. IO had prepared the pointing out memo of the place of incident which is Ex. PW2/B. Thereafter, he alongwith the IO and the accused returned at the PS.
8. PW3 ASI Hari Om was the Duty Officer who had registered the FIR no 619/2016, PS NDRS. He has proved the copy of the FIR which is Ex. PW3/A, the certificate under Section 65 B of Indian Evidence Act which is Ex.PW3/B and the endorsement on the rukka which is Ex.PW3/C.
9. PW4 Ct. Rajiv is the RPF Official and victim. He produced the record of his duty vide DD No.82 dated Page 6 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan 27.05.2016. He produced the roznamcha register of the said period which is Ex. PW4/A (OSR).
10. PW4 was recalled for his examination under Section 311 Cr. P.C. He has deposed that on 28.05.2016, he was on duty at platform no.1 to 5, Nizamuddin Side, NDRS. He had seen that the accused was running at the end of platform no. 2 /3 and the complainant was chasing him. He apprehended the accused. The accused tried to flee away from his custody and had inflicted knife injury on his hand. The complainant who was chasing also came there alongwith his wife. The wife of the complainant told him that the accused had snatched the gold chain from her neck. He informed the sector incharge about the incident on his phone. He took the accused at GRP, NDRS alongwith the complainant and his wife. He left the accused in the custody of DO/HC Hari Om. Thereafter he alongwith RPF official ASI Jaswant Singh went to Railway hospital for treatment. Thereafter, they returned to GRP, NDRS, Delhi. IO ASI recorded his statement. He also put his signatures on the arrest memo which is Ex.PW1/F, seizure memo of knife which is Ex. PW1/D, the pointing out memo is Ex. PW2/B and some other documents as a Page 7 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan witness.
11. Ld. APP had put a leading question to the witness. The witness stated that he had handed over the knife and custody of the accused to the DO at the PS.
12. PW5 Retd. SI Ashok Kumar is the IO of the case. He has deposed that on 28.05.2016, complainant Raja Ram Rai and his wife Smt. Urmila had come at the PS alongwith Ct. Rajiv, RPF. They had produced accused Sarwan before him. He was informed that the accused had snatched the chain of Smt. Urmila from her neck. He had given the chain to his associate who had run away from the spot. However, the accused was apprehended after chasing him. It was also informed that when he was apprehended by Ct. Rajiv, the accused had caused an injury on his hand by using a knife. During search of the accused, the accused was holding the said knife in his hand. He had taken the said knife and prepared a rough sketch by keeping the same on white paper which is Ex. PW1/C. He had kept the knife in a white cloth pullanda and sealed the same with the seal of "AK". The pullanda was seized vide memo Ex. PW1/D. He recorded statement of complainant Raja Ram which is Ex. PW1/A. He made Page 8 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan endorsement on the tehrir and handed over to the DO for registration of FIR. The tehrir is Ex. PW5/A. Ct. Rajiv was sent to hospital for medical examination. His MLC was prepared at Railway Hospital. The accused was left in the custody of Ct. Megh Singh. He alongwith the complainant reached at the spot and prepared the site plan which is Ex. PW1/B. He had made inquiry from the accused and after satisfaction, he arrested him vide memo Ex. PW1/F. He conducted personal search of the accused vide memo Ex. PW1/E. He recorded his disclosure statement which is Ex. PW2/A. Pointing out memo was prepared at the instance of the accused which is Ex. PW2/B. He had made efforts to trace the associate of the accused named Sonu as disclosed by the accused. However, he could not be traced. The case property was deposited in Malkhana. The accused was taken to hospital for medical examination. After medical examination, he was produced in the Court. He had recorded the statement of the witnesses. He had given the application to the RPF Officials to obtain a complaint under Section 195 Cr.P.C. He had prepared the challan and filed in the Court.
13. All the witnesses were crossexamined. The Page 9 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan accused admitted the MLC no. 63/16 of Rajeev Yadav which is Ex.A1.
14. The prosecution evidence was closed. Accused was examined under Section 313 Cr. P.C., r/w Section 281 Cr. P.C. The accused denied the incriminating evidence. He would state that the police officials had called him from his house and they had had said that they had some work from him. There were some cases against him previously. They kept him waiting at the PS. Thereafter, they started beating him. He was locked up. In the evening his wife had come at the PS. He was not told as to why he was locked up and his wife was also asked to leave the PS. In the morning they had taken his thumb impression on blank papers. He was produced in the Court.
