Delhi District Court
State vs . (1). Arjun on 30 June, 2014
FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 58/1 Unique Case ID No. 02404R0052392012 State Vs. (1). Arjun S/o Sh. Satpal R/o B67, PhaseI, Metro Vihar, Holambi Kalan, Delhi. (2). Sanni S/o Sh. Rakesh R/o B62, BBlock, PhaseI, Holambi Kalan, Metro Vihar, Delhi. (3). Ashok @ Puppy S/o Sh. Surinder R/o F813, J.J. Colony, Bawana, Delhi (4). Sonu S/o Sh. Gulab Singh R/o H. No. F266, Rassiwali Gali, Seema Puri, Delhi & C247, Metro Vihar, PhaseI, Holambi, Delhi FIR No. : 402/11 Police Station : Shahbad Dairy Under Sections : 392/394/397/34 IPC Date of committal to Sessions Court : 14.03.2012 Date on which judgment was reserved: 27.06.2014 Date on which Judgment pronounced : 30.06.2014 JUDGMENT:
The above named accused persons had been sent to face trial in respect of offences u/s 394/397/34 IPC by the prosecution on the State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 1 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 allegations that all the said four accused persons in furtherance of their common intention, had robbed complainant namely Sh. Shiv Kumar @ Shibu Kumar of his mobile phone make Nokia and Rs. 1000/ after causing injuries to him as well as to his nephew namely Sh. Upendra with knife used by accused Arjun as also by giving beatings to them.
The case of prosecution as mentioned in the chargesheet is as under:
(i). On 18.12.2011 at 8.20 pm, intimation was received in PP Metro Vihar of PS Shahbad Dairy regarding stabbing of one person with knife near roundabout (Chauraha), GBlock Market, Sector5, Bawana. The said information was recorded vide DD No.20PP and copy thereof was handed over to HC Ramesh Chand for necessary action. SI Mukesh posted as In charge, PP Metro Vihar, also went to the spot.
(ii). SI Mukesh, HC Ramesh Chand and Ct. Sachin reached the spot where it was revealed, on enquiry, that injured had been removed to Maharishi Valmiki Hospital through PCR van.
Accordingly, SI Mukesh Kumar alongwith HC Ramesh Chand and Ct. Sachin went to Maharishi Valmiki Hospital where injured Shiv Kumar @ Shibu Kumar S/o Sh. Hari Shankar was found admitted in the said hospital. He was declared fit for the statement.
(iii). SI Mukesh Kumar recorded statement of injured Shiv Kumar @ Shibu Kumar wherein he claimed that on 18.12.2011 at State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 2 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 about 7 pm, he alongwith his nephew Upender were returning to their factory after purchasing jacket from Sunday Market situated at Metro Vihar. At about 7.30 pm when they reached near CBlock Primary School, two boys came and started beating them. One of the boy was having height of 5 feet 2 inch having dark complexion. They gave beatings to both of them with fists and kick blows. In the meantime, two more boys also joined them. One out of said two boys caught hold of his hand but his nephew managed to flee away from there. One of those boys inflicted injuries with sharp edged weapon, on his chest due to which he sustained injuries. Another boy took out mobile phone from right pocket as also cash amount of Rs. 1000/ from back side pocket of of his jeans pant.
(iv). On the basis of aforesaid statement made by injured Shiv Kumar @ Shibu Kumar FIR, U/s 394/397/34 IPC was registered at PS Shahbad Dairy and investigation was assigned to SI Mukesh Kumar.
(v). On next day of incident i.e. 19.12.2011, injured Shiv Kumar pointed out the place of occurrence on which site plan was prepared. Injured Shiv Kumar @ Shibu Kumar also produced his shirt and vest (baniyan) and claimed that same were having blood stains but he had washed them off. However, the said wearing clothes were found having cut marks of knife. After preparing pullanda of said clothes, same were sealed State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 3 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 with the seal of MK and were taken into police possession.
(vi). On 19.12.2011, injured Shiv Kumar @ Shibu Kumar joined investigation of this case with SI Mukesh Kumar. All four accused persons herein were apprehended at the instance of secret informer from a place situated near DDA land, Metro Vihar. All four accused persons were identified by the injured/ complainant to be the assailants involved in the present case. He identified accused Arjun to be the person who was having sharp edged weapon and who had inflicted injuries on his chest. He also claimed that accused Sonu S/o Sh. Gulab Singh had taken out his mobile phone and cash amount of Rs. 1000/ from his jeans pant while remaining two accused persons were the boys who had initially come to them and had started beating him as well as his nephew Upendra.
(vii). Accordingly, all four accused persons were arrested and their personal search were conducted by SI Mukesh Kumar. All the said four accused persons made disclosure statements before SI Mukesh Kumar.
(viii). Pursuant to his disclosure statement, accused Arjun led the police to his house no. B67, PhaseI, Metro Vihar, Holambi Kalan, Delhi and got recovered vegetable knife from the box lying inside the room of his house. After conducting necessary proceedings including measuring said knife and preparing its rough sketch, its pullanda was prepared, same State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 4 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 was sealed with the seal of MK and said knife was seized by SI Mukesh Kumar.
