Delhi District Court
State vs . on 28 August, 2018
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
DISTRICT & SESSIONS JUDGE, NORTH WEST DISTRICT,
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 493/17
FIR No. : 444/17
P.S. : Vijay Vihar
U/s : 395/411 IPC
Date of registration : 08082017
Reserved for Judgment on: 14082018
Judgment Announced on : 28082018
State
Vs.
Kuldeep S/o Satpal
R/o H. No. R1/23,
Lal Quarter, Vijay Vihar,
PhaseI, Delhi.
JUDGMENT
1.Briefly stated the present case was registered on the basis of the statement of complainant Sh. Raghav Mishra S/o Sh. Mishri Lal Mishra who was employed with Tele one Company and had his duty hours from 5:00 p.m to 2:00 a.m. On 03042017, after his duty hours, complainant alongwith his friend Neeraj Sharma who is his office colleague at about 2:30 a.m. reached at Krishna Dairy, 20 Foota Road, Vijay Vihar on the bike of Neeraj Sharma where Neeraj dropped him.
2. When the complainant proceeded towards his house on Sessions Case No: 493/17 Page 1 of 26 2 foot, 23 boys came running from behind, out of them one boy caught hold of his bag by showing knife and asked him to stand quietly and also threatened him with knife. The complainant got afraid and stood calmly as was asked by the knife welding man.
3. According to the complainant, the boy who showed him knife was aged around 20/21 years, thinly built, height 5' 6", complexion fair, having long hair and he was wearing a red and yellow colour shirt. According to the complainant, the second boy whose height was 5' 4", dark complexion, thinly built, took out the mobile phone of the complainant from the pocket of his pant. The make of the mobile phone was OPPOFISA 1601, white & golden colour having IMEI No. (1) 863084032327611 & IMEI No. 863084032327603. The third boy took out the black colour purse of the complainant from the pocket of his pant which was contained his Adhar Card No. 354042164067, ICard of the school of open learning, Delhi University, some visiting cards, papers and Rs. 506/.
4. According to the complainant, he raised an alarm, hearing which, his brother Ashutosh also reached the spot and all the three boys ran away from there. According to the complainant, he chased them for some distance and with the help of his brother he apprehended one of those boys and from his possession his purse was got recovered. On inquiry the name of the said boy Sessions Case No: 493/17 Page 2 of 26 3 was revealed as Kuldeep S/o Satpal R/o R1/23, Red Quarter, Vijay Vihar, PhaseI, Delhi. According to the complainant, he made a call at No. 100, police arrived at the spot and he handed over accused Kuldeep to the police with the purse.
5. F.I.R. bearing No. 444/17, was registered at P.S. Vijay Vihar and investigation went underway. During the course of investigation accused was arrested. After the completion of investigation final report u/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
6. On 29082017, a charge U/s 395/411 IPC, was framed against accused to which he pleaded not guilty and claimed trial.
7. In order to prove the guilt of the accused, the prosecution examined as many as 7 witnesses.
8. PW 1 Raghav Mishra (complainant), PW 3 Ashutosh (brother of the complainant) and PW 4 Neeraj Sharma are the material public witnesses. I will discuss their testimonies in the later part of the judgment.
9. PW 2 H.C. Ravinder Kumar is the duty officer. He proved on record copy of DD No. 8 A regarding receiving of information about the present incident as Ex. PW 2/A, endorsement made by him on the rukka regarding registration of the FIR as Ex. PW 2/B, copy of the FIR as Ex. PW 2/C and certificate U/s 65 B of the Sessions Case No: 493/17 Page 3 of 26 4 Indian Evidence Act as Ex. PW 2/D.
10. PW 5 Dr. Rajiv Ranjan is the HOD, Department of Radiology, Dr. B.S.A. Hospital, Rohini, Delhi. He deposed that on 25042017, patient Kuldeep S/o Sh. Satpal was brought in the hospital for his bone age examination for assessment of his age. He further deposed that the accused was examined physically, dentally and radiologically and the age assessment of the patient was more than 18 years and less than 20 years at the time of examination. He proved on record report of assessment of age of accused Kuldeep as Ex. PW 5/A and Xray report of Kuldeep as Ex. PW 5/B. PW 5 further deposed that he countersigned the bone age Xray report and his countersign is at point B on the reverse side of Ex. PW 5/B. He also deposed that he represented the board as Chairman. He identified the signatures of board members at point B, C, D and E respectively on Ex. PW 5/A.
