Delhi District Court
State vs Ajay Singh on 18 October, 2023
IN THE COURT OF SH. PANKAJ ARORA-04: ADDL.
SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA:DELHI
SESSIONS CASE NO. 44510/15
CNR No. DLNE01-000102-2011
FIR No. 448/10
P.S. Jyoti Nagar
U/s : 394/397/34 IPC
& u/s 25/54/59 Arms
STATE
Versus
(1) AJAY SINGH
S/o Sh. Radhey Mohan
R/o C-88C, Gali No.5,
Amar Colony, Delhi (Declared Proclaimed Offender
vide order dated 05.12.2019.)
(2) GAURAV SINGH @ SONI
S/o Sh. Daya Chand
R/o H.No. E-551, Gali No. 13,
Ashok Nagar, Delhi
Date of Institution : 05-02-2011
Date of Argument : 03-10-2023
Date of Judgment : 18-10-2023
JUDGMENT
1. Brief facts of this case are that on 22.10.2010, an information was received at PS Jyoti Nagar that, "chor pakad rakha hai" at H.No. 251/A, Gali No. 3, Amar Colony. The said information was reduced into writing vide DD No. 84-B (Ex.PW4/A) and the same was marked to IO/HC Om Prakash. Thereafter, IO/HC Om Prakash alongwith Ct. Ramesh had reached at the spot where they were informed that injured had FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 1 of 36 already been taken to GTB Hospital. Thereafter, HC Om Prakash had proceeded to GTB Hospital while leaving Ct. Babu Lal, who was already performing patrolling duty in the area, for guarding the spot. Upon reaching GTB Hospital, IO collected MLCs of injured - Khadak Singh and Omwati, and accused Ajay Singh. Thereafter, IO proceeded to record the statement of injured Khadak Singh who stated that he is running a factory of seat covers at Amar Colony and he has three sons, namely, Sumit, Sunil and Sudhir, out of which Sumit is already married but residing separately in the neighbourhood. His younger son Sudhir is also married, who is residing with him in the same house. At 10:00 pm, her wife Omwati had gone to the house of his son Sumit in the neighbourhood for dropping her grand daughter. His two sons, namely, Sunil and Sudhir were watching TV on the ground floor. Wife of Sudhir was down with fever and she was lying in a room, while he was lying on the first floor. After some time, two persons entered his house through main door. Those persons came upstairs alongwith his two sons Sunil and Sudhir, who were in their custody. One person was having knife in his hand while the other was having daranti/ sickle (a tool used for harvesting), which they have put on the neck of his two sons. They started abusing him and gave 2-3 slaps. They both asked him about the key of his almirah and also asked him where he had kept the cash and jewelery while extended threat of killing him. He told them that the key was with his wife and she would come soon. After hearing the noise, his wife had also reached at first floor and upon seeing the accused persons, she started screaming. He caught hold knife and daranti with his both hands, consequently, the knife and daranti got broken due to FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 2 of 36 which he sustained injury on his hand. Meanwhile, the person who was holding daranti took out one country-made pistol from the dub of his pant. Immediately, he smashed on the country- made pistol due to which the country-made pistol fell down while his wife kept on screaming. The other person lifted the broken country-made pistol and twisted the hand of his wife and pushed her. That person had managed to flee from the motorcycle which was parked outside the home. The other person had also tried to flee, but at that time crowd had gathered in the gali, who had apprehended that person. The person revealed his name as Ajay Singh s/o Radha Mohan. The crowd had beaten him. His son Sumit had also arrived there. Police was called. PCR Van came and took him and his injured wife, and the accused Ajay Singh to the hospital. On the statement of complainant, present FIR came to be registered. Thereafter, investigation was handed over to 2nd IO/SI Puneet Bharti. Accused Ajay Singh was arrested at the instance of injured Omwati and produced in the concerned court. Thereafter, efforts were made to arrest his associate, namely, Gaurav @ Sonu. His NBWs were obtained and proceeding u/s 82 Cr.P.C. was also started. Charge-sheet was, therefore, initially filed only against accused Ajay Singh for the offences u/s 394/397 IPC. After taking cognizance, compliance of section 207 of Cr.P.C., the present case was committed to the Courts of Sessions vide order dated 31.01.2011. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court.
2. On local enquiry, it transpired that co-accused Gaurav Singh @ Soni had also caused road accident and case in this regard was pending trial in the court of Sh. Ankur Jain, the then FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 3 of 36 Ld. MM. On 20.07.2011, on the basis of secret information, accused Gaurav Singh was arrested after he attended his date in the court. His disclosure statement was recorded. On the following date, he was produced in the court. His PC remand was obtained and during PC remand, one country-made pistol with three live cartridges was recovered from his home at Beta Hazipur.