(ix). Pursuant to his disclosure statement, accused Sonu led the police to his house no. C247, Metro Vihar, PhaseI, Holambi, Delhi and got recovered mobile phone make Nokia of white and black colour without SIM from below pillow of the bed (charpai) lying in the said house. After preparing pullanda of said mobile, it was sealed with the seal of MK and said mobile phone was seized by SI Mukesh Kumar.
(x). Pursuant to his disclosure statement, accused Ashok @ Puppy led the police to house of inlaws i.e. H. No. B62, BBlock, PhaseI, Holambi Kalan, Metro Vihar, Delhi wherefrom he got recovered cash amount of Rs. 70/ consisting of one currency note of Rs. 50/ and two currency notes of Rs. 10/ each from the pocket of pant, hanging on the wall of said house. After preparing pullanda of said currency notes, same were sealed with the seal of MK and were taken into possession.
(xi). Pursuant to his disclosure statement, accused Sanni led the police to his house no. B62, BBlock, PhaseI, Holambi Kalan, Metro Vihar, Delhi wherefrom he got recovered cash amount of Rs. 90/ consisting of one currency note of Rs. 50/ two currency notes of Rs. 10/ each and one currency note of Rs. 20/, from the pocket of his shirt. After preparing pullanda of said currency notes, same were sealed with the State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 5 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 seal of MK and were taken into possession.
(xii). Sh. Upender also met SI Mukesh Kumar while he was searching for his uncle Shiv Kumar @ Shibu Kumar. He also identified all four accused persons to be the assailants involved in the present case.
(xiii). During the course of investigation, SI Mukesh Kumar obtained result on the MLC of injured Shiv Kumar @ Shibu Kumar, recorded statements u/s 161 Cr.P.C. of witnesses, obtained blood sample of injured Shiv Kumar @ Shibu Kumar from Maharishi Valmiki Hospital. The concerned doctor handed over blood sample, blood gauze piece and blood, all sealed with the seal of MS MB Hospital, alongwith sample seal.
(xiv). On 25.01.2012, SI Mukesh Kumar moved an application for giving opinion regarding cut marks appearing on shirt and vest of injured Shiv Kumar @ Shibu Kumar, vegetable knife recovered at the instance of accused Arjun.
(xv). After necessary examination and pursuant to the queries of IO, concerned doctor gave opinion as under:
(a). Yes, the injury present on the body of victim Shiv Kumar @ Shibu Kumar can be caused by Instrument.
(b). Yes, the cut marks are possible as the instrument was sharp from front and edges could cut the clothing if applied with force.
State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 6 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014
(c). Yes, the injury cut on the shirt and baniyan correspond to site of injury.
(d). As there was rib (bone) present behind the soft tissue, hence instrument could not pass through the chest.
(xvi). SI Mukesh Kumar got the relevant exhibits alongwith priority letter deposited in FSL, Rohini.
(xvii). After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 392/394/34 IPC against all the four accused persons and charge u/s 397 IPC was also framed against accused Arjun s/o Sh. Satpal vide order dated 20.04.2012 to which the accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution has examined as many as eleven witnesses namely PW1 HC Gopal, PW2 Ct. Sachin, PW3 Mr. Upender Kumar, PW4 Mr. Shiv Kumar @ Shibu Kumar, PW5 HC Anand Singh, PW6 Ct. Ramesh Kumar, PW7 HC Ranjeet, PW8 SI Mukesh Kumar, PW9 Ct. Ranbir, PW10 Dr. Saurabh Kumar and PW11 Dr. Amit Shokeen during trial till 15.04.2014.
Thereafter, statements U/s 313 Cr.PC of all the four accused persons were recorded during which incriminating evidence were put to State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 7 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 them but same were denied by them. All the four accused persons claimed innocence but their defence was of general denial. However, all the four accused persons did not opt to lead DE towards their defence.
I have heard Sh. V.K. Negi, Ld. Substitute Addl. PP on behalf of State, ld. Counsel Sh. Kundan Kumar, Adv. on behalf of accused Arjun and Sonu and ld. Amicus Curiae Ms. Sunita Tiwari, Adv. on behalf of accused Sanni and Ashok. I have also gene through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss in brief the testimonies of prosecution witnesses examined during trial.
