Delhi District Court
State vs Salman @ Shainu on 3 June, 2019
In the Court of
Dr. Satinder Kumar Gautam: ASJ-03 (East):
Karkardooma Courts: Delhi.
S.C. No. 787/2018
State Versus Salman @ Shainu
S/o Sh. Yusuf
R/o H. No. 457, Gali No. 21,
Jafrabad, Shahdara,
Delhi.
FIR No. : 33/2018
PS. : Pandav Nagar
U/s. : 392/397/34 IPC
Chargesheet Filed On : 20.04.2018
Chargesheet Allocated On : 07.05.2018
Judgment Reserved On : N.A.
Judgment Announced On : 03.06.2019
JUDGMENT
1. On 09.02.2018 at abut 12 noon Dr. Sadhna Gupta, the complainant, was present in a rickshaw and was present near ahead to Sahyog Apartment, two boys called her on which she got stopped rickshaw on which pillion rider, at the point of pistol, directed her to hand over the gold bangles worn by her on which on account SC No. 787/2018 State Vs. Salman @ Shainu Page 1 of 16 of fear, she handed over her gold bangles, gold ring and mobile phone to them and thereafter both of them fled away from there towards NOIDA link Road on their bike.
2. Complainant lodged her report with the police narrating the above mentioned facts submitting that she could identify both of them. On the basis of the said statement of the complainant, present FIR bearing no. 33/2018 PS Pandav Nagar Under Sec. 392/394/34 was registered.
3. During the investigation of this case, on 22.02.2018 accused Salman @ Shainu was arrested in case FIR No. 31/2018 in which he disclosed about the commission of crime in the present matter and on the basis of the same, accused was also arrested in the present case. Test Identification Parade proceedings were got conducted and accused was identified by complainant. Despite best efforts co-accused could not be arrested nor robbed items were got recovered.
4. On conclusion of the investigations of the case, accused Salman @ Shainu has been chargesheeted for the offences punishable under Sec. 392.397/34 IPC and said chargesheet was filed before the court of learned Metropolitan Magistrate. SC No. 787/2018 State Vs. Salman @ Shainu Page 2 of 16
5. After completion of investigation, chargesheet was filed against the accused to face trial, for the offence punishable under Sec. 392/397/34 IPC, before the court of ld. Metropolitan Magistrate.
6. After compliance of provisions of Sec. 207 CrPC by the court of learned MM, case was committed to the court of Sessions as the offence punishable under Sec. 397 IPC is exclusively triable by it.
7. Vide order dated 06.06.2018 charge under Sec. 392/34 read with Sec. 397 IPC was framed against the accused to which said accused pleaded not guilty and claimed trial.
8. To prove the guilt against the accused, prosecution examined total six witnesses in support of its case who are as follows:
PW-1 Dr. Sadhna Gupta is the complainant/victim who narrated the incident and proved her statement as Ex.PW1/A further proving TIP proceedings as Ex.PW1/B. PW-2 ASI Jai Bhagwan deposed that on 22.02.2018 he joined the investigations of this case with IO and proved arrest proceedings of the accused as Ex.PW2/A & 2/B. PW-3 HC Ram Roop joined the investigations of this SC No. 787/2018 State Vs. Salman @ Shainu Page 3 of 16 case on 09.02.2018 and got the FIR registered on ruqqa being handed over to him.
PW-4 SI Manoj Kumar is a formal witness;
PW-5 HC Kishan Pal also joined the investigation of this case on 08.03.2018 and despite best efforts associate of accused could not be arrested.
PW-6 SI S.B. Saran is Investigating Officer of the case and proved the memos prepared in this case.
During prosecution evidence, accused in his statement recorded under Se. 294 CrPC admitted the FIR and TIP proceedings conducted in the present matter.
The detailed testimonies of the witnesses concerned shall be discussed at the relevant stage of the judgment.
9. All the incriminating evidence put to the accused in his statement recorded under Sec. 313 CrPC. The accused denied the allegations levelled against him and further pleaded his innocence submitting that he has been implicated in this case after lifting him from his house and after obtaining his signatures on end number of blank papers. Accused did not opt to lead any evidence in his defence.
10. Learned Addl. PP for the State argued that prosecution SC No. 787/2018 State Vs. Salman @ Shainu Page 4 of 16 has been able to prove the charge framed against the accused through ocular testimonies of the prosecution witnesses. He also submitted that there is no reason to disbelieve the testimonies of the prosecution witnesses including the complainant/victim, who is totally stranger to the accused, and there is no reason to implicate the accused falsely in this case by complainant/victim who has clearly identified the accused as one of the assailants and complainant also identified the accused during judicial Test Identification Parade proceedings, which stood also admitted by the accused. He also submitted that rather victim would be the most interested person to see the real culprit(s) behind the bars. He argued that no material contradiction was found among the testimony of prosecution witnesses. Ld. Addl. PP prayed for conviction to the accused, as per the charges framed against him.