COMMITTAL
3. After completion of necessary formalities, supplementary charge-sheet was filed in the Court of Ld. Ilaqa MM qua accused Gaurav Singh for the offences u/s 394/397 IPC. After taking cognizance, compliance of section 207 of Cr.P.C., the present case was committed to the Courts of Sessions vide order dated 21.02.2012. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court. CHARGE
4. After hearing the arguments and finding that prima facie case is made out against the accused Ajay Singh for the offence punishable u/s 452/398/34 IPC, charge was framed by ld. Predecessor against accused, to which he pleaded not guilty and claimed trial.
5. After the committal of supplementary charge-sheet, charge was framed against the accused Gaurav Singh @ Soni for the offence punishable u/s 452/398/34 IPC and 25/27 Arms Act, charge was framed by ld. Predecessor against accused, to which he pleaded not guilty and claimed trial. During final arguments, on the submissions of Ld. Addl. PP for State and after hearing Ld. Defence counsel, charge for the offence punishable u/s 393/34 of IPC was also framed against the accused Gaurav Singh FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 4 of 36 @ Soni, to which he pleaded not guilty.
The prosecution got examined as many as 25 witnesses. PROSECUTION EVIDENCE
6. PUBLIC WITNESS/ EYE WITNESS
(i) PW1 Sh. Khadak Singh is the complainant in the present case. He deposed that on 22.10.2010 at about 10.00- 10.30 p.m, he was lying on a folding cot on the first floor's room of his house. At that time, his two sons namely Sunil and Sudhir were watching television on the ground floor of the house. His wife namely Smt. Omwati at that time had gone to drop his grand daughter to the house of his elder son (grand daughter's father) as he used to reside at a nearby house. Main door of the house was not fully closed (adhkhulla) as he had gone there for some while, so door was not closed. Both accused persons present in the court, one was having daranti in his hand and another was having knife in his hand came to upstairs his room keeping his two sons in their captive on the point of weapons they were having. Accused persons abused him and gave him beatings. Both accused asked him to handover keys of almirah and valuable like jewellery and cash otherwise they will kill his sons and him. He told them that keys are with his wife and she was not in the house and would come soon. He was very much frightened. In the meantime, he got up on the bed and saw his wife coming inside the house and due to fear, he started making hue and cry after catching hold of the knife and daranti in his hands. Consequent of holding daranti and knife, he sustained cut injuries. (Witness showed his cut marks apparent on his palms of both hands). Handle made of wooden got detached and metal portion remained in his hand. Accused Gaurav in the meantime FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 5 of 36 took out a pistol from his pocket (witness pointed out towards Gaurav correctly) and pointed out the same towards his but he gave push on his hand to which the country pistol fell down near the veranda. Accused Gaurav fled away from there after picking up the country made pistol from veranda. While fleeing, he had thrashed the head of his wife on the wall by catching hold of the hair of his wife. Right hand of his wife was also twisted and she has sustained fracture injuries. In the meantime, the public persons gathered hearing hue and cry made by them, the other accused Ajay Singh present in the court was caught hold by public persons in the gali, who was trying to escape. After apprehension of the accused Ajay, he was given beatings by the public persons. His daughter-in-law, who was down with fever, had called the PCR. Police officials reached on the spot, took him, accused Ajay and his wife to GTB Hospital. He was admitted in the GTB Hospital for four days, however, his wife was discharged on the same day. His statement Ex. PW1/A was recorded by the IO. He was given treatment in the hospital. The MLC Ex. PW1/B was also prepared wherein he put his LTI. Accused Ajay was having daranti whereas accused Gaurav was having knife in their hands when they entered in his house and came to him. He identified the case property i.e. one daranti and knife Ex. P1 with accused Ajay and Ex. P2 was with accused Gaurav.
He also identified one country made pistol Ex.P3 and two cartridges Ex.P4 (colly.) to have been used by accused Gaurav at the time of incident and had fallen down on the ground after his push and accused Gaurav had fled away with the pistol/firearm.
On 05.08.2011, he had identified the accused Gaurav in FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 6 of 36 Karkardooma Court near the staircase.
In his cross-examination, he denied the suggestion that Sunil was not with him or Sunil was with accused Ajay and Gaurav. He denied the suggestion that Sudhir, Sunil, Ajay and Gaurav had consumed liquor while sitting on the ground floor of his house on the day of incident. He denied the suggestion that when the above-said persons were consuming liquor, he came there and started abusing to his sons Sunil and Sudhir and misbehaved with accused Ajay and Gaurav. He further denied the suggestion that a quarrel had taken place between him and his sons on this issue. He denied the suggestion that the false case has been lodged against the accused persons with the connivance of the police. He denied the suggestion that only to avoid the case against him regarding giving of lathi blow to the accused Ajay, he had got accused persons falsely implicated in the present case. He denied the suggestion that he was deposing falsely.