Public Witnesses: PW3 namely Sh. Upender was present alongwith complainant Shiv Kumar @ Shibu Kumar at the time of incident in question. He deposed about the manner in which incident took place. He identified accused Sanni and Ashok to be the persons who had initially come to them and caught hold of his uncle namely Shiv Kumar @ Shibu Kumar (complainant). He identified accused Arjun and Sonu to be the persons who came subsequently and after catching hold of his uncle Shiv Kumar @ Shibu Kumar (complainant), robbed him alongwith other two co accused persons of his mobile phone and cash amount of Rs. 1000/. He has been cross examined at length on behalf of accused persons. State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 8 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 PW4 Sh. Shiv Kumar @ Shibu Kumar is the complainant/injured in this case. He also deposed about the entire incident of robbery committed against him on 18.12.11 while he alongwith his nephew Upender Kumar(PW3) were returning back to his house after purchasing jacket from Sunday Weekly market at Metro Vihar. He identified accused Ashok and Sonu to be the persons who had initially come to them and caught hold of his hands. He deposed that accused Arjun and Sunni had joined the said two accused. He testified that accused Arjun had taken out knife from back pocket of his pant and stabbed him on his chest with the said knife while accused Ashok and Sunni snatched his mobile phone from right front pocket of his pant and cash amount of Rs. 1000/ from back pocket of his pant. He had also suffered injuries due to beatings given by the accused persons. He explained that his nephew Upender (PW3) had run away from the spot to seek help and after commission of offence, Upender Kumar alongwith Shambu had reached the spot. His brother Shambu had called the police on which PCR Van reached there and removed him to M.V Hospital. His statement Ex PW4/A was recorded by the police. He also deposed that on the next day morning, he was discharged from the hospital after which he washed off his Tshirt and Baniyan (Vest) having blood stains due to stabbing with knife and subsequently, he had handed over said clothes to the police which were seized vide memo Ex PW2/A. He also deposed that he had joined IO of the case in order to search for the accused persons and at the instance of some unknown State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 9 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 person (secret informer), all the four accused persons were apprehended from inside DDA Park situated near Metro Vihar. He proved arrest memos and personal search memos Ex PW2/B to Ex PW2/H of all the four accused persons. He also deposed that accused Arjun got the knife recovered from below one box lying in his house. He also deposed that accused Sunni led to the recovery of his robbed mobile phone from below the pillow of his bed lying in the room of his house. Accused Sonu and Ashok got recovered cash amount from the pocket of their respective clothes from their respective houses. He correctly identified not only all the four accused persons but also the knife Ex P1, his clothes i.e. one shirt and one Baniyan Ex P2 and his mobile phone Ex P3 during trial. He has also been cross examined at length on behalf of accused persons. Police Witnesses: PW1 HC Gopal deposed that on 25.01.12, he alongwith SI Mukesh Kumar had collected two sealed pullandas from MHC(M) and reached at M.V. Hospital where said pullandas were produced before concerned doctor who gave his opinion and thereafter, those pullandas were deposited with MHC(M). He has not been cross examined by either of the four accused persons despite grant of opportunity.
PW2 Ct. Sachin had accompanied HC Ramesh Chand on receipt of DD no. 20PP on 18.12.11 to the spot and subsequently to M.V Hospital. He deposed that SI Mukesh Kumar had also reached the said hospital where he had recorded statement of injured Shiv Kumar @ Shibu State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 10 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 Kumar and handed over rukka to him for registration of FIR. Accordingly, he had got the FIR registered and handed over copy of FIR and rukka to SI Mukesh Kumar in M.V. Hospital.
PW2 also deposed that on next day i.e 19.12.11, the clothes of injured Shiv Kumar @ Shibu Kumar were produced before IO SI Mukesh Kumar who seized the same vide memo Ex PW2/A. Thereafter, they left for search of accused persons and all the four accused persons were apprehended at the instance of secret informer. He proved their arrest memos and personal search memos Ex.PW2/B to PW2/H as also their disclosure statements Ex PW2/J to PW2/M. He also deposed about the subsequent proceedings regarding recovery of knife at the instance of accused Arjun from his house and the necessary writing work including measurement of knife, preparing its pullanda, putting seal of MK on it and seizure thereof vide memo Ex.PW2/O; recovery of mobile phone at the instance of accused Sonu from his house and necessary proceedings including preparation of pullanda, its sealing with the seal of MK and seizure thereof vide memo Ex.PW2/P; recovery of Rs. 90/ from the pocket of pant at the instance of accused Ashok from his house and seizure thereof vide memo Ex.PW2/K and recovery of Rs. 70/ from shirt at the instance of accused Sunni from his house and seizure thereof vide memo Ex.PW2/R. He also correctly identified all the accused persons as well as the case property during trial. However, he has not been cross examined by any of the accused persons despite grant of opportunity. State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 11 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 PW5 HC Anand Singh stated that on 19.12.11, SI Mukesh Kumar had deposited five exhibits sealed with the seal of MK in Malkhana vide entry no. 1344/11 copy of which is Ex PW5/A, made in register no. 19. On 10.01.12, SI Mukesh Kumar had deposited two pullandas sealed with the seal of MS M.V. Hospital and one sample seal vide entry at serial no. 771/12 copy of which is Ex.PW5/B, made in register no. 19.
PW5 further deposed that on 01.02.12, four sealed pullandas and one sample seal were handed over to Ct. Ranbir (PW9) for depositing in the office of FSL, Rohini alongwith FSL form vide RC no. 10/21/12. He proved copy of said RC as Ex PW5/C and copy of acknowledgment of FSL as Ex PW5/D. PW5 also testified that on 22.06.12, four sealed pullandas sealed with the seal of FSL and FSL result was deposited in Malkhana by Ct. Sunil Kumar. He was not cross examined by any of the accused despite grant of opportunity.