15. The accused did not lead defence evidence. Therefore, matter was fixed for final arguments.
16. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused was involved in the incident. It has also been proved that he had voluntarily caused hurt to Ct. Rajiv Yadav, a public servant. It has also been proved that he had stolen the chain of the wife of the Page 10 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan complainant and that he had caused hurt to Constable Rajiv Yadav while carrying away the stolen property. The knife used by the accused falls within the definition of arm defined under the Arms Act, 1959. Hence, the prosecution has proved all the ingredients of the offences and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
17. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. It has been argued that there is no complaint made by Ct. Rajiv Yadav or his Superior Officer under Section 195 Cr.P.C. Therefore the accused can not be convicted for the offence punishable under Section 186 IPC. It has been argued that the duty of Constable Rajiv Yadav on the spot on the relevant date and time has also not been proved by leading any evidence. His presence on the spot also comes under the clouds of reasonable doubts. It has also been argued that in the MLC of Ct. Rajiv Yadav there is only abrasion on the right hand and such an injury can not be caused by a knife and therefore story of the prosecution should not be believed. Ct. Rajiv Yadav might have Page 11 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan sustained injury at some other place and he had falsely implicated the accused. Further, witness PW2 has also stated that there was injury on the right hand of Ct. Rajiv Yadav. However, as per MLC the injury was on left hand of Ct. Rajiv Yadav. PW1 admittedly did not see the act of snatching of chain. He has stated that on hearing the shouting of her wife only he had chased the accused. Hence, his statement should not be believed regarding snatching of chain by the accused. Smt. Urimila wife of the complainant has not been cited as witness by the prosecution and therefore she has not been examined by the prosecution. There is no injury shown to Smt. Urimila. Therefore, ingredients of offence punishable under Section 392 IPC are also not made out. It has been argued that PW5 has stated in his testimony that accused was holding a knife in his hand when he was produced before him by complainant and Constable Rajiv Yadav. However, Ct. Rajiv Yadav in his testimony has stated that he had handed over the knife to the Duty Officer. This is also a material contradiction. The handkerchief of Ct. Rajiv Yadav was also not seized by the IO which was having blood stains due to injury caused to him. The injury itself has not been Page 12 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan proved by the prosecution. The alleged incident had taken place at about 5:45 a.m., however, the arrest of the accused is shown to be made at 10 p.m. This also creates doubts on the testimony of the witnesses. Delay in the arrest of the accused also creates reasonable doubt on the testimonies of the witnesses. Further witness Raja Ram has stated that he had taken the rukka from the Railway Station and got the FIR registered. However the IO has stated in his testimony that he had prepared the rukka and handed over to the Duty Officer who get the FIR registered. This is also a material contradiction which creates reasonable doubts. Hence, it is prayed, the accused may be given benefit of reasonable doubts and he may be acquitted.
18. I have heard the rival submissions and carefully perused the material available on record.
19. In a criminal case the initial burden is on the prosecution to prove the guilt of the accused beyond reasonable doubts before the accused is asked to prove his defence. It is also settled position of law that in case of possibility of two versions of a case, the version which Page 13 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan favours innocence of accused is to be accepted by the Court.
20. In the present case, the accused has been charged for offences punishable under Section 392,186,332, 353 r/w Section 34 IPC and Section 27 of Arms Act.
21. First, I shall take the charge of offence punishable under Section 392/34 IPC. Section 392 IPC provides punishment for robbery. Section 390 defines robbery. The Section reads as under :
" Robbery In all robbery there is either theft or extortion. When theft is robbery Theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or or instant wrongful restraint. When extortion is robbery Extortion is 'robbery' if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the Page 14 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan person so put in fear then and there to deliver up the thing extorted".
22. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as it were done by him alone.
23. In the present case, the prosecution has alleged that the accused alongwith his associate (not arrested), in furtherance of their common intention, had committed robbery of the chain of the wife of the complainant. While carrying away the said stolen property, the accused had voluntarily caused hurt to Constable Rajiv Yadav.
