Delhi District Court
Fir No. 251/12; State vs . Sahadat Page 1 Of 14 on 26 March, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 2/13
FIR No. 251/12
P.S. Jahangir Puri
U/S: 392/394/397/411/34 IPC
STATE
Versus
SAHADAT
s/o Sheikh Rekhu
r/o Jhuggi No. H4/107,
Jahangir Puri, Delhi.
Date of Institution: 04012013
Date of arguments: 26032014
Date of judgement: 26032014
JUDGMENT
1. The case of the Prosecution, in brief, is that on receipt of DD no. 6A, SI Sandeep Kumar along with Ct. Vinayak reached at the spot at G587, Jahangirpuri where they came to know that injured was shifted to BJRM hospital. Thereafter, SI Sandeep along with Ct. Vinayak reached BJRM hospital where injured Ashok Kumar FIR No. 251/12; State Vs. Sahadat Page 1 of 14 was found admitted with alleged history of assault and his MLC was obtained. Injured Ashok Kumar gave his statement that he sells vegetables in Azadpur market. On 27092012 at about 5:30 am, he took rickshaw from his house for going to Azadpur Market and when he reached Shah Alam, near Adarsh Nagar crossing, four boys came from ahead and one of them obstructed the way of rickshaw, another boy caught him from behind, the third boy attacked his with knife on his hand and hip and took out the mobile phone make Nokia from the pocket of his shirt. When blood oozed out from the hand of complainant, the fourth boy took out Rs. 8,000/ from the right inner pocket of his pant and gold ring was also taken out from the right hand of his hand. Thereafter, all of them ran towards G Block jhuggis and the rickshaw puller brought outside the gali. The nephew of complainant took him to BJRM hospital and called the police at 100 number. On this statement and after seeing the MLC, FIR u/s 394/397/34 IPC was got registered. Statements of witnesses were recorded u/s 161 Cr.P.C. On 06102012, accused Shahdat was arrested from in front of Sai Baba temple, near Shah Alam baandh at the instance of complainant. Disclosure statement of accused recorded. Mobile phone was recovered at the instance of accused from his jhuggi and it was seized. On 10102012, FIR No. 251/12; State Vs. Sahadat Page 2 of 14 accused Ashfaq was apprehended and he got recovered the knife used in the crime which was taken into possession. Challan against accused Ashfaq was filed before JJBII. Accused Fozer and Ravibul could not be arrested as they were absconding. Doctor gave the opinion on the MLC of injured as grievous. After completion of investigation, chargesheet against accused Shahdat was filed u/s 392/394/397/411/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/394/34 & 411 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined nine witnesses. PW1 Ashok Kumar, in his testimony, proved his statement Ex. PW1/A; arrest memo and personal search memo of accused Sahadat as Ex. PW1/B and PW1/C; disclosure statement of accused Sahadat as Ex. PW1/D; pointing out memo of place of occurrence by accused as Ex. PW1/E; seizure memo of mobile phone of PW1 as Ex. PW1/F; receipt of said mobile phone as Ex. PW1/G and identified the mobile phone as Ex. P1. PW3 HC Jagbir Singh, in his testimony, proved the FIR as Ex. PW3/A and endorsement on the rukka as Ex. PW3/B. PW6 HC Jai Pal, in his FIR No. 251/12; State Vs. Sahadat Page 3 of 14 testimony, proved the entries no. 3455 & 3458 of register no. 19 as Ex. PW6/A and PW6/B. PW8 Dr. Sachin, SR, Ortho, in his testimony, proved the MLC of Ashok Kumar as Ex. PW8/A. PW9 SI Sandeep Kumar, in his testimony, proved DD no. 6A as Ex. PW9/A; rukka as Ex. PW9/B; site plan as Ex. PW9/C.
4. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused opted not to lead defence evidence.
5. I have heard Ld. counsel for the accused and Ld. APP for State and have perused the entire records.
6. The Ld. counsel for the accused has argued that the complainant / PW1, in his examination in chief, did not state the exact date of arrest of the accused Sahadat at his instance. Whereas, in his further examination in chief on the same day after 02.00 pm, he stated the exact date i.e. 06.10.2012 meaning thereby he is the tutored witness. PW1 did not tell the description of four robbers to the police in his statement Ex.PW1/A. The police did not record statement of relative of PW1 when his statement was recorded in LNJP Hospital. No Doctor of LNJP Hospital has been cited as a witness. PW1 stated that he went to the Police Station. Whereas, PW9 / IO stated that he went to the house of PW1/injured. FIR No. 251/12; State Vs. Sahadat Page 4 of 14 No independent witness has been joined in the investigation. There was no recovery from the accused. PW6 stated that seal of SK was not handed over to him at the time of depositing the exhibits with him. Meaning thereby, there are chances of tampering with the seal. All the memos were prepared while sitting in the PS. The accused did not make any disclosure statement. The signatures of the accused were taken on the blank papers which were converted into documents to falsely implicate him in this case. There are major contradictions in the testimony of PWs. The IO has not fairly conduct the investigation. The Ld. counsel for the accused, in support of his arguments, has relied upon the judgement reported in the case of Prithvi Singh Vs. State, 2011 [1] JCC 272.