PW6 Ct. Ramesh Kumar is the DD Writer who proved factum of recording of intimation about stabbing incident, received in P.P. Metro Vihar on 18.12.11 at 8.20 P.M vide DD no. 20PP Metro Vihar. He proved attested copy of said DD entry as Ex.PW6/A. He has not been cross examined on behalf of accused persons.
PW7 HC Ranjit is the Incharge of PCR Van Libra78. He deposed that on 18.12.11 at about 8.00 P.M, he alongwith PCR staff reached at the spot on receipt of wireless message from control room and removed injured Shiv Kumar @ Shibu Kumar S/o Hari Shanker to M.V. Hospital State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 12 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 and got him admitted there. He has also not been cross examined despite grant of opportunity.
PW9 Ct. Ranbir stated about deposit of four pullandas alongwith sample seal in the office of FSL, Rohini on 01.02.12 vide RC No. 10/21/12. He has not been cross examined on behalf of accused despite grant of opportunity.
PW8 SI Mukesh Kumar is the IO of this case. He deposed about the entire investigation carried out by him. He stated that on receipt of information of DD no. 20PP Ex PW6/A on 18.12.11, he had reached M.V. Hospital and collected MLC of injured Shiv Kumar @ Shibu Kumar on which he recorded statement of said injured and got the FIR registered through Ct. Sachin (PW2). On the next day i.e. 19.12.11, he alongwith Ct. Sachin visited the house of injured Shiv Kumar @ Shibu Kumar and he had prepared site plan Ex.PW8/A at the instance of said injured who also produced his shirt and vest which were taken into possession after preparing their pullandas sealed with the seal of MK. He also deposed about the arrest of the accused persons and the recovery of respective articles at their instance from their respective houses and the relevant proceedings /written work carried out by him in this regard.
PW8 also deposed that on 10.01.12, he had moved an application Ex.PW8/B before CMO of M.V. Hospital for providing blood sample of complainant and accordingly, blood sample samples were provided to him in three parcels sealed with the seal of MS M.V. Hospital which were seized by him vide memo Ex PW8/C. On 25.01.12, he had also State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 13 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 taken out sealed pullanda of knife from MHC(M) through HC Gopal (PW1) and moved an application Ex.PW8/D for seeking subsequent opinion from the concerned doctor on which subsequent opinion Ex. PW8/E was given by doctor on back side of the MLC of injured Shiv Kumar @ Shibu Kumar by opining that injuries were possible by the said knife. He also correctly identified all the accused persons as well as case property Ex P1 to P5 during trial. He has been cross examined at length on behalf of accused persons.
Medical Evidence: PW10 Dr. Saurabh Kumar stated that injured Shiv Kumar @ Shibu Kumar was got admitted in M.V. Hospital on 18.12.11 by HC Ranjit (PW7) of PCR and the said injured was examined by Dr. Kumar Saurabh Gaur vide MLC No. 4925/11. He identified the signatures of said doctor on the MLC Ex. PW10/A at points A to D. The injured was found to be having lacerated wound approximately 1.5 x.5 cm in size at right thoracic region near 8th rib in mid clavicular region, bevelled edges subcutaneous fat protruding out, no subcutaneous emphysema. However, he claimed that there was no fracture ribs and there was no evidence of pneumothorax.
PW10 also identified the signature of Dr. Kumar Saurabh Gaur on his subsequent opinion Ex PW8/E appearing on the back side of MLC Ex.PW10/A wherein it is opined that injury sustained by injured Shiv Kumar @ Shibu Kumar were possible with the knife Ex P1 produced before him. During cross examination, PW10 explained that Dr. Kumar State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 14 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 Saurabh Gaur had already left the services of M.V. Hospital long time back and his present whereabouts were not available in the hospital.
PW11 Dr. Amit Shokeen deposed that on 10.01.12, one patient namely Shiv Kumar @ Shibu Kumar was produced before him for taking his blood sample and on the basis of application Ex.PW8/B, he took blood sample of said patient vide MLC Ex. PW11/A and handed over the same to the police. He has not been cross examined by accused persons despite grant of opportunity.
Arguments advanced & Case law cited While opening the arguments, Ld APP argued that prosecution has been able to establish the charges levelled against all the four accused persons beyond reasonable doubt. While so arguing, Ld APP referred to the testimonies of prosecution witnesses examined during trial more particularly the testimonies of PW3 namely Sh. Upender Kumar and PW4 Sh. Shiv Kumar @ Shibu Kumar (complainant/injured). Ld. APP submitted that all the four accused persons have been duly identified by both the public witnesses during trial. He further argued that there is recovery of knife Ex P1 used by accused Arjun while committing the offence of robbery and therefore, accused Arjun is also liable to be convicted in respect of offence U/s 397 IPC. It was further argued that there is recovery of mobile phone Ex P3 at the instance of accused Sonu and cash amount of Rs. 90/ and Rs. 70/ at the instance of accused Ashok and Sanni from their respective houses.