(ii) PW2 Sunil is the eyewitness as well as son of the complainant. He deposed that on 22.10.2010 at about 10.00 p.m, he along with his younger brother Sudhir were watching a TV Programme on TV at his house. His mother had gone to his elder brother's house namely Sumit to drop his minor daughter. His father was taking rest on the first floor of the house. His bhabhi namely Kavita was down with fever so she was sleeping in the inside room. The main door of his house was opened as his mother had gone to drop Ishika. All of the sudden two persons, one was having daranti and another was having knife came inside their house. The person who was having daranti, put the daranti on his neck and another person who was having knife, put the same on the neck of his younger brother Sudhir. He FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 7 of 36 identified both accused in the court correctly. Both the accused asked him as to where the cash and jewellery of the house was kept and further they threatened them that if they raised alarm then they would be killed. He told that that cash and jewellery were lying on the first floor. Both the accused took them on the point of the arms stated above to the first floor. Both the accused got awaken his father and abused him, slapped him and asked to hand over the keys of the almirah. His father told that the keys were lying with his mother i.e Omwati. On hearing it, both the accused became angry and started to assault his father again, in the meantime, his mother came back to the house. She started making alarm on seeing the situation. His father caught hold the darati and knife by his hand. Thereafter, grappling took place between them and the accused. In the process of scuffling, the handle of knife and daranti got broken and thereafter, the accused Ajay who was having daranti took out katta (country- made pistol). His father hit on the hand of accused so the katta fell down there. The other accused Gaurav twisted the hands of his mother and smashed her head on the wall and fled away after picking up the katta. Accused Ajay was trying to flee away and he had reached near the staircase. In the meantime, many public persons had gathered there and apprehended accused Ajay. His father had sustained cut injuries. Accused Ajay was beaten up by the public persons. PCR van reached on the spot and took away accused Ajay and his parents to the hospital. He remained at the house. Some police officials came on the spot. He handed over the knife and daranti to that police officials. Police officials recorded his statement. IO prepared the sketch of daranti Ex. PW2/A and of knife Ex. PW2/B. IO prepared parcel and seized FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 8 of 36 the same through seizure memo Ex. PW2/C. He had shown the spot to the IO who prepared the site plan Ex. PW2/D. He identified the case property i.e. one daranti and knife already Ex. P1 and P2 respectively; and one katta Ex. P3 along with two live cartridges Ex. P4 and one fired cartridges (colly) as the same pistol which was shown by the accused accused and accused Gaurve had fled away with katta and katta was pointed out by accused Ajay.
Witness was not cross-examined despite having given an opportunity.
(iii) PW3 Smt. Omwati is the eyewitness as well as wife of complainant. She deposed that she was having three sons namely Sumit, Sunil and Sudhir. The occurrence is of 22.10.2010. Her elder son Sumit was married and residing at nearby house in no. A-253 with his family. Sudhir is also married and he used to reside with her and at the time of occurrence Sunil was unmarried and he used to reside with them. Her grand daughter namely Ishika d/o Sumit aged about 4 years used to reside with her in the daytime but used to sleep with her parents. At about 10.00 p.m, he had gone to drop her to her parents at A-
253. He was going to drop her and found his two sons namely Sunil and Sudhir were watching T. V programme on the ground floor. Wife of Sudhir namely Kavita was sleeping inside the room as she was not keeping well. Her husband Kharag Singh was sleeping on a folding cot on the first floor. As per routine without closing the main gate, she had gone to the house of Sumit when after about 10/12 minute she returned to her house A-251. She did not see Sudhir and Sunil in the room but T. V was on. She further deposed that she heard noise coming from FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 9 of 36 the first floor. She reached on the first floor and saw the two accused persons present in the court (correctly identified), one was having Darati and other was having knife in their hands and were saying her husband to handover the keys of the almirah. Her sons were made to stand in a corner on the point of weapons. Accused persons were also beating and abusing her husband. Seeing the seen of inside, out of fear, she screamed "bachao- bachao". Her husband had caught daranti and knife from his both hands. In that process, the wooden handle of daranti got detached. Accused Gaurav lifted the pistol from the veranda and fled away and in that process he had thrashed her head towards wall by catching hold her hairs and also twisted her right hand, which got fractured. On alarm raised by them, the public persons gathered. The accused Ajay was caught hold by the public persons in the gali when he tried to escape from there. Public persons were giving beatings to the accused Ajay. Her daughter- in-law Kavita had called at number 100. She, accused Ajay and her husband were taken to GTB Hospital. Accused Gaurav had pointed out country made pistol towards her husband after taking out the same from the dub of his pant. Her statement was recorded by the IO.
Witness was cross-examined but nothing material came out in his cross-examination.