11. Per contra, learned defence counsel submitted that prosecution case is demolished by the testimony of the only material/public witness i.e. PW-1 Dr. Sadhna Gupta, the complainant/victim which is full of doubts, contradictions and improvements. Learned defence counsel also stated that complainant herself is not sure who used pistol in the present matter. Ld. defence counsel also contended that absence of public persons SC No. 787/2018 State Vs. Salman @ Shainu Page 5 of 16 at the time of the alleged proceedings is also an indicator that prosecution case is full of doubts and as such, prosecution has failed to prove its case against the accused and thus prayed for acquittal of the accused.
12. Learned defence counsel further drew the attention of the court towards the fact that non recovery of any robbed article is also another dent in the prosecution story. Ld. defence counsel further submitted that all this lead the case to acquittal for the accused.
13. Rival submissions considered and material on record have been perused in view of the law on the issue in question.
14. Perusal of the record clearly shows that PW-1 Dr. Sadhna Gupta, the complainant/victim is the key and star witness of the case. She in clear and unequivocal terms stated that on the date and time of the incident she was robbed by accused as one of the culprits. To facilitate the matter, testimony of said witness is hereby reproduced as: ......
"On that day, it was about 122/12.15 p.m. while I was going to Acharya Niketan Market from my house in a rickshaw via Shiv Mandir Road and when I reached just ahead near Sahyog Apartments Gate, I was called by two boys who were on xxx motorcycle so I got stopped the rickshaw puller and SC No. 787/2018 State Vs. Salman @ Shainu Page 6 of 16 then they reached very near to me and the pillion rider of the said motorcycle shown a pistol to me and directed me to handover my gold bangles which I was wearing at that time. On account of fear, I handed over two gold bangles which I was wearing in one hand and then he again directed me to hand over one gold ring and my mobile phone on which I had also handed over the one gold ring and mobile phone make Samsung xxxxxxx On 24.02.2018 I again joined the investigations of this case as I was called by the IO xxxxxxxx I I reached Mandoli Jail and joined the proceedings conducted by Metropolitan Magistrate. I identified the accused Salman @ Shainu - as one of the offender - who is now present in the court. xxx".
15. Perusal of the above, it is clear that victim narrated the incident and identified the accused as one of the culprits as responsible for the robbery committed upon her. Now court has to see evidentiary value of the said witness.
16. Contention of ld. defence that non-citation and non- examination of the public witness is fatal to the prosecution case. This contention has no force in view of the latest judgments. It is general practice and common parlance that this type of incident occurred when one is alone and if other public person present, other SC No. 787/2018 State Vs. Salman @ Shainu Page 7 of 16 may not have courage to come forward and depose before the court for committal of the offence.
17. As regard to the next contention of ld. defence counsel that testimony of PW-1 Dr. Sadhna Gupta, the complainant/victim is full of improvements and contradictions, it is to be seen that ld. defence counsel has unable to pin point any such improvement and contradiction which may go to the root of the case. Besides the above, it is also well settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. Minor discrepancies in the statements of witnesses are of no help to the accused. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating SC No. 787/2018 State Vs. Salman @ Shainu Page 8 of 16 a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
18. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Hon'ble Apex Court observed that :
"In the depositions of witnesses there are always some normal discrepancies however honest ad truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which SC No. 787/2018 State Vs. Salman @ Shainu Page 9 of 16 are not normal, and not expected of a normal person."
19. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra, (Crl. A. 25-26/2000) the Hon'ble Apex Court held as under :
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW-2. 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. xxxx There is bound to be some discrepancies between the narrations of different witnesses SC No. 787/2018 State Vs. Salman @ Shainu Page 10 of 16 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 eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
20. In the present case, it is to clear that while PW-1 Dr. Sadhna Gupta appeared before the court, she did not point out which one of the culprit had shown pistol to her. She simply stated that it was the pillion rider and before the court she failed to identify who was pillion rider or it was whether the accused who had pointed the pistol to her.
21. There cannot be dispute to the proposition of law that prosecution has to prove its case beyond all reasonable doubts.