State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 15 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 On the other hand, it has been argued by both the Ld defence counsels appearing on behalf of accused persons that prosecution has failed to prove its case beyond shadow of doubt. They argued that prosecution story is full of lies and there are several material contradictions appearing in the testimonies of prosecution witnesses which create reasonable doubt in favour of the accused persons.
The first and foremost argument raised on behalf of accused persons is that testimony of PW3 Sh. Upender Kumar does not inspire confidence as he claimed to have run away from the place of occurrence when two of the assailants had caught hold of his uncle namely Shiv Kumar @ Shibu Kumar (PW4) but still, he identified all the four accused persons during trial which is beyond comprehension. While referring to the relevant part of the cross examination of PW3 wherein he claimed that except the beatings given by accused persons to his uncle Shiv Kumar @ Shibu Kumar, he did not know as to what happened after leaving the spot by him during beatings, Ld. defence counsels submitted that said witness did not have any opportunity to see the faces of all the four assailants but still he identified all the four accused persons as assailants who were present at the time of occurrence. However, the said argument is found to be without any merit. PW Sh Upender Kumar, in his chief examination itself, deposed that when he alongwith uncle Shiv Kumar @ Shibu Kumar (PW4) were returning to their house after purchasing jacket at weekly market of Metro Vihar, all of a sudden two boys came there and started abusing and beating them without any reason. During the course of said State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 16 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 incident, two more boys, who were the companions of earlier ones, also reached there. When the boys who had initially came there caught hold of his Chacha, he got afraid and immediately ran from there to seek help. In view of said portion of testimony of PW3, it is crystal clear that the said witness had an occasion to see all the four assailants before running away from the place of occurrence for the purpose of seeking some help.
The next bone of contention raised by Ld defence counsels is that there are contradictions appearing in the testimonies of both the public witnesses i.e PW3 and PW4. The contradictions as pointed out on behalf of accused are that PW3 claimed to have met PW4 Shiv Kumar @ Shibu Kumar and police staff alongwith all the four accused persons in police post on 19.12.11 i.e on next day of the incident in question. While the testimony of PW4 Shiv Kumar @ Shibu Kumar is completely silent on this aspect. Another contradiction as pointed out by Ld defence counsels is that PW4 Sh. Shiv Kumar @ Shibu Kumar testified during cross examination held on 16.11.13 that no public person from the market situated near the place of incident, was summoned to join the investigation whereas PW8 SI Mukesh Kumar, who is IO of the case, claimed during chief examination itself that he had requested 45 public persons to join the proceedings but none agreed. However, the aforesaid contradictions as pointed out on behalf of accused, are minor contradictions which do not go to the root of the prosecution case so as to disbelieve the testimonies of prosecution witnesses in entirety. It is well settled law that minor contradictions are immaterial and no benefit should be given to an accused on the said aspect. State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 17 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 Still if any authority is required then reference with advantage can be made to the judgment reported at "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another" wherein it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such 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".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial".
At this juncture, it is appropriate to refer to the provision contained in Section 134 of Indian Evidence Act which expressly provides that no particular number of witness shall in any case be required for proving any fact. In the matter titled as "Sheelam Remesh & Anr. Vs. State of A.P." reported in JT 1999 (8) S.C. 537, it was observed by Hon'ble Apex Court as under: State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 18 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 "Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence".
It has been held by Hon'ble Supreme Court in a case of State of Maharastra Vs. Krishnamurti, A.I.R 1981 S.C.617 wherein it has been held that "A minor discrepancy between the statement of a witness in examination in chief and in cross examination should not affect his credibility" and State of Punjab Vs. Wassan Singh A.I.R 1981 S.C.697 where in it has been held that Truthfulness should be tested on the whole."
As has been held by Hon'ble Apex Court in the matter titled as "State of Rajasthan Vs. Smt. Kalki & Anr." reported at (1981) 2 SCC 752, in the depositions of witnesses there are always normal discrepancies however honest and truthful the witnesses may be and 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.
The next limb of argument raised on behalf of accused is that the story of prosecution as mentioned in the charge sheet, is bundle of lies and same has been concocted by complainant in collusion with the police for getting the accused persons falsely implicated in the case. In support of said contention, Ld defence counsels referred to relevant portion of cross examination of PW3 Upender Kumar wherein he claimed that there were State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 19 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 about 300350 persons present in the market situated near the place of incident but still, none of those public persons came forward to rescue them. They also referred to relevant portion of cross examination of PW4 Shiv Kumar @ Shibu Kumar wherein he also stated that there were about 250300 public persons in the market but none of them tried to intervene at the time of incident despite his request. Ld. defence counsels submitted that it was quite impossible to commit incident of robbery at the time and place where hundreds of public persons happened to be present in nearby market. At the first instance, the said argument appears to be impressive but same does not hold any water. As per the case of prosecution as also deposed by both the public witnesses namely PW3 Upender Kumar and PW4 Shiv Kumar @ Shibu Kumar, one of the assailants whose name was subsequently revealed as Arjun, was having knife with him. In this backdrop, it cannot be expected from any public person to put his /her life in danger by rushing to the help of complainant and his nephew. It is quite natural that all public persons would be more interested to save themselves from the clutches of the offenders instead of putting their own life in danger.