7. The Ld. Addl. PP for the State has argued that when the complainant / injured reached in his rickshaw at Shah Alam, near Adarsh Nagar Crossing on 27.09.2012 at about 05.30 am, the accused along with his associates came from front side and robbed him. At the time of robbery, one of the associates stabbed with the knife on the person of complainant and caused grievous injury on his hand and hips. The knife was recovered from Ashfaq (juvenile) and a separate chargesheet has been filed against him before the JJB. The site plan was prepared on the pointing out of Ashok FIR No. 251/12; State Vs. Sahadat Page 5 of 14 Kumar / complainant. The accused also got recovered one mobile phone make Nokia. The accused cannot take benefit of minor contradictions or the faulty investigation, if any. The Ld. Addl. PP for the State in support of his arguments, has relied upon the judgments reported in the case of Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan 2008 IV AD (SC) 4543; Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991, Cri.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI.L.J. 3889.
8. PW1 Ashok Kumar in his examinationinchief deposed that on 27.09.2012, he left his residence at about 5.30 am and took a rickshaw to go to Azadpur Mandi, When his rickshaw reached at Shah Alam near Adarsh nagar crossing, four boys came from front side. One out of said four boys, stopped the rickshaw, one out of them caught hold him from his back side and their third associate gave knife blows to him on his hand and hip and took out his mobile phone make Nokia from the pocket of his shirt and one out of them took Rs. 8000/ cash from the right side inner pocket of his pants. They also took his one gold ring which was there in the finger of his right hand and thereafter, gave a cut on the fingers of his right hand FIR No. 251/12; State Vs. Sahadat Page 6 of 14 with the knife for which PW1 had undergone plastic surgery. PW1 further stated that thereafter, all the said four boys along with the robbed articles ran away towards GBlock jhuggies. The said rickshaw puller took him back to the street in which his residence was situated. From there his nephew Kamal took him to BJRM Hospital and dialled number 100. Police recorded his statement Ex.PW1/A. PW1 correctly identified the accused and stated that in the month of October the date may be 09 or 10 but PW1 was not sure, at his instance and on his identification, accused Sahadat was arrested by the police when after seeing him, PW1 had called the police at Sai Baba Mandir. PW1 proved the arrest and personal search memo of the accused as Ex.PW1/B and Ex.PW1/C respectively. PW1 could not tell the specific role played by each accused in the commission of said robbery as it was a sudden attack but perhaps accused Sahadat was the person who had given him the knife blows. Thereafter, accused Sahadat led the police party to the jhuggi and produced one mobile phone make Nokia, which was identified by him, to be the same which was robbed from the possession of accused. The said mobile phone was sealed and seized by the IO. PW1 proved the disclosure statement of accused Sahadat as Ex.PW1/D and the pointing out memo of the place of FIR No. 251/12; State Vs. Sahadat Page 7 of 14 occurrence by accused Sahadat as Ex.PW1/E. PW1 also proved the seizure memo of his mobile phone, recovered at the instance of accused Sahadat as Ex.PW1/F. PW1 further stated that he had given the receipt of the said mobile phone dt. 02.02.2012, which was in the name of his son Dheeraj Kumar to the IO and proved the same as Ex.PW1/G. IO had prepared site plan at his instance after his discharge from the hospital on 30.09.2012. PW1 also stated that accused Sahadat was arrested at his instance on 06.10.2012. PW1 identified the mobile make Nokia Ex. P1 to be the same which was robbed by the accused Sahadat along with his other associates from his possession and was later on recovered at the instance of accused Sahadat in his presence.
9. During crossexamination by the Ld. counsel for the accused, PW1 denied the suggestion that his clothes were never blood stained or that because of this reason, he did not hand over the same to the police. PW1 further stated that nobody gathered at the spot at the time of incident as it was early morning hours and it was little dark. PW1 denied the suggestion that no such incident took place or that because of this reason, no public person gathered at the spot. PW1 used to go in B block parking in Mandi for his business. PW1 further stated in his crossexamination that the spot FIR No. 251/12; State Vs. Sahadat Page 8 of 14 was at a distance of about 500600 meters from his residence. The spot was an open place and no residential houses were there. PW1 also denied the suggestion that it was a residential area at Shah Alam near Adarsh Nagar crossing. The spot was near the Mandir of Sai Baba. PW1 volunteered that Mandir of Sai Baba was also at a distance from the spot. PW1 was discharged from LNJP hospital on 30.09.2012 as he was referred from BJRM Hospital to LNJP hospital on 27.09.2012 itself. PW1 also stated in his crossexamination that his first statement was recorded by the police at BJRM Hospital at about 08.00 am. His second statement was recorded by the police at about 11.00 am on 27/28.09.2012. PW1 also denied the suggestion that no mobile phone was recovered in his presence on the pointing out of accused Sahadat or that accused was not arrested in his presence. PW1 further denied the suggestion that no place of occurrence was pointed out by the accused in his presence. PW1 also denied the suggestion that accused did not give any disclosure statement in his presence.