24. PW1 Raja Ram Rai has stated in his testimony that the accused had snatched the gold chain of his wife and he tried to run away. His wife had started shouting. Thereafter he had chased the accused. The accused was apprehended by one RPF Constable Rajiv Yadav. However, the accused had thrown the chain and one of his associate had carried away the gold chain and ran away from the spot.
25. Nothing contradictory has come in the cross examination of PW1 so as to doubt his testimony.
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26. Ld. defence counsel would argue that victim Urmila, the wife of the complainant Raja Ram Rai has not been examined by the prosecution to prove the factum of snatching of the chain from her neck. PW1 had not seen the accused snatching the chain from the neck of her wife. Therefore, his testimony may not be believed and benefit of doubts may be given to the accused.
27. I have considered the submissions. No doubt, PW1 has not stated that he had seen the accused snatching the chain of his wife from her neck. However, his testimony is relevant to prove the facts, interalia, that immediately after the chain of his wife was stolen, he had heard the shouting of his wife and that he had seen the accused running on the platform. His testimony is also relevant and it has proved beyond reasonable doubts that he had seen the accused throwing the chain and that one another person had picked the chain and ran away from the spot. The conduct of the accused of running on the platform immediately after the theft of the chain of the wife of the complainant is also noteworthy. Similarly, the conduct of the accused that he had thrown the gold chain when he was chased by the complainant is also sufficient Page 16 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan to prove that the accused had snatched the chain of the wife of the complainant and that he was trying to run away from the spot. The facts narrated by the PW1 are also able to prove beyond reasonable doubts that the accused had taken away the chain of the wife of the complainant without her consent. Thus all the ingredients of the offence of theft have been proved by the prosecution beyond reasonable doubts.
28. Section 134, Indian Evidence Act, provides that no particular number of witnesses shall in any case be required for the proof of any fact. The Hon'ble High Court of Delhi in Raja Vs. State (1997) 2 Crimes 175 (Delhi) has observed that reliance can be based on a solitary statement of the witness if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. It has been held that the Courts are concerned with the merits of the statement of a particulars witness and not with the number of witnesses examined by the prosecution. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
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29. In the present case also, the testimony of PW1 alone is sufficient to prove beyond reasonable doubts that the accused had stolen the chain of the wife of the complainant. Only because wife of the complainant was not made a witness in the present case, the testimony of PW1 can not be discarded.
30. Witness PW4 Ct. Rajiv has also deposed in his testimony that he had seen the accused running on the platform and he had apprehended the accused. The accused had tried to flee away from his custody and had inflicted knife injury on his hand.
31. The testimony of PW4 Ct. Rajiv Yadav corroborates the testimony of PW1. He has corroborated the fact that the complainant had been chasing the accused. It has also been proved that the accused had caused injury on the hand of Ct. Rajiv Yadav when he had apprehended him. The MLC of the Constable is on record as Ex. A1. In the said MLC the injury is stated to be caused to Constable Rajiv while catching a thief.
32. Ld. Defence counsel would argue that the testimony of Constable Rajiv Yadav may not be believed as Page 18 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan he is an interested witness. The duty of constable Rajiv Yadav on the spot is under doubts. The injury mentioned in the MLC can not be caused by a knife. In the MLC Ex. A 1, it is mentioned that there were two/three abrasions only. Such injuries can not be caused by a knife as produced in evidence. Therefore, Constable Rajiv had concocted a story of injury by knife. Further, it is argued, PW2 has stated in his testimony that Constable Rajiv had suffered injuries on his right hand. However in the MLC the injury is shown to be on the right hand of the patient. Therefore, the story of injury is shown to be a false one. Further, PW4 Constable Rajiv has stated in his examination in chief that he had handed over the knife to the DO at PS. However, PW5 the IO has stated in his examination in chief that he had recovered the knife from the hands of the accused during his search. All these facts are able to create reasonable doubts on the case of the prosecution.