Ld. defence counsels argued that copy of FIR has not been properly proved as concerned Duty Officer who recorded the FIR, has not been examined during trial and copy of FIR has been exhibited by PW8 SI Mukesh Kumar (IO). They also argued that Certificate U/s 65B of Indian Evidence Act has also not been proved without which the contents of FIR cannot be read into evidence. On the other hand, Ld. Addl. PP pointed out State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 20 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 that Duty Officer namely HC Ram Niwas was reported to have expired on 03.03.13 when summons were issued to him during trial and thereafter, prosecution led secondary evidence to prove the copy of FIR through IO of this case.
The submission made by Ld. Addl. PP is justified that HC Ram Niwas who had recorded the FIR in question, was reported to have expired on 03.03.13 on summons issued to him during trial. The request made by prosecution for recalling PW8 SI Mukesh Kumar U/s 311 Cr.P.C. for proving the copy of FIR, endorsement made by Duty Officer, etc. was allowed on 02.05.14 without any objection being raised by accused persons. Not only this, all the four accused persons did not put any question whatsoever in cross examination of PW8 SI Mukesh Kumar on the aspect of registration of FIR. In other words, the computerized copy of FIR in question as also endorsement on rukka made by HC Ram Niwas (since died) had been duly proved by PW8 SI Mukesh Kumar by way of secondary evidence without any objection from the side of accused persons. Therefore, accused should not be allowed to raise any objection to the exhibition of FIR at this stage.
There is no substance in the next arguments of ld. defence counsels that benefit of doubt should be given to the accused as no judicial TIP was got conducted by IO despite the fact that accused persons were not apprehended from the spot. It has been duly proved in the testimony Sh. Shiv Kumar @ Shibu Kumar (PW4) that he was present at the place of arrest of all four accused persons on 19.12.2011 and he had duly identified State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 21 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 all of them at that very moment. That being so, there was no occasion for getting the judicial TIP of accused persons conducted by the investigating agency.
The next bone of contention raised by ld. defence counsels was that instead of making PCR call at 100 number or seeking for help, the conduct of PW3 namely Sh. Upender Kumar in running from the spot is quite unnatural. They further argued that PW4 Sh. Shiv Kumar @ Shibu Kumar (complainant) also did not call the police and kept on waiting for his relatives to reach the spot, which is again quite unnatural. On the basis of these submissions, ld. defence counsels argued that testimonies of PW3 and PW4 should not be believed. However, Court does not find any merit in those submissions. It has been duly explained by PW3 Sh. Upender Kumar in his cross examination that he could not call at 100 number when incident took place as there was no balance in his mobile phone and there was no PCO/STD Booth near the place of incident whereas the mobile phone of PW4 had already been robbed by the assailants. Moreover, PW4 had also sustained injuries on account of stab injury given on his chest and beatings given by the assailants. It was the brother of PW4 who had made PCR call when he alongwith PW3 had reached the spot on which PCR van reached there and removed PW4 to M.V. Hospital.
Ld. defence counsels also attempted to create doubt in the case of prosecution by submitting that blood stained clothes were not handed over by PW4 Sh. Shiv Kumar @ Shibu Kumar to the police in the hospital on the date of incident itself. In this regard, they referred to the relevant State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 22 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 portion of the testimonies of PW3 as also that of PW4 wherein it has come that clothes i.e. Tshirt and Baniyan (Vest) were handed over by PW4 to the police only on next day of the incident after same were got washed off. However, the said argument also does not carry any force. The incident had taken place somewhere between 7 / 7.30 pm on 18.12.2011 and injured Shiv Kumar @ Shibu Kumar had been removed to M.V. Hospital by PW7 after 8 pm on that day. IO i.e. PW8 SI Mukesh Kumar had reached the hospital and conducted relevant proceedings i.e. recording statement Ex.PW4/A of injured and getting the FIR registered in the case. The rukka Ex.PW8/PX shows that it was sent through Ct. Sachin (PW2) at 11.50 pm. Thus, no fault can be attributed on the part of investigating agency for not seizing the blood stained clothes of PW4 Sh. Shiv Kumar @ Shibu Kumar on the date of incident. It has come on record that PW4 had already been discharged from the hospital in the morning of 19.12.2011 when PW8 SI Mukesh Kumar reached the hospital. By that time, PW8 SI Mukesh Kumar alongwith PW2 Ct. Sachin reached the house of PW4 Shiv Kumar @ Shibu Kumar, he had already washed off his clothes being simple layman without realizing that his blood stained clothes were material piece of evidence and were required to be seized by the police. The FSL result Ex.PX also corroborates the ocular evidence which has come on record in this case as the said result states that the shirt (which was given Ex. '5a') was having light yellowish brown stains and banian (which was given Ex. '5b') was having light brown stains.