(iv) PW5 Sh. Sudhir is also the son of the complainant. He deposed that on 22.10.2010 at about 10.00-10.30 p.m when he along with his brother Sunil was watching TV on ground floor and at that time, his mother had gone to the house of his elder brother to his daughter there and his father was sleeping in the room at first floor and his wife was sleeping inside the room at FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 10 of 36 ground floor. Since his mother had gone to the house of his elder brother and she left by keeping the door opened. In the meantime two persons came in the room where he along with his brother was watching TV. One of them was carrying daranti while other was carrying knife. They immediately overpowered both of them and the person who was carrying knife, put knife on his neck while the other person put daranti on the neck of his brother and they asked while threatening them as to where the cash and jewellery were kept. Since they both got scared and his brother Sunil had told them that the jewellery and cash was in almirah on the first floor. Thereafter, they both took them to first floor where his father was sleeping. On reaching there there, they abused and asked for key of almirah. When his father refused to give almirah by saying that the same was with his wife, on this the accused persons started giving beatings to his father. When they were giving beating to his father, in the meantime his mother came there and she raised alarm. On this when their attention was diverted to his mother, his father caught hold knife and daranti from his both hands and he tried to snatch both the weapons from them. In this process, the handle of one weapon was separated. Thereafter, one of them took out country-made pistol and his father hit that pistol with his hands due to which the country- made pistol had fallen and when they all tried to caught hold then in the meantime he picked up katta and ran away from there. However, they had overpowered one person but that person also got released himself from them and public persons who had collected there overpowered that person. The other person who had run away from there, his mother tried to caught hold him but she could not overpowered that person as he ran away from here.
FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 11 of 36The said persons ran away from the room after leaving daranti and knife in the room itself but one person was overpowered by the public persons and public persons gave beatings to that person due to which he received injuries. His father sustained injuries in his both hands as he had caught hold knife and darati in his hands. His mother also sustained injuries on her person as the person to whom she was trying to catch, he twisted the hand of his mother and pushed her. His wife made a call at number
100. PCR reached there. His parents along with apprehended accused were taken to the hospital by PCR. He also accompanied his parents to the hospital in the said PCR. Statement of his parents and his statement were recorded by the police. He identified both the accused persons in the court. He stated that accused Ajay, present in the court was the same person who had put knife on his neck while the other person (Gaurav) who was also present in the court had put daranti on the neck of his brother and later on took out the country-made pistol. In the hospital accused Ajay was shown to him when he was with his mother and getting her medically examined, he was identified by him and was arrested at his instance vide arrest memo Ex. PW 5/A and his personal search was also conducted vide memo E. PW5/B. He identified the case property i.e. one daranti and its handle, blade of knife as Ex. P-1 and Ex. P-2 respectively as the same which were used by the accused persons.
Witness was not cross-examined despite having given an opportunity.
(v) PW6 Mool Chand deposed that he has been doing the business/work of stitching sheet cover of motorcycles at Amar FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 12 of 36 Colony. On 22.10.2010 when at about 9.30-10 pm, he was going to his house after closing his factory. When he was passing through Gali no.2 and reached after 25/30 houses from his factory, he heard a noise which was coming from the house of Khadak Singh. And one person came down from the house of Khadak Singh and he ran away from there. One another man also came down from the house of Khadak Singh and he was apprehended by the public persons in front of the house of Khadak Singh. Khadak Singh Bhaisahib also came down and at that time he was having injuries on the fingers of his one hand. PCR reached there and the said person who was overpowered by public was removed by the PCR to GTB hospital. He could not identify that person who was overpowered by the public and the person who had ran away from there as it was dark at that time.
The witness was cross-examined by Ld. Addl PP on the point of identification and other material points.
During cross-examination by Ld. Addl. PP for State, he affirmed that the said person who ran away from there had ran away on one motorcycle which was parked outside the house of Khadak Singh. He denied that Khadak Singh was having injuries in his both hands. He affirmed that Khadak Singh had told that the person who was overpowered by the public and the person who had ran away from there caused injuries with Knife and Daranti on his person as they had entered into this house for the purpose of robbery. He affirmed that the person who was overpowered by the public was beaten by the public persons. He could not tell as to whether accused Ajay Singh present in the court was the same person who was overpowered by the public FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 13 of 36 and was removed to the GTB hospital by the PCR as it was dark at that time and it could not see him properly. He denied that he was intentionally not identify the accused Ajay present in the court as he has been won over by him. He also could not identify the other person who had run away from there due to above said reasons. He denied that accused Ajay present in the court and accused Gaurav not present in the court were seen by him at the time of incident when accused Gaurav ran away from there and accused Ajay was overpowered by the public including him. He denied that he was deposing falsely on the point of identification of the accused persons.
Witness was not cross-examined despite having given an opportunity.
(vi) PW7 Sahaib Singh deposed that in the year of 2010, he was doing the work of preparing seat covers of baby scooters. On 22.10.2010 at about 10.30 pm when he was sleeping at his house, his wife got him awaken and told to see what happened in Gali as noise was coming from there. Thereafter, he came down in Gali from the first floor of his house and after reaching the gali, he noticed that some person had entered into the house of Khadak Singh and thereafter, he went near the house of Khadak Singh. Many public persons were present there and they were giving beatings to one person. In the meantime, Khadak Singh also came down from his house. And at that time he was having injuries on his hands. After some time, police reached there and the said person who was being beaten by the public was removed by the PCR to the hospital. He could not identify the said person who was being beaten by the public when he reached at the spot.