33. I have considered the submissions. Perusal of the record would show that the fact that Constable Rajiv was on duty on the relevant date has been proved by PW4 by producing the original roznamacha register of the Page 19 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan relevant period of the spot. The copy of the relevant DD entry has been proved by producing the said record. The copy of DD entry is Ex. PW4/A (OSR). I do not find any reason not to believe this document Ex. PW4/A. It is mentioned in the document that the duty of Constable Rajiv Yadav was platform no.1 to 5. Once it is shown, by producing the original roznamcha register, that Ct. Rajiv was on duty on the relevant date and time, it is not required to call the writer of the entry in the roznamcha. The entry had been made in an official record in the ordinary course of business. No doubt on the document was raised by the defence when it was exhibited in the evidence by PW4. Therefore document Ex. PW4/A has been duly proved. Hence it also stands proved beyond reasonable doubts that Ct. Rajiv Yadav was on duty on relevant date, time and place.
34. Further, the argument of Ld. Defence counsel that it was not possible to cause, by knife, an injury of the nature mentioned in the MLC, is not substantiated by any material. It is mentioned in the MLC Ex. A1 that there was abrasion of 2 cm X 3 cm with minimal blood oozing seen. Thus, it is shown that the blood was oozing out from the Page 20 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan abrasion on the hand of Ct. Rajiv Yadav. There is no evidence produced by the accused to prove that such an injury can not be caused by any knife. In these circumstances, I do not find any reason to disbelieve the testimony of the witnesses and the MLC of Ct. Rajiv Yadav.
35. No doubt, there are some contradictions in the testimony of the witnesses. However, they are minor in nature. The first contradiction is in relation to the injury on the hand of Constable Rajiv. PW2 has stated that Constable Rajiv had an injury on his right hand while in the MLC the injury is shown to be on his left hand. Similarly PW4 has stated in his testimony that he had handed over the knife to the DO alongwith the custody of the accused. However, PW5 Retd. SI Ashok Kumar has stated that he had seized the knife from the hands of the accused. Similarly PW2 has stated in his testimony that he had taken the rukka from the spot to the PS and got the FIR registered. However, PW5 has stated that he had prepared the rukka at the PS and handed over to the DO for registration of FIR. However, none of these contradictions are material in nature. They do not affect the merits of the case. Minor contradictions are bound to Page 21 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan appear in the testimonies of different witnesses. The incident is related to year 2016 while the witnesses have been examined in the year 2019. There is a gap of three years from the date of incident to the date of examination of the witnesses in the Court. It is possible that the witnesses might have forgotten the correct sequence of certain facts. However, the contradictions recorded herein above are not material in nature. Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, has observed as under : "19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to Page 22 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at Page 23 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".
36. Ld. defence counsel would also argue that the handkerchief which was used by Ct. Rajiv Yadav to cover the wound on his hand was not seized by the IO and therefore benefit of doubts may be given to the accused. Ld. Counsel has also stated that there is delay in arrest of the accused which also creates doubts on the case of the prosecution.
37. I have considered the submissions. However, I do not find merit in it. Only because the handkerchief was not seized by the IO is not a fact relevant to decide whether Constable Rajiv Yadav had suffered any injury or not. It was not a material piece of evidence to decide the present case. It does not, in any way, affect the testimony of PW1 and PW4. Hon'ble High Court of Delhi in Angrej Singh & Ors. vs State, CRL.A.46/2005, decided on 21.10.2013 has held as under :
Page 24 of 36 MM08 (C)/THC/Delhi/02.11.2019FIR No. 619/2016, PS : NDRS State Vs. Sarvan "The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also defective investigation by itself cannot be made a ground for acquitting the accused................"
38. The accused during his examination under Section 313 Cr.P.C., has stated that he had not committed any offence. He has stated that he was caused by the police officials from his home and thereafter he was falsely implicated. The accused has not led any evidence to prove his defence. It is settled position of law that statements made during examination under Section 313 Cr. PC are not evidence. They have not been made on oath. They have not been tested on the touchstone of cross examination. Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, Page 25 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
39. In the present case also, for the aforesaid reason, the statement made by the accused during his examination under Section 313 Cr.P.C., can not be considered evidence. Those statements have not been made on oath. No opportunity was given to the opposite party to check the veracity of those statements by way of crossexamination. On the other hand, there are testimonies of two eye witnesses on record which have been made on oath. The law is settled that testimony of an eyewitness and an injured should be believed unless there is specific reason on record to disbelieve him. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene Page 26 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
40. In the present case also, I do not find any reason to disbelieve the testimonies of complainant Raja Ram Rai and Ct. Rajiv Yadav.