Another bone of contention of ld. defence counsels is that State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 23 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 there is a discrepancy on the point of arrival of accused Sanni and Sonu at the place of occurrence as also on the aspect of recovery of mobile phone from the house of accused Sonu or Sanni due to which benefit of doubt should be given to said two accused. They also referred to relevant portion of cross examination of PW4 conducted by Ld. Addl. PP on those aspects wherein PW4 denied the suggestions that it was accused Sanni who had initially come with accused Ashok at the place of occurrence or that it was accused Sonu who had robbed his mobile phone and subsequently, got recovered the said mobile phone from his house. However, the said argument also does not carry much weight for the reason that all four accused persons have been correctly identified by both the public witnesses i.e. PW3 Sh. Upender Kumar and PW4 Sh. Shiv Kumar @ Shibu Kumar to be the assailants involved in the commission of offence.
The law on the point of testimony of stamped witness is now well settled. 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 of the crime and because the witness will not want to let his actual assailant to 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.
In the matter titled as Waman Vs. State of Maharashtra, (2011) 7 SCC 295, Hon'ble Apex Court held as under: State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 24 of 32
FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 "It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the Courts have to scrutinies their evidence meticulously with a little care".
In the matter titled as Raju @ Balachandran & Ors. Vs. State of Tamil Nadu reported at 2012 XII AD (S.C.) 1 held as under: The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny.
Not only this, PW3 deposed on the lines of prosecution story by testifying that accused Ashok and Sanni had initially come to the spot and they were subsequently joined by remaining two accused namely Arjun and Sonu. Court agrees with the submission made by Ld. Addl. PP that PW4 had been confused on said aspects due to lapse of considerable period as incident had taken place on 18.12.2011 and PW4 entered into witness box on 16.01.2013 i.e. after a gap of more than one year. Moreover, the evidence available on record show that PW4 was beaten up by the accused State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 25 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 persons and he was stabbed on his chest with knife by one of the accused, due to which he might have got confused about the particular act committed by particular accused. Furthermore, this very fact goes to show that the testimony of PW4 is quite plain and natural. Had PW4 Shiv Kumar been tutored by the investigating officer to give particular statement during trial, he would not have committed this mistake and he would not have denied the relevant suggestions given by Ld. Addl. PP to him. For all these reasons, the testimony of PW4 cannot be thrown out in its entirety and cannot be disbelieved by the Court.
Ld. defence counsels argued that there is discrepancy appearing in the testimony of PW4 Shiv Kumar on the point of recovery of mobile phone from the house of accused Sanni or Sonu due to which recovery of mobile phone has become doubtful. However, the said argument is again liable to be rejected for the reason that prosecution has examined three witnesses namely PW2 Ct. Sachin, PW4 Shiv Kumar and PW8 SI Mukesh Kumar for proving the recovery of robbed articles at the instance of accused persons from their respective houses. PW2 and PW8 have deposed on the lines of prosecution story by stating that mobile phone was recovered at the instance of accused Sonu from his house. Out of said three witnesses, accused persons did not cross examine PW2 Ct. Sachin at all despite grant of opportunity whereas they could not impeach the testimonies of other two witnesses through litmus test of cross examination. In other words, the remaining two prosecution witnesses successfully withstood the test of cross examination.
State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 26 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 Another argument of ld. defence counsels is that name of injured is Shiv Kumar as per case of prosecution whereas MLC Ex. PW10/A mentions the name of patient as Shibu Kumar. The said argument is totally misconceived and does not hold ground as the name of father of patient is same as that of injured Shiv Kumar i.e. Sh. Hari Shankar. Moreover, it has been duly explained by PW4 Sh. Shiv Kumar during his cross examination that his name is Shibu Kumar and not Shiv Kumar and the IO had written his name as Shiv Kumar instead of Shibu Kumar. He has also signed his statement recorded during the trial as ' Shibu Kumar'. Thus, there is no discrepancy as such in the name of injured and his MLC Ex. PW10/A proved during trial.
The ocular evidence available on record is also duly corroborated by medical evidence produced by prosecution during trial. The MLC Ex.PW10/A of injured i.e. PW4 Shiv Kumar @ Shibu Kumar shows that he was got admitted in M.V. Hospital with alleged history of being stabbed in right thoracic region at 7 pm on 18.12.2011 near Metro Vihar Colony. The said MLC further shows that said injured had received cut lacerated wound of the size of 1.5 cm x .5 cm at right thoracic region.
It is nowhere case of accused persons that PW3 Sh. Upender Kumar and PW4 Sh. Shiv Kumar @ Shibu Kumar were having any previous enmity with them or even that they were previously known to either of them. That being so, there is reason as to why both the public witnesses would falsely implicate the accused persons or would wrongly identify them during trial to be the assailants involved in the commission of State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 27 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 offence while sparing the actual culprits of the crime.
In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the witnesses including police officials. Although the accused persons in their statements claimed that they are innocent and that case property was planted upon them by the police but the defence taken by the accused persons does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would do this. If the accused persons want this Court to believe that they have been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for their false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe their version by simple bare allegation that they are falsely implicated. At least some reason should have been put forth by the accused persons to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out the testimony of witnesses.