He was cross-examined by Ld. Addl. PP for state on the FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 14 of 36 point of identification and on other material points.
During cross-examination, he denied that when he reached at the house of Khadak Singh, he found that 2-3 persons were standing outside the house of Khadak Singh and in the meantime one person came out from the house of Khadak Singh while running and he was overpowered by him and the other persons who were standing there and he so stated in his statement mark A. He affirmed that Khadak Singh told that the person to whom the public persons were beating alongwith another person who ran away on a motorcycle from there, entered into his house for the purpose of robbery and they tried to rob them. He affirmed that Khadak Singh also told that when they objected/resisted, he alongwith his co-associates inflicted injuries on their persons. He did not know as to whether the said person who was apprehended by the public had disclosed his name as Ajay Singh. He denied that he was deposing falsely in this regard.
Witness was cross-examined but nothing material came in his cross-examined.
(vii) PW8 Sumit is the son of complainant. He deposed that he has been residing at A-253, Gali no. 2, Amar Colony, Delhi along with his family while his parents and other family has been residing at house no. A 251, Gali No. 2 Amar Colony, Delhi. He has two children and his eldest child is a girl namely Ishiqa and she used to play and reside with his parents (her grand parents) and in the night her mother used to bring her in his house. On 22.10.2010 at about 10.00-10.30 pm, his mother came to his house along with his daughter Ishiqa and after staying for about 10-15 minutes, his mother left his house. After some time, he heard a noise. After hearing the noise, he came out from his FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 15 of 36 house and found many persons were present in the gali in front of the house of his parents and his father was having injuries in his hands while his mother was having injuries on her head. One person was caught hold by the public and public persons were beating that person. He came to know that the said person along with his other co-associates entered into the house of his parents for the purpose of robbery and while attempting robbery inflicted injuries on the person of his father with knife and daranti. A call was made at number 100. PCR reached at the spot and PCR van removed his parents as well as the accused to the hospital. He also went to the hospital thereafter. The said boy revealed his name as Ajay Singh and he was present in the court (correctly identified by the witness).
Witness was cross-examined but nothing material came out in his cross-examination.
(viii) PW10 Smt. Kavita deposed that on 22.10.2010, at about 10 30 PM, he was present at ground floor of H. No. A/2- 253, Gali no. 2, Amar Colony, Delhi, in the meantime her husband came there and at that time her husband was perturbed and he told her 'ghar me chor ghus aaye hai, aap yahi ander hi rehna". After instructing her, her husband left. Thereafter, she made a call at 100 number. Later on, she came to know that her father-in-law and mother-in-law received injuries on their person.
Witness was cross-examined but nothing material came out in her cross-examination.
(ix) PW13 Amit Kumar is the independent public witness residing near the house where the incident took place. He deposed that on 24.10.2010, at about 10.30 PM, he heard noise and he came out from his house and saw that one boy was being FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 16 of 36 beaten by the neighborer in the gali. He also noticed that it was bleeding from the hand of Kharagh Singh. He also came to know that the person who was being beaten tried to rob Kharagh singh and his family and when he objected he sustain injury on his person. PCR came to the spot and the said persons who was being beaten and Kharagh Singh who were taken by the PCR to the hospital. The witness correctly identified the said boy in the court.
Ld. Addl. PP for State put leading question to the witness. He affirmed that he came to know that the accused (Ajay) alongwith one another person had entered in the house of Kharagh Sigh for the purpose of robbery and the said person had ran away from there. He affirmed that Omwati had taken to the hospital by the PCR. He affirmed that date of incident was 22.10.2010.
Witness was cross-examined but nothing material came out in his cross-examination.
7. FORMAL/ EXPERT WITNESS
(i) PW9 Retd. SI Vinod Kumar was the duty officer posted Jyoti Nagar on the relevant time. He has proved the factum of registration of present FIR as Ex.PW9/B, and endorsement made by him on the rukka as Ex.PW9/A. Witness was cross-examined but nothing material came out in his cross-examination.
(ii) PW11 HC Dayanand is the duty officer posted at PS Jyoti Nagar at the time of receipt of first ever information about the incident through PCR call. He has proved the entry made by him in the Roznamcha Register vide DD No. 84-B as Ex.PW4/A. Witness was cross-examined but nothing material came out FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 17 of 36 in his cross-examination.
(iii) PW12 HC Inder Pal is the duty officer posted in PCR as Incharge of PCR van baker 11. He deposed that on 22.10.2010, at about 10:30 pm, he received a PCR call regarding apprehension of one thief. After receiving the above-said information, he went at the spot i.e. A/251, Gali No. 2, Amar Colony. On reaching there, accused Ajay was found in injured condition as public persons gave beatings to him. Two other public persons, namely, Kharagh Singh and Omwati were also found in injured condition there. Thereafter, all the three injured persons were removed by him to the GTB Hospital in his PCR van and they got admitted there.