11. PW 6 is Ct. Suresh who on 02042017, in the intervening night of 0203 April 2017 was on emergency duty from 8 pm to 8 am in police station Vijay Vihar. On that day on the receipt of DD No. 4 A, PW 6 alongwith SI Vats Raj reached at the spot i.e. near Krishna Dairy, F Block, Vijay Vihar, PhaseII where complainant Reghav Mishra met them and accused Kuldeep was over powered by the complainant. PW 6 further Sessions Case No: 493/17 Page 4 of 26 5 deposed that purse which was recovered from the possession of accused belonging to the complainant containing Icard, Adhar Card, photographs, some visiting cards and Rs. 506/ was handed over by the complainant to SI Vats Raj (IO) who kept the purse in a pullanda and sealed the same with the seal of SR and taken into possession vide seizure memo already Ex. PW 1/C.
12. In the presence of PW 6, IO recorded the statement of complainant Ex. PW 1/A, made his endorsement on the same, prepared the rukka and handed over the same to PW 6 for registration of FIR who took the same to the police station and got the present case registered. After the registration of the case PW 6 came back at the spot and handed over original rukka and copy of FIR to IO.
13. PW 6 further deposed that accused was arrested vide memo Ex. PW 1/D and his personal search was conducted vide memo Ex. PW 1/E and he also made his disclosure statement which PW 6 proved as Ex. PW 6/A. PW 6 deposed that he took the accused to Dr. B.S.A Hospital for his medical examination.
14. PW 7 ASI Vats Raj Singh is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record endorsement made by him on the statement of the complainant as Ex. PW 7/A. He identified the accused and the case property.
Sessions Case No: 493/17 Page 5 of 26 615. After the closing of the prosecution evidence statement of accused U/s 313 Cr.P.C. was recorded and all the incriminating evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated in the present case. He further stated that actual culprit had fled away from the spot and incidentally he was passing from the spot and due to misconception he was overpowered and the purse of the complainant was lying at the spot. He further stated that he used to work in Jagran etc. and used to be free from work in the late night and on the day of the incident also, he was coming from his work at Jhandewalan Mandir. At that time there was no bus service, so he was walking towards his house.
16. I have heard Ms. Usha Rani, Ld. Legal Aid Counsel for the accused, and Ld. Addl. PP for the state and have also gone through the records of this case.
17. It is urged by the Ld. Legal Aid Counsel for the accused that the accused is innocent and he has been falsely implicated in the present case. She further stated that no public person was joined by the IO during investigation. She further stated that nothing has been recovered from the possession of the accused and the recovered purse of the complainant had been planted upon the accused. She further urged that there are material contradictions in the testimonies of the public and police Sessions Case No: 493/17 Page 6 of 26 7 witnesses which go to the root of the case and accused cannot be convicted on the basis of their testimonies.
18. On the other hand, it is submitted by the Ld. Addl. PP for the state that on the basis of the evidence recorded and the material available on record, the prosecution has been able to prove its case against the accused. He further submitted that accused was apprehended at the spot by the complainant with the help of his brother and robbed purse of the complainant was recovered from the accused. He further submitted that PW 1 (complainant) and PW 3 Ashutosh who is the brother of the complainant have fully supported the case of the prosecution on all material aspects of the case and accused can be safely convicted on the basis of their testimonies. He further urged that the contradictions appearing in the testimonies of the prosecution witnesses are immaterial and minor contradictions which do not effect the credibility and reliability of the prosecution witnesses.
19. In the instant case, PW 1 Raghav Mishra (complainant), PW 3 Ashutosh (brother of the complainant) and PW 4 Neeraj Sharma are the material public witnesses. Now let us see, what PW 1 (complainant) has to say about the role of the accused in the present incident.
20. PW 1 Raghav Mishra (complainant) deposed that on 03042017, after finishing his work at night at 02:00 a.m, he Sessions Case No: 493/17 Page 7 of 26 8 alongwith one of his colleague namely Neeraj Sharma left the office on the bike of Neeraj Sharma and at about 02:30 a.m, Neeraj dropped him near Krishna Dairy 40 foota road, Vijay Vihar and thereafter he left. PW 1 further deposed that from there he started walking towards his home and when he reached in his street suddenly 56 boys came and apprehended him.