41. In the light of the discussion hereinabove, I hold that the prosecution has proved beyond reasonable doubts that the accused had committed theft of chain of wife of the complainant. It has also been proved that he had caused injuries to Constable Rajiv Yadav when he was apprehended by him.
42. Now, the question comes whether the accused had committed robbery as defined under Section 390 IPC.
43. Ld. defence counsel would argue that victim Urmila had not sustained any injuries. There is no evidence on record to that effect. Therefore, it is argued, the accused may not be convicted for offence of robbery.
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44. I have considered the submissions. It is settled position of law that to prove an offence of robbery it is not required to prove that the injury should be suffered by the person whose property was stolen. Essential ingredients of the offence of Robbery are as follows:
"i) Offendr committed theft as defined in Section 378 "ii) Offender caused or attempted to cause to any person:
"a. fear of death, or hurt or wrongful restraint, "b. fear of instant death, or of instant hurt or of instant wrongful restrain "iii) Offender did such act either "a. in order to the committing of the theft "b. while committing the theft "c. in carrying away or attempting to carry away the property." (emphasis supplied)
45. In Braham Singh vs State (NCT of Delhi), Crl. A. no. 28/2008, decided on 23/11/2009, has discussed the distinction between theft and robbery. It has held as under:
"14. The line of distinction between "robbery" as defined under Section 390 of the IPC and "theft" as defined in Section 378 of the IPC is thin but nevertheless distinct. Theft becomes robbery if in the process of committing the theft the offender causes Page 28 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan or attempts to cause either death or hurt or a wrongful restraint....
"15. Section 390 of the IPC in fact contemplates that the accused should have from the very start the intention to deprive the complainant of the property and should for that purpose either hurt him or place him under wrongful restraint. Where A and B were stealing mangoes from a tree, C surprised them, on which A knocked him down senseless with a stick; where a person, in snatching a nosering, wounded the woman in the nostril and caused her blood to flow, this offence was committed. Where the accused slapped the victim after dispossessing him of his watch in order to silence him an offence under Section 390 was made out. These are instances of robbery for which the accused stood convicted. See Husrut Sheikh (1866) 5 WR (Cr) 85, Teekai Bheer (1866) 5 WR (Cr) 95 and Harish Chandra AIR 1976 SC 1430."
46. Thus, if the hurt is voluntarily caused by the offender to any person in order to committing of theft, or in committing the theft or in carrying away or attempting to carry away the property obtained by theft, such offender is stated to have committed robbery. In the present case also, the testimonies of PW1 Raja Ram Rai and PW4 Ct. Rajiv Yadav have proved beyond reasonable doubts that the accused had caused injury to Constable Rajiv Yadav Page 29 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan when Rajiv Yadav had tried to stop the accused from carrying away the stolen property. It becomes clear from the material on record that the accused had an intention to cause injury to Ct. Rajiv Yadav so that he would be able to run away with the stolen property. There is no other plausible explanation for causing injury to Rajiv Yadav. Thus it has been proved by the prosecution beyond reasonable doubts that the accused had voluntarily caused hurt to Constable Rajiv Yadav in carrying away or attempting to carry away the stolen property. The MLC Ex. A1 of Constable Rajiv Yadav has been duly proved. Hence, I hold that the prosecution has proved all the ingredients of offence punishable under Section 392 IPC against the accused beyond reasonable doubts. However, there remains a doubt whether the person who had taken away the chain had shared common intention with the accused to commit the offence or not.
47. Now, I come to the charge related to the offences punishable under Section 186/353/332 IPC.
48. Section 186, IPC provides punishment for voluntarily obstructing any public servant in the discharge of his public functions. Section 195 Cr.P.C bars cognizance Page 30 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan of an offence punishable, inter alia, under Section 186 IPC except or a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
49. In the present case, no separate complaint under Section 195 Cr.P.C, has been made by Ct.Rajiv Yadav or by any of his Sr. Officer. In these circumstances, the accused can not be tried for an offence punishable under Section 186 IPC. The accused is therefore acquitted qua offence punishable under Section 186 IPC.