10. PW2 Kamal in his examinationinchief deposed that on 27.09.2012, at about 06:00 a.m., his uncle Ashok Kumar came to their house. PW2 saw him who was bleeding from his hands and legs. Thereafter, PW2 took him to BJRM Hospital on a two wheeler FIR No. 251/12; State Vs. Sahadat Page 9 of 14 scooter and made a call at number 100. After sometime, police came at the hospital and made enquiries from his uncle and recorded his statement and statement of PW2 was also recorded by the police.
11. During crossexamination by the Ld. counsel for the accused, PW2 stated that he alone took his uncle to the hospital and at that time no other person came to know about the incident and no other family members were aware of this fact at that time that he took his uncle to which hospital. PW2 further stated that he in his statement had stated to the police that blood was oozing from the hands and legs of his uncle.
12. PW1 is not only the victim but the natural witness and he correctly identified the accused Sahadat who was with his associates when giving knife blows to him on his hand and hip at the time of committing robbery. In Gulshan Vs. State through Govt. of NCT of Delhi, 2010 (1) JCC 562, it was held that identification in a court is a substantive piece of evidence. In the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 FIR No. 251/12; State Vs. Sahadat Page 10 of 14 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted. In the present case, the testimony of PW1 has not only inspired the confidence but he is also trustworthy. The clear and consistent stand of PW1 about the presence of the accused Sahadat at the time of incident and his identification by PW1 creates no doubt in the testimony of PW1.
13. PW4 Dheeraj Kuamr in his examinationinchief deposed that on 02.02.2012, he had purchased one mobile phone, make Nokia100 from Sandeep Telecom and mobile repairing shop, Jahangir Puri for a sum of Rs. 1250/ in cash. After purchasing the same PW4 handed over the said mobile phone make Nokia Black colour to his father Sh. Ashok Kumar/ PW1 and it was being used by FIR No. 251/12; State Vs. Sahadat Page 11 of 14 his father. On 27.09.2012, the said mobile phone was robbed from his father and thereafter, police met him and recorded his statement in this regard. The receipt Ex. PW1/G of the phone was in his name and same was handed over to the police by his father. Meaning thereby, the purchase of the said mobile by PW4 and handing over it to his father/ PW1 has also been proved on record.
14. PW9 SI Sandeep Kumar stated in his examination in chief that after arrestation of the accused, he led them to his house no. H4/107, Jahangirpuri from where he got recovered one mobile phone make Nokia and the same was taken into possession vide seizure memo Ex. PW1/F. PW1 identified the said mobile phone in the court as Ex. P1. PW9 denied the suggestion that accused was not arrested in the manner as stated by him or that he did not disclose such disclosure or that accused did not point out the place of occurrence or that no such incriminating was recovered from the possession or at the instance of accused. PW9 further denied the suggestion that all the writing work was done while sitting in the PS.
15. As far as the contradictions in the testimony of PWs as argued by Ld. counsel for the accused are concerned, the same are only minor contradictions which do not affect the merits of the case. Thus, the Prosecution case cannot be disbelieved on account of the FIR No. 251/12; State Vs. Sahadat Page 12 of 14 minor contradictions or inconsistencies in the testimony of PWs. In State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety.
16. The Ld. counsel for the accused further argued that the police has not conducted the investigation fairly and the investigation is defective. Whereas, Ld. APP for State argued that if there is a defective investigation, if any, the accused cannot get the benefit of it. It is pertinent to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this context, I would place a reliance upon the judgement reported in the case of Karnel Singh Vs. State of MP, AIR 1995 SC 2472=AIR 2004 SC 1920 it was held that in the case of defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
17. It is evident from the evidence discussed above that the prosecution has proved on record that the accused Sahadat FIR No. 251/12; State Vs. Sahadat Page 13 of 14 committed robbery of PW1 and at the time of inflicting knife injuries to him, the accused Sahadat was also with his associates on 27092012. The MLC of the accused has also been proved by the doctor/ PW8 who had given the opinion on the MLC regarding nature of injury as grievous. The injured/ PW1 correctly identified the accused Sahadat who committed the robbery. Nokia mobile phone was also recovered from the possession of the accused. Receipt of the mobile purchase has also been proved on record. The aforesaid judgement relied upon by the Ld. counsel for the accused is distinguishable from the facts and circumstances of the present case.
18. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused Sahadat beyond reasonable doubt. I, therefore, hold accused Sahadat guilty and convict him u/s 394/34 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 26032014 FIR No. 251/12; State Vs. Sahadat Page 14 of 14