21. PW 1 further deposed that he somehow managed to escape but was apprehended by the said boys within a very short distance. One of the boys who was well built and was quite taller had placed knife upon his neck. PW 1 further deposed that he got afraid and one of the boys who was shorter in height and was about 5'4" tall had forcibly taken out his mobile phone make OPPO F1S of white and golden colour from his pocket and another boy had also forcibly taken out his purse containing his Adhar card, ID Card of school of open learning, some documents, some visiting cards and Rs. 506 (four coins out of which two coins were of Rs. 2/ each and two coins of Rs. 1/ each.
22. PW 1 further deposed that after hearing his hue and cry, his brother Ashutosh came there at the place of incident. Thereafter all the aforesaid 56 boys fled away from there. PW 1 further deposed that he and his brother Ashutosh managed to apprehend one of the above said 56 boys and recovered his above said purse from his possession and upon inquiry the name Sessions Case No: 493/17 Page 8 of 26 9 of the said boy was revealed as Kuldeep S/o Satpal. PW 1 correctly identify accused Kuldeep in the Court.
23. PW 1 further deposed that call to the police at 100 number was made upon which police came at the spot and recorded his statement. PW 1 further deposed that they handed over the custody of the accused and the purse which was robbed by the accused and by his other associates, to the police. PW 1 further deposed that his statement was recorded which he proved as Ex. PW 1/A.
24. PW 1 further deposed that he showed the place of incident to the police and site plan was prepared. He proved the site plan as Ex. PW 1/B. He further deposed that the recovered purse containing his Aadhar card, ICard of SOL, some visiting cards and some other documents with cash of Rs. 506/ was identified by him as the same were robbed by accused. He further deposed that all the aforesaid articles with purse were sealed in a cloth pullanda and taken into possession vide memo Ex. PW 1/C.
25. PW 1 further deposed that accused Kuldeep was arrested on his identification vide arrest memo Ex. PW 1/D and his personal search was conducted by the IO vide personal search memo Ex. PW 1/E. PW 1 identified black colour rexin purse containing his Adhar Card, I card issued from SOL, some visiting Sessions Case No: 493/17 Page 9 of 26 10 cards, other documents, Rs. 506/ in cash and one photograph of his parents as Ex. P1 to be the same robbed by the accused.
26. PW 1 was cross examined by the Ld. Legal Aid Counsel for the accused. He stated in his cross examination that police reached the spot within 3045 minutes after the incident and someone from the public had called the PCR. He also stated that there were around 40 public persons who had gathered at the spot after the incident.
27. PW 1 further stated that his statement was recorded in the police station and all the documents were prepared in the police station. He also stated that his brother Ashutosh Misha was with him in PS but his signatures were not obtained on any document. PW 1 denied that no such incident had been committed by accused or that someone else had robbed him or that accused has been falsely implicated by the police. PW 1 also denied in his cross examination that someone from the persons gathered at the spot had robbed him or that after arrival of police, actual robber had fled away from there leaving his robbed purse alongwith the articles or that recovered purse had been wrongly planted upon the accused or that he is deposing falsely.
28. PW 3 Ashutosh is the brother of complainant. He deposed that on the intervening night of 02042017 / 03042017 at about 2:30 a.m he had heard scream of his brother Raghav Sessions Case No: 493/17 Page 10 of 26 11 Mishra in gali. After hearing the scream, he got up and he saw towards the gali and noticed that his brother Ragiav Mishra was covered by 23 persons and they were snatching his mobile phone and purse.
29. PW 3 further deposed that when he ran towards his brother, his father and some inhabitants of the gali were with him. He further deposed that one of the accused was over powered by them and purse of his brother was recovered from his front pocket but other accused managed to escape after taking mobile phone of his brother. He further deposed that thereafter they made call to the police and handed over the custody of the accused and purse of his brother to the police. Police took the accused with the purse of his brother in the police station. His brother Raghav Mishra was also taken by the police to the police station but he was interrogated by the police at the spot and his statement was recorded.
30. In his cross examination by the Ld. Legal Aid Counsel for the accused, PW 3 stated that 1520 inhabitants of the gali gathered at the time of the incident. Police officials interrogated those inhabitants but no statement was recorded. PW 3 denied that actual culprit ran away from the spot leaving the purse of his brother which has been falsely planted upon the accused. He denied that he handed over the purse to the police and accused Sessions Case No: 493/17 Page 11 of 26 12 was falsely implicated in the present case. He further stated that his statement was recorded at the spot and except his brother, no one else went to the police station alongwith him.