Witness was cross-examined but nothing material came out in his cross-examination.
(iv) PW19 Dr. Devender Kumar is the doctor deputed by MS of GTB Hospital to identify the handwriting and signature of Dr. Bhuvnesh, who had examined the injured Khadak Singh. He has proved the MLC of Khadak Singh as Ex.PW1/B. Witness was not cross-examined despite having given the opportunity.
(v) PW20 Dr. Anurag Mittal is also the doctor deputed by MS of GTB Hospital to identify the handwriting and signature of Dr. Prakash Aggarwal, who had given opinion on the MLC of injured Omwati. He deposed that the nature of injury as Simple.
Witness was not cross-examined despite having given the opportunity.
(vi) PW15 Dr. Saqib Shahab is the doctor deputed by MS of GTB Hospital. He has identified the signature and handwriting of Dr. Yatendra Singh Brijwal, who had given opinion regrading FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 18 of 36 the nature of injury on the MLC of injured Khadak Singh and Omwati. In this manner, he has proved the MLC of injured Khadak Singh and Omwati. The MLC of injured Omwati was proved by him as Ex. PW15/A. Witness was not cross-examined despite having given the opportunity.
8. POLICE OFFICIALS
(i) PW4 HC Om Prakash is the first investigating officer in the present case. He deposed that on 22.10.2010, he was posted at PS Jyoti Nagar and on the same day DD No. 84B Ex. PW4/A pertaining to information regarding caught hold of thieves (chor pakadh rakha hai) was marked to him. On receipt of it, he along with Ct. Ramesh had gone to the spot i.e A 251 Amar Colony Gali No. 2, Delhi. On reaching there, it was revealed that thief along with injured have been removed to GTB hospital by PCR. In the meantime, Ct. Babu Lal reached there on patrolling. He left behind Ct. Babu Lal on the spot for preservation of scene of crime. He along with Ct. Ramesh reached GTB hospital. He found Kharagh Singh, Smt. Omwati and accused Ajay, present in the court (correctly identified by the witnesses) under treatment. He collected the MLCS of all three persons. It was revealed there that accused was beaten up by the public on the spot. He left Ct. Ramesh near accused Ajay. He recorded the statement of Kharagh Singh correctly whatever he deposed. He had read over the contents to Kharagh Singh and on finding the same to be correct, he signed at point A. He attested his signatures with his seal. He returned to the spot and prepared the rukka and sent Ct. Babu Lal to the PS for registration of FIR. He made endorsement on rukka vide Ex. PW 4/B. Subsequently, FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 19 of 36 SI Puneet Bharati came on the spot along with Ct. Babu Lal and Ct. Mahesh. IO prepared the sketch of darati and knife vide Ex PW2/A and PW2/B respectively. IO converted the recovered weapon and handle into parcel and seal of PB was affixed and seized the same through seizure memo Ex. PW2/C. His statement was recorded by the IO.
He identified the case property i.e. blade of knife, daranti and handle as Ex. PWP1 and P2 which were seized by the IO from the spot.
Witness was not cross-examined despite having given an opportunity.
(ii) PW14 HC Ramesh Chand is the investigating police official who had accompanied 1st IO HC Om Prakash (PW4) at the spot. He assisted IO till the admission of accused at GTB Hospital.
Witness was not cross-examined despite having given the opportunity.
(iii) PW16 Ct. Mahesh is also the investigating police official who had accompanied 2nd IO Inspector Puneet Bharti (PW24) on 23.10.2010 to the place of incident at the time of arrest of accused Ajay and recovery of weapon of offences at the spot. He has deposed on the same lines on which IO/ Inspector Puneet Bharti (PW24) has deposed.
Witness was not cross-examined despite having given the opportunity.
(iv) PW17 Ct. Asha was the Computer Operator at Channel No 115. She has proved the PCR Form as Ex.PW17/A. The Certificate u/s 65 B of the Indian Evidence Act regarding PCR call is Ex.PW17/B. FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 20 of 36 Witness was not cross-examined despite having given opportunity.
(v) PW18 Ct. Babu Lal was the police official who was performing patrolling duty around the place of incident on 22.10.2010. He deposed that while patrolling at about 11:15 pm, when he reached at Gali No. 2, Amar Colony, in front of H.No. A/251, he saw that many persons were gathered in the gali. HC Om Prakash and Ct. Ramesh were also present there. He further deposed that he has safeguarded the spot on the instruction of IO/HC Om Prakash. Thereafter, he has deposed on the same lines on which IO/HC Om Prakash (PW4) has deposed.
Witness was not cross-examined despite having given an opportunity.
(vi) PW21 ASI Mohan Singh is the investigating police official. He was the member of the raiding team formed on 20.07.2011 for arresting accused Gaurav @ Soni on the basis of secret information. He has deposed on the same lines on which Inspector Puneet Bharti (PW24) has deposed.
Witness was cross-examined but nothing material came out in his cross-examination.