50. A complaint under Section 195, Cr.P.C., is not required for prosecution of offence under Section 332 & 353 IPC. Section 353, IPC, provides punishment for assaulting or using criminal force to any person being a public servant in execution of his duty as such public servant, or with intent to prevent or deter such public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant. Section 332 IPC provides punishment for voluntarily causing hurt to any person being a public servant in the discharge of his duty as such public servant, Page 31 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan or with intent to prevent or deter that person or any other public service from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant. To establish an offence under Section 332, IPC, the prosecution must prove that:
1. the accused had voluntarily caused hurt to a public servant;
2. the said public servant, at the time of being hurt, was discharging his duty as such public servant, or,
3. the hurt was caused with intent to prevent or deter that public servant or any other public servant from discharging his duty as such public servant, or
4. the hurt was caused in consequence of anything done, or attempted to be done, by that public servant in the lawful discharge of his duty as such public servant.
51. In the present case, as discussed hereinabove, it has been proved beyond reasonable doubts that Ct. Rajiv Page 32 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan Yadav is a public servant. It has also been proved beyond reasonable doubts that he was discharging his official duty as such public servant when the accused had caused injury to him. Hence, it stands proved beyond reasonable doubts that the accused had voluntarily caused hurt to Constable Rajiv Yadav being a public servant in discharge of his duty as such public servant. All the ingredients of offence punishable under Section 332 IPC have been proved by the prosecution against the accused beyond reasonable doubts.
52. The ingredients of offence punishable under Section 353 IPC are similar to offence punishable under Section 332 IPC. The only material difference in two offences is that while hurt must be caused to a public servant to fulfill the ingredients of offence punishable under Section 332 IPC, only use of assault or criminal force to a public servant is sufficient to fulfill the ingredients of offence punishable under Section 353 IPC.
Thus, offence punishable under Section 353 IPC is a minor offence while offence punishable under Section 332 IPC is a major offence. Once the accused is found guilty of the major offence punishable under Section 332 IPC, he is not Page 33 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan required to be convicted for offence punishable under Section 353 IPC.
53. Now, I come to the charge for the offence punishable under Section 27 of the Arms Act. The Section provides punishment, interalia, for using any arms or ammunitions in contravention of Section 5 or using any prohibited arms or prohibited ammunitions in contravention of Section 7 of the Arms Act. Section 5 of the Act prohibits, interalia, use of any fire arms or any other arms of such class or description as may be prescribed. Section 2 (c) defines "arms" means, interalia, articles of any description designed or adapted as weapons of offence or defence and includes sharp edged and other deadly weapons. However, it does not include articles designed solely for domestic or agricultural use.
54. In the present case, the knife was produced in the Court. The knife is similar to the sketch of the knife available in the judicial record which is Ex.PW1/C. The knife produced in the Court which is Ex.P1 is certainly not an article designed solely for domestic or agricultural use. The knife is, without any doubt, is designed as weapon of Page 34 of 36 MM08 (C)/THC/Delhi/02.11.2019 FIR No. 619/2016, PS : NDRS State Vs. Sarvan offence or defence. It is sharp edged weapon. It therefore false category of arms as defined under the Act. It has been proved beyond reasonable doubts that the accused had used the said arm/knife in contravention of Section 5. He is therefore found guilty of offence punishable under Section 27 (1), the Arms Act, 1959.
55. In the light of the discussions hereinabove, this Court holds that the prosecution has proved beyond reasonable doubts that the accused had committed offence of robbery by committing theft of the chain of the wife of the complainant and by causing hurt to Constable Rajiv Yadav while attempting to carry away the stolen property. Thus, all the ingredients of the offence punishable under Section 392 IPC have been proved by the prosecution beyond reasonable doubts. The prosecution has also proved all the ingredients of offence punishable under Section 332 IPC and Section 27 (1), the Arms Act. The accused is found guilty and he is accordingly convicted for offences punishable under Section 392 and 332 IPC and Section 27 (1) Arms Act. He is however acquitted of the offences punishable under Section 186 and 353 IPC.
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56. Let the parties be heard on the quantum of sentence.
57. Copy of the judgment be given free of cost to the convict. Digitally signed by DINESH DINESH KUMAR KUMAR Date:
2019.11.02 16:19:00 +0530 Pronounced in the open Court on (Dinesh Kumar) this 02nd Day of November 2019. MM08 (Central) Tis Hazari Courts, Delhi.Page 36 of 36 MM08 (C)/THC/Delhi/02.11.2019