31. PW 4 Neeraj Sharma deposed that he was working in a call centre by the name of Deemark Teleone at Pitam Pura Delhi and Raghav Mishra who is his friend was also working with the said company and their duty hours were 5:00 p.m. to 2:00 a.m. He further deposed that on the intervening night of 02/03042017, after finishing their duty, they left the company. He further deposed that they both started to their house on his motorcycle bearing registration No. 6977.
32. PW 4 further deposed that Raghav Mishra was sitting behind him on his motorcycle and at about 2:15 a.m, he dropped Raghav Mishra at the corner of gali of his house and after dropping him he left for his house. He further deposed that on the next date, he came to know that Raghav Mishra was robbed by 23 persons.
33. PW 4 was cross examined by the Ld. Legal Aid Counsel for the accused but there is nothing in his cross examination worth discussion.
34. Though, PW 4 Neeraj Sharma is not an eye witness of the incident, but he has corroborated PW 1 (complainant) on the point of leaving the office after the duty hours i.e. at 2:00 a.m. Sessions Case No: 493/17 Page 12 of 26 13 alongwith him on his motorcycle on the date of the incident i.e. on the intervening night of 02/03042017. He further corroborated PW 1 with regard to the fact that he dropped PW 1 near his house. No doubt, there is some contradiction between the testimony of PW 1 and PW 4 with regard to the timings because according to PW 1, PW 4 dropped him near his house at about 02:30 a.m. and according to PW 4 he dropped PW 1 near his house at 2:15 a.m. but this contradiction is immaterial and does not go to the root of the matter. Moreover, there is no cross examination of PW 4 on behalf of the accused on this point and no suggestion has been given to PW 4 that PW 1 did not leave the office with him on the date of the incident on his motorcycle or he had not dropped PW 1 near his house on the intervening night of 02/03042017 at about 2:15 a.m. Here it is also to be kept in mind that no one is expected to keep track of the time. So the testimony of PW 4 on this aspect has gone unrebutted and unchallenged. Therefore, the prosecution has been able to prove on record that on the intervening night of 02/03042017, PW 4 dropped PW 1 near his house at about 2:15 a.m.
35. Now coming to the testimonies of PW 1 Raghav Mishra who is the complainant and PW 3 Ashutosh who is the brother of the complainant. They have been cross examined by the Ld. Legal Aid counsel for the accused but despite that nothing material could be extracted from their cross examination. PW 1 Sessions Case No: 493/17 Page 13 of 26 14 and PW 3 have supported the case of the prosecution on all material particulars of the case and there is nothing in their cross examination to discredit their testimonies except some minor contradictions. PW 1 has correctly identified the accused in the Court and categorically deposed that on the day of the incident, accused alongwith his associates robbed him of his mobile phone make OPPO F1S of white and golden colour and his purse containing his Adhar Card, ID card of school of open learning, some documents, visiting cards and Rs. 506/.
36. He also categorically deposed that after hearing his hue and cry his brother PW 3 Ashutosh came at the place of incident, and all the 56 boys fled away from there but he and his brother Ashutosh had managed to apprehend the accused and purse was recovered from him and subsequently on the arrival of the police accused alongwith the purse containing the articles above mentioned was handed over the police. PW 3 Ashutosh has also deposed that on the intervening night of 02042017 / 03042017 at about 2:30 a.m. he heard scream of his brother Raghav Mishra in the gali, so he got up and saw towards the gali. He noticed that his brother Raghav Mishra was covered by 23 boys who were snatching his mobile phone and purse. He further deposed that he ran towards his brother and one of the accused was overpowered by them and purse of his brother was recovered from his front pocket but other accused managed to escape Sessions Case No: 493/17 Page 14 of 26 15 after taking of mobile phone of his brother.
37. PW 3 correctly identified the accused and deposed that accused was over powered by them and was handed over to the police alongwith the recovered purse containing articles of his brother. PW 1 also identified his purse as Ex. P1 alongwith other articles which were robbed by the accused. So both PW 1 and PW 3 have corroborated each other on all material particulars of the case and I find no reason to disbelieve them because there is nothing in their cross examination to make them unbelievable except some minor contradictions which are merely the inconsistencies on the fringe without materially affecting the credibility of their evidence. Moreover, as far as identity of the accused is concerned there cannot be said to be any doubt in this regard as accused was apprehended at the spot and even otherwise the presence of the accused at the place of incident is admitted.