(vii) PW22 Inspector Lalit was also the member of the raiding team formed on 20-07-2011 for arresting accused Gaurav on the basis of secret information. He has also deposed on the same lines on which Insp. Puneet Bharti (PW24) has deposed.
Witness was not cross-examined despite having given an opportunity.
(viii) PW23 SI Himmat Singh is the investigating police official who had accompanied 2nd IO/ Inspector Puneet Bharti (PW24) during the investigation conducted at the time of PC FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 21 of 36 remand of accused Gaurav. He deposed on the same lines on which PW24 had deposed.
Witness was cross-examined but nothing material came out in his cross-examination.
(ix) PW24 Inspector Puneet Bharti is the 2nd investigating officer of the present case. He deposed that on 23.10.2010, he was posted at PS Jyoti Nagar as SI. At about 04:00/04:30 a.m, when he was present in the PS, the Duty Officer informed him that investigation of the present case FIR has been marked to him as per the directions of the SHO. He along with Ct. Mahesh went to House no. 251, Gali no.2, Amar Colony, within jurisdiction of PS Jyoti Nagar, where he met with HC Omprakash first IO and Ct. Babulal. HC Omprakash handed over him original tehrir Ex. PW4/B and copy of the FIR Ex. PW4/B of the present case and Medical papers of complainant Khadak Singh and his wife Smt Omvati. He had also produced one broken knife (sharp edged side), one daranti and its handle. He prepared separate sketches. The MLC of Khadak Singh is Ex.PW-1/B. The sketch of daranti is Ex.PW-2/A and sketch of the blade of the knife is Ex.PW2/B. He prepared Pulenda of the blade of knife and daranti and its wooden handle and sealed with the seal of 'PB' and seized through Seizure Memo Ex. PW-2/C. The son of the injured namely Sunil was also present there at spot and at the instance of Sunil, he prepared site plan Ex.PW- 2/D. On completing the investigation, they returned to PS and he deposited the case property in Malkhana. He recorded statement of HC Omprakash and Ct. Babulal and relieved them. Thereafter, he went to GTB Hospital, as one of the accused namely Ajay Singh who was apprehended at the spot by the public, was under FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 22 of 36
treatment. On reaching the hospital, he made interrogation from accused Ajay Singh. Smt Omvati who was also sent to GTB Hospital for her medical examination as her hand was twisted by the accused persons and she came to the Ortho-ward and there she and her son identified the accused Ajay Singh. He arrested accused Ajay Singh vide arrest memo Ex.PW-5/A and his personal search was conducted vide personal search memo Ex. PW-5/B. He also recorded disclosure statement of accused Ajay Singh vide Ex.PW-16/A. The accused Ajay Singh was thereafter produced in the Court of Ld. Concerned MM, KKD on stretcher. The accused Ajay Singh was sent to JC and they lodged him in the Tihar Jail as he was having plaster on his leg. During investigation, he recorded statement of witnesses. he had also made search for the associate of accused Ajay Singh namely Gaurav @ Soni whose name was disclosed by accused Ajay Singh but in vain. During investigation, efforts were made to apprehend the accused Gaurav @ Soni and when he could not be apprehended, NBWs were obtained against him and proceedings under Section 82 Cr.P.C. were started. The charge-sheet was filed qua accused Ajay. It was informed that the accused Ajay Singh has been declared proclaimed Offender. During investigation pertaining to accused Gaurav @ Soni, on local enquiry, it was revealed that Gaurav had caused road accident and case in this regard for offence under Section 304A IPC was pending for trial before the Court of Shri Ankur Jain, then Ld. MM/NE KKD. Thereafter, local intelligence was activated and on 20.07.2011, he received secret information that accused Gaurav after attending date in the Court, would come to Durgapuri Chowk. Thereafter, he alongwith secret informer went to Durgapuri Chowk, from FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 23 of 36 where accused Gaurav was apprehended at the pointing out and identification of secret informer. He arrested the accused vide arrest memo Ex. PW-21/A and personal search was conducted vide Ex. PW-21/B and his disclosure statement Ex. PW-21/C was prepared by him. On the next day, the accused was produced in the Court in muffled face. During investigation, he moved application Ex. PW24/A before the concerned Court on 21.07.2011 for taking accused on one day PC remand. During PC remand, the accused led them to Behta Hajipur at rented house where he was living for last many days and there in pursuance to his disclosure statement, he got recovered one country-made pistol and three live cartridges from under the quilt at the tent of outer room. The said house was known as 'Bala Hijde Ka Makan'. He prepared a sketch of the country-made pistol and cartridges vide Ex. PW23/A and measured the same.