22. Accused has been charged for the offence punisable under Sec. 392/34 read with Sec. 397 IPC.
23. Section 397 of the Indian Penal Code (IPC) is as under.: SC No. 787/2018 State Vs. Salman @ Shainu Page 11 of 16
"Robbery, or dacoity, with attempty to causde eath or grievous hurt - if, at the time of committing robbery or dacoity, the offender uses, any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment xxxx"
24. Perusal of the record is clear that as the complainant/victim - PW-1 Dr. Sadhna Gupta, who is the only star and key witness of the case stated that one of the culprit had put the pistol on her at the time of the commission of robbery and directed her to hand over her articles, but could not state as to who was so said culprit and acted but only stated that accused is one of the culprits. Further, complainant/victim only stated that it was pillion rider who had shown pistol to her but not explained that whether it was the present accused who had shown the pistol or that it was other one. Apart from that date weapon of offence i.e. pistol also could not be recovered either from the accused or at his instance. There cannot be dispute to the legal proposition of law that for attracting the provisions of Sec. 397 IPC, the person only who committed the offence, can be held responsible. As it is clear from the record who had shown or used the weapon of offence, and with SC No. 787/2018 State Vs. Salman @ Shainu Page 12 of 16 above observations, court is of the view that prosecution has failed to prove its case against the accused for the offence punishable under Sec. 397 IPC.
25. Now court shall analysis the evidence regarding offence punishable under Sec. 392/34 IPC for which accused has been charged with.
26. As mentioned above, the only star and key witness of the case PW-1 Dr. Sadhna Gupta has identified the accused as one of the culprit for the offence of robbery committed upon her. It is admitted fact that parties were not known to each other prior to the date of incident. There is no reason for false implication of the accused at the hands of the complainant/victim. Rather, the complainant/victim would be the most interested person to see the actual culprit behind the bars.
27. In case reported as Deepak & Ors Vs. State, 2015 VII AD (Delhi) 140, Hon'ble Court has observed as :
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 SC No. 787/2018 State Vs. Salman @ Shainu Page 13 of 16 expected let real offenders go scot free and implicate his friend - xxxx- inconsistent defence led by appellant, to set up plea of alibi, - FIR lodged without delay least possibility of victim to concoct false story in such short period - no bar to base conviction on sole testimony of injured if it inspires confidence.
28. As discussed earlier, nothing has come on record which may even remotely suggest that testimony of the complainant/victim suffers from any material contradiction and/or improvement.
29. Accused has been identified by the complainant during judicial Test Identification Parade proceedings. Said proceedings have been duly proved on record and even accused also admitted that same. During his statement recorded under Sec. 313 CrPC accused took a plea that before the said proceedings, his photographs were shown to the witness. No such plea was ever taken by during the entire investigation/trial of the case, except during cross-examination conducted on PW-6 SI S.B. Saran, the Investigating Officer. No such suggestion was put to even PW-1 during her cross-examination. Said witness during her cross- examination conducted on 30.07.2018 in clear words stated that she had identified the accused out of 10-12 participants at that time. SC No. 787/2018 State Vs. Salman @ Shainu Page 14 of 16 Proceedings to that aspect is also clear that total nine participants were present during those proceedings.
30. Besides the above, one of the contentions of the learned defence counsel that non recovery of the robbed article(s) is dent to the prosecution case for which accused is entitled for acquittal is not tenable in the eyes of law. It is to be seen that first of all accused has not been charged for any such offence i.e. for recovery of robbed articles and if this plea is to be accepted, every offender will firstly disposed of the robbed/theft articles. Non recovery of any such article never exonerate the accused for the commission of robbery/theft/dacoity. Even with this intention, legislature has given different offences for these different categories of crimes.
31. Accused during his statement recorded under Sewc. 313 CrPC took plea that he was implicated in this case after lifting him from his house. No such plea was ever taken by him during the entire trial. No such suggestion was put to any of the prosecution witnesses. If accused was not present on the date and time of incident at the spot, he failed to explain/mention his presence at other place. All this shows that this plea is taken for the sake of plea and has no value in the eyes of law.
SC No. 787/2018 State Vs. Salman @ Shainu Page 15 of 16
32. Hence, in view of the above, it is clear that prosecution has miserably failed to prove its case for the offence punishable under Sec. 397 IPC, however, has proved its case beyond all reasonable doubts that it was one of the accused who has committed robbery on date, time and place of incident on the person of Dr. Sadhna Gupta for her gold items and mobile phone. Accordingly, accused namely Salman @ Shainu S/o Yusuf is acquitted of the offence punishable under Sec. 397 IPC however said accused is held guilty for the offence punishable under Sec. 392/34 IPC and is convicted accordingly.
Announced in open court SATINDER Digitally signed by
SATINDER KUMAR
on 03rd day of June, 2019 KUMAR GAUTAM
Date: 2019.06.03 16:24:39
GAUTAM
(Dr. Satinder Kumar+0530
Gautam)
Addl. Sessions Judge-03 (East):
KKD Courts: Delhi.
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