38. It has been vehemently argued by the Ld. Legal Aid counsel for the accused that there are contradictions between the testimonies of PW 1, PW 3 and other officials witnesses who participated in the investigation, which are sufficient to doubt the case of the prosecution. So now let us see, what are the contradictions appearing in the testimonies of PW 1, PW 3 and other official witnesses who participated in the investigation or whether they are material contradictions which goes to the root of Sessions Case No: 493/17 Page 15 of 26 16 the case.
39. Before proceeding further and marshaling the evidence the settled principles of laws are to be kept in mind. Firstly, the court is capable of sifting the chaff from grain. Secondly, the contradictions which does not go the root of the matter are to be ignored. Thirdly, the testimonies of official witnesses are not to be discarded if they are otherwise truthful.
40. Contradictions between the testimonies of the witnesses : According to PW 1 (complainant) 40 public persons gathered at the spot after the incident. According to PW 3 Ashutosh 1520 inhabitants of the gali gathered at the time of the incident. According to PW 6 Ct. Suresh 23 public persons were present at the spot and according to IO (PW 7) there were 34 persons present at the spot. All the above witnesses have given different number of public persons who were present at the spot. It is to be kept in mind that the incident took place at around 2:30 a.m. / 3:00 a.m., so the presence of public persons can vary with each passing moment. Public persons gathered at the place of incident and slowly wither away which might have happened in this case as public persons arrived at different time. Moreover, it was difficult for PW 1 and PW 3 to have kept a correct count of the public persons. Therefore, in my opinion, this contradiction is not sufficient to belie the testimonies of PW 1 and PW 3.
41. Next contradiction pointed out by the Ld. Legal Aid Sessions Case No: 493/17 Page 16 of 26 17 Counsel for the accused is that PW 1 stated in his cross examination that his statement was recorded in the police station and all the documents were prepared in the police station and his brother Ashutosh Mishra was with him in the police station. But according to PW 6 Ct. Suresh and PW 7 ASI Vats Raj who is the IO of the case, statement of the complainant PW 1 was recorded at the spot and all the documents were also prepared at the spot. Further, according to PW 3 Ashutosh, his brother Raghav Mishra (PW 1) was taken by the police to the police station and he was interrogated by the police at the spot and his statement was also recorded and PW 3 in his cross examination also reiterated that his statement was recorded at the spot, so PW 3 is not supporting the version of PW 1 that he was with PW 1 in the police station.
42. No doubt, PW 1 has stated in his cross examination that his statement was recorded in the police station and all the documents were also prepared in the police station but the same has not been stated by PW 6 and PW 7. But, the entire case of the prosecution cannot be faulted on this score alone. PW 6 in his cross examination on behalf of the accused has denied the suggestion that all the documents were prepared in the police station. Similarly, IO (PW 7) has also denied that the entire proceedings were conducted in the police station. So PW 6 and PW 7 have corroborated each other on this aspect. As far as Sessions Case No: 493/17 Page 17 of 26 18 contradiction with regard to the fact that PW 1 stated that his brother (PW 3) was with him in the police station but according to PW 3 his brother (PW 1) was taken by the police to the police station and his statement was recorded by the police at the spot is also not a such type of contradiction on the basis of which the entire testimony of PW 1 can be thrown out. Moreover, the presence of PW 3 at the spot has also not been doubted by the defence as it was suggested by the Ld. defence counsel to PW 3 as follows :
"It is wrong to suggest that I handed over the purse to the police or that accused was falsely implicated in the present case."
43. It is settled preposition of law that minor discrepancies and contradictions do creep in the statement of the prosecution witnesses. The court has to see whether the contradictions are material and goes to the root of the matter. In this regard reliance can be placed on judgment reported as 1999 Vol. 8 AD (SC) 642 and JT 1991 (7) SC 247.