In the light of aforesaid discussion, Court is of the considered view that prosecution has been successful in bringing home guilt of all the four accused persons namely Arjun, Sanni, Ashok @ Puppy and Sonu in respect of offence u/s 394/34 read with section 392 IPC.
As regards the offence u/s 397 IPC, it was argued by ld. Addl. PP that there has been recovery of knife Ex.P1 at the instance of accused State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 28 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 Arjun. He further submitted that PW4 Shiv Kumar @ Shibu Kumar has also identified accused Arjun to be the person who had inflicted stab injury on his chest with knife and thus, accused Arjun should also be convicted in respect of offence u/s 397 IPC.
On the other hand, ld. defence counsel of accused Arjun argued that knife Ex.P1 has been falsely planted upon said accused. In support of his said submission, he referred to Court observation made by Ld. Predecessor of this Court while recording statement of PW2 Ct. Sachin where it is observed that knife Ex.P1 produced during trial, is new one. Similar observation has been made by Ld. Predecessor of this Court in the statement of PW8 SI Mukesh Kumar (IO). Ld. defence counsel further argued that knife Ex.P1 is a kitchen knife as per prosecution's case and therefore, it cannot be termed as 'deadly weapon' which is sinequa non for convicting a person in respect of offence u/s 397 IPC. He also submitted that nature of injuries sustained by PW4 Shiv Kumar @ Shibu Kumar is simple as per MLC Ex.PW10/A and there is no injury on the chest of PW4 as claimed by him during trial. He further argued that there was no blood appearing on said knife and FSL result is also silent on this aspect due to which prosecution has failed to establish the offence u/s 397 IPC against accused Arjun.
The bare perusal of Section 397 IPC makes it crystal clear that it stand proved only when offender uses any deadly weapon or causes grievous hurt or attempt to cause death or grievous hurt to any person at the time of committing robbery or dacoity. It is no more resintegra that State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 29 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 recovery of deadly weapon used in the commission of robbery is one of the essential ingredients in order to prove the said offence.
It has been held by our own High Court in the matter titled as 'Charan Singh Vs. The State' reported at 1988 Cr.L.J NOC 28 (Delhi) that in the absence of recovery of knife which was allegedly used at the time of commission of the robbery/dacoity, it cannot be presumed that the knife so used was a deadly weapon. The Hon'ble High Court observed in the said judgment as under: "............. At the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under S. 397 the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife used by the accused was a deadly weapon. In the absence of such an evidence and particularly, the non recovery of the weapon would certainly bring the case out of the ambit of S.397............."
Similar view has been taken by our own High Court in subsequent judgments reported at MANU/DE/3149/2009 and 2011 Criminal Law Journal 901.
Now adverting back to the present case. As per the case of prosecution, accused Arjun gave stab injury in the chest of PW4 Shiv Kumar @ Shibu Kumar and blood had oozed out of his body due to which State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 30 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 his Tshirt and Baniyan (Vest) had got blood stains. PW4 had deposed on these aspects and same are also corroborated by FSL result Ex.PX. In this backdrop, there would have been blood stains on the knife used at the time of committing robbery by accused Arjun. However, the knife Ex.P1 claimed to have been recovered at his instance, did not have any blood on it. Rather, the said knife was found to be new one as also observed by Ld. Predecessor of this Court in the testimonies of PW2 Ct. Sachin and PW8 SI Mukesh Kumar. FSL result also nowhere shows that there was any blood stain found on the said knife (which was given Ex.'4') at the time of its examination by FSL authority. It was for the prosecution to explain about the aforesaid discrepancies but no explanation whatsoever is forthcoming from the side of prosecution in this regard. Moreover, knife Ex.P1 undisputedly is a kitchen knife, it is quite apparent from its sketch Ex. PW2/N and seizure memo Ex.PW2/A wherein IO i.e. PW8 SI Mukesh Kumar himself has described it to be a kitchen knife. PW4 has admitted in his cross examination on behalf of accused Arjun that said kitchen knife is ordinary one which is readily available in market. In view of this, the possibility of planting of vegetable knife upon accused Arjun cannot be ruled out. Thus, accused is entitled to benefit of doubt in this regard. Furthermore, there is no cogent evidence to show that vegetable knife Ex.P1 was deadly weapon within the meaning of section 397 IPC due to which also, Court is of the view that benefit of doubt should be given to accused Arjun. For all these reasons, Court is of the view that prosecution has failed to establish the charge in respect of offence u/s 397 IPC against State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 31 of 32 FIR No. 402/11; U/s 394/397/34 IPC; P.S. Shahbad Dairy DOD: 30.06.2014 accused Arjun.
In the light of aforesaid discussion, accused Arjun is hereby acquitted in respect of offence u/s 397 IPC by giving benefit of doubt. However, all the four accused persons namely Arjun, Sanni, Ashok @ Puppy and Sonu stand convicted in respect of offence u/s 394/34 read with Section 392 IPC.
Announced in open Court today
dt. 30.06.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts,
Delhi: 30.06.2014
State V/s Arjun etc. ("Convicted U/s 394/34 IPC") Page 32 of 32