44. PW 1 complainant is a public witness and his cross examination was conducted on 12102017 and the date of incident is the intervening night of 2/342017, so he has come to depose in the Court after a gap of about 6 months and it is a matter of common knowledge that memory of human being Sessions Case No: 493/17 Page 18 of 26 19 lapses after a gap of certain period and we cannot expect from a person to give each and every detail of the case in a particular manner. It is well settled that if the witnesses appear in the court for deposition then, obviously some contradictions and improvements are bound to occur. This may be due to lapse of time and memory of human being. In Criminal Trial Court, the duty of the courts is not to let off the criminals on petty discrepancies and minor contradictions. Ground realities must be appreciated. Accused be not allowed the benefit of defective investigation. Prosecution lapses cannot be allowed to escape route of criminals and prosecution has to prove its case by broader probabilities as so observed in case Vishveswaran Vs. State 2003 RLR 350 (SC). In the matter of Sukhdev Yadav and others Vs. State of Bihar reported in JT2001 (7)SC597. It was held as under:
The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes, there would be a deliberate attempt to offer the same. Sometime, the witnesses in their over anxiety to do better from the witness box details out an exaggerated account.Sessions Case No: 493/17 Page 19 of 26 20
Further it was held in this case that minor variations with regard to place of occurrence would not render the evidence untrustworthy, if otherwise on perusal of evidence in its entirety, it appears to be trustworthy."
45. Therefore, no doubt the witnesses have contradicted each other with regard to the place of recording of statement of the complainant PW 1 by the IO, place of preparation of documents and PW 1 has also contradicted with regard to the presence of PW 3 with him in the police station, but on the basis of these contradictions the entire testimonies of PW 1, PW 3, PW 6 and PW 7 cannot be doubted who have corroborated each other on all material particulars of the case. Even if the statements were recorded in the police station then it is not understood as to what prejudice has been caused to the accused, nor it has been pointed out by the accused.
46. Next it is contended by the Ld. Legal Aid counsel for the accused that it has come in the testimonies of PW 1 and PW 3 that public persons were present at the spot, but, despite that no public person was joined by the IO during the investigation, which creates doubt in the story put fourth by the prosecution. She further urged that the recovery of purse has been planted upon the accused.
47. No doubt PW 1 and PW 3 have talked about the presence of public persons at the spot but it is a matter of common knowledge that public persons are reluctant to be a Sessions Case No: 493/17 Page 20 of 26 21 witness or to assist the investigation. Reasons are not far to seek. In this regard reliance can be placed on a judgment in case titled as Ambika Prasad Vs. State reported as JT 2000 (1) SC
273. Moreover, it is the quality of the evidence which is to be seen and not the quantity.
48. As far as the arrest and recovery of purse from the possession of accused is concerned, the witnesses to the recovery of purse from the possession of the accused are PW 1 Raghav Mishra (complainant), and PW 3 Ashutosh. Both PW 1 and PW 3 have deposed that they apprehended the accused at the spot and from the possession of accused robbed purse of complainant (PW1) containing his Icard, Adhar Card, photographs, some visiting cards and Rs. 506/ was recovered and later on after the arrival of the police, accused alongwith the said purse containing said articles was handed over to the police. PW 1 has also deposed that the said purse alongwith the said articles containing therein was seized vide seizure memo Ex. PW 1/C by the police and the accused was also arrested on his identification vide arrest memo Ex. PW 1/D.
49. Similarly, PW 6 Ct. Suresh and PW 7 (IO) ASI Vats Raj Singh have also deposed that when they reached at the spot accused was in the custody of the complainant who handed over the accused alongwith the purse containing said articles which was recovered from the possession of the accused to them and Sessions Case No: 493/17 Page 21 of 26 22 the purse alongwith the said articles was seized by the IO (PW 7) vide seizure memo Ex. PW 1/C and the accused was arrested vide arrest memo Ex. PW 1/D. So, PW 1, PW 3, PW 6 and PW 7 have corroborated each other with regard to the recovery of purse from the possession of the accused and PW 1, PW 6 and PW 7 who are the witnesses to the arrest memo of the accused have also deposed about the manner in which the accused was arrested vide arrest memo Ex. PW 1/D. There is nothing in their cross examination which could render their testimony unreliable. Therefore, I am of the opinion, that the prosecution has been able to prove the arrest of the accused and also the recovery of the purse containing Icard, Adhar Card, photographs, some visiting cards and Rs. 506/ of the complainant from the possession of the accused Kuldeep.
50. Nothing has been brought on record by the accused to show as to why the complainant would falsely implicate him. No previous enmity of the accused with the complainant has been proved on record. Neither it is the case of the accused that complainant was inimical towards him at any point of time. The defence taken by the accused is that he was passing from the spot and due to misconception he was overpowered and the purse of the complainant was lying at the spot. He further stated that he used to work in Jagran etc. and used to be free from work in the late night and on the day of the incident also, he was Sessions Case No: 493/17 Page 22 of 26 23 coming from his work at Jhandewalan Mandir and at that time there was no bus service, so he was walking towards his house but he was apprehended and falsely implicated in the present case and the actual culprit had ran away.
51. First of all the defence taken by the accused appears to be a sham defence. Because no complaint was lodged by the accused or his relatives with the higher police officials regarding his false implication in the present case. It is not understood, if according to the accused, he was falsely implicated, then what prevented him or his relatives from lodging the complaint with the higher police authorities regarding his false implication in the present case. It has been stated by the accused that he used to work in Jagran etc. and used to be free from work in the late night and on the day of the incident also he was coming from his work at Jhandewalan Mandir. But no evidence has been led by the accused to prove this fact. The accused could have examined any person from his work place i.e. Jhandewalan Mandir or any person acquainted to him who was present in the Jagran at Jhandewalan Mandir to prove the fact that he was coming from Jagran or he participated in the Jagran on the date of the incident but for the reasons best known to him he failed to do so. Therefore, the accused has failed to prove the defence taken by him in his statement U/s 313 Cr.P.C.
52. In view of the discussions mentioned hereinabove, the Sessions Case No: 493/17 Page 23 of 26 24 prosecution has been able to prove that it was accused Kuldeep who alongwith his other associates committed robbery with the complainant (PW 1) on the intervening night of 02 / 03042017 at about 2:30 a.m. and he was apprehended at the spot and robbed purse of the complainant alongwith the articles mentioned above was recovered from his possession which was seized by the IO (PW 7) vide seizure memo Ex. PW 1/C.
53. The accused in the instant case has been charged U/s 395/411 IPC. Now it is to be seen under what sections the accused is to be convicted.
54. Section 395 Indian Penal Code reads as follows :
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous impris onment for a term which may extend to ten years, and shall also be liable to fine.
55. Section 411 Indian Penal Code reads as follows :
411. Dishonestly receiving stolen property.--
Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or Sessions Case No: 493/17 Page 24 of 26 25 with fine, or with both.
56. Initially in his statement Ex. PW 1/A, the complainant PW 1 has stated that he was waylaid by 23 boys but when he was examined under oath in the court he stated that 56 boys had waylaid him and then tried to robbed him of his articles. PW 3 who is the brother of the complainant has stated in his examinationinchief that when he got up after hearing the screams of his brother and saw towards the gali, he noticed that his brother (PW 1) was covered by 23 persons.
57. Now it is to be seen whether this discrepancy about the number of persons who had waylaid PW 1 is sufficient to discredit his entire testimony as argued by the Ld. defence counsel. In my opinion, the answer to this question is in the negative. No doubt PW 1 has differed on the counting of the boys who had waylaid him which can be a mistake committed by him but, it is not expected from a person who has been waylaid in the late night hours to keep count of the persons who had tried to rob him. So simply because he differed in the counting of number of persons who had tried to rob him on the intervening night of 02 /03042017, cannot be a sole ground to discredit PW 1 (complainant) when other attending circumstances as discussed hereinabove are supporting his case. However, in my opinion, the benefit in this regard should be given to the accused and he is, therefore liable to be held guilty and convicted Sessions Case No: 493/17 Page 25 of 26 26 U/s 392/411 IPC instead of Section 395/411 IPC.
58. Therefore, in view of the discussions mentioned herienabove, I am of the considered opinion, that the prosecution has been able to prove its case against accused Kuldeep beyond all reasonable doubts. Accused Kuldeep is, therefore, held guilty and convicted for the offence punishable under section 392/411 IPC. Now put up for arguments on the point of sentence on 05092018.
(Announced in the open Court today i.e. on 28082018) Digitally signed by RAJNISH RAJNISH BHATNAGAR BHATNAGAR Date: 2018.08.28 17:12:34 +0530 (RAJNISH BHATNAGAR) DISTRICT & SESSIONS JUDGE NORTH / WEST DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 493/17 Page 26 of 26