He prepared the seizure memo Ex. PW23/B of the country made pistol and cartridges after converting the same into Pullenda with the help of cloth and sealed with the seal of 'PB'. He prepared the site plan of recovery vide Ex. PW-23/C. On completing the investigation, they returned to PS and he deposited the case property in Malkhana. On 22.07.2011, accused was produced before the concerned Court in muffled face and he was sent to JC. On 23.07.2011, he moved application for the TIP of the accused, but accused refused to participate in the TIP. The application for conducting TIP of accused Gaurav is Ex.PW- 24/B and copy of the proceedings of TIP dated 03.08.2011 i.e. refusal is Ex.PW-24/C. He identified the accused Gaurav present in the Court. During investigation, he got the country made pistol and cartridges to FSL, Rohini for seeking opinion of the expert.
FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 24 of 36He also deposited the MLCs of the injured persons in the hospital for taking the opinion of the expert. During investigation upon recovery of the country made pistol and cartridges, Section 25 Arms Act was added. Upon completion of the investigation, supplementary charge-sheet was filed against the accused Gaurav. After the FSL report received in the present case, he obtained sanction from the DCP North-East and thereafter, he had filed the sanction and report of FSL through Supplementary charge-sheet. He had seen the FSL report No. FSL2011/F-4963 dated 05.10.2011 prepared by Shri N.P. Waghmare, Assistant Director, Ballistics, which pertains to the present case. He tendered the FSL report as Ex.PW-24/D. He identified the case property i.e. one broken knife i.e. blade, broken darati and its wooden handle as Ex.P-1 and P-2 which were seized and sealed by him from the spot as produced before him by first IO; one country made pistol and 3 cartridges (two live and one test fired) as Ex. P-3 and P-4 as the same which was got recovered by accused Gaurav from a house situated in the area Loni.
Witness was not cross-examined despite having given an opportunity.
(x) PW25 Retired Joint Commissioner was the Additional DCP at the relevant time, who had proved the sanction u/s 39 of the Arms Act for prosecution of accused Gaurav @ Soni for the offences punishable u/s 25 Arms Act as Ex.PW25/A. Witness was not cross-examined despite having given an opportunity.
STATEMENT OF ACCUSED
9. After completion of prosecution evidence, the statement of FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 25 of 36 accused Gaurav Singh @ Soni was recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused, which were denied by him. He stated that he is innocent and has been falsely implicated in this case. He stated that nothing was recovered at his instance. Police obtained his signatures on blank papers forcibly. Police took his photographs in the PS. Accused also preferred to lead evidence in defence. However, despite having given several opportunities, he did not produce any defence witness and therefore, his opportunity to lead DE stood closed vide order dated 21-08-2023. FINAL ARGUMENTS
10. This court has heard the arguments and perused the record. Ld. Addl. PP for the State submits that the testimonies of all the prosecution witnesses is sufficient to bring home the guilt of accused beyond reasonable doubts. There is no major discrepancy or contradiction in the testimony of prosecution witnesses.
On the other hand, it is submitted on behalf of accused that there are material contradiction and discrepancies in the case of prosecution. In view of the same, the accused is deserved to be acquitted. It is submitted that there is considerable delay in recovery of weapon of offence from the possession of the accused Gaurav. The recovery of pistol was effected after nine months from the date of incident. Independent witnesses PW6 Mool Chand and PW7 Sahaib Singh have also turned hostile on the point of identify of accused. No CCTV footage was recovered from the spot. There is grave contradiction on the point of nature, and the manner in which injury had been sustained by Omwati (wife of complainant). In his original statement, the FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 26 of 36 complainant had stated that the accused had twisted the hand of his wife, pushed her and then fled in the motorcycle parked on the street. However, in their respective deposition in the court, both complainant and his wife have deposed that the accused have threshed the head of Omwati on the wall by caught hold of her hair.
FINDINGS OF THE COURT
11. Before analyzing the prosecution and defence evidence adduced in the present case, this court deems it proper to refer to provisions of law and citations of Superior courts, which are found to be applicable on the facts of the present case.
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
442. House-trespass.--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
452. House-trespass alter preparation for hurt, assault or wrongful restraint.--Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
378. Theft.--Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.--A thing so long as it is attached to the earth, FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 27 of 36 not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which effects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12. It is noted that present case is based on the testimonies of eyewitnesses namely PW1 Khadak Singh, PW2 Sunil, PW3 Smt. FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 28 of 36 Omwati, PW5 Sudhir, PW6 Mool Chand, PW7 Sahaib Singh, PW8 Sumit, PW10 Smt. Kavita and PW13 Amit Kumar. PW1 is the complainant himself, whereas PW2, PW3, PW5, PW8 and PW10 are the other family members of the complainant. All the eyewitnesses except PW6 Mool Chand and PW7 Sahaib Singh have correctly identified the accused. PW1 Khadak Singh has deposed correctly with regard to the role performed by each of the accused persons in committing the alleged offence. He has correctly identified the recovered weapons i.e. one daranti, knife and country-made pistol used by the accused persons in commission of the alleged offence, which were proved as Ex. P1, Ex. P2 and Ex. P4 respectively. PW1 Khadak Singh has categorically deposed that on 22.10.2010 at about 10.00-10.30 p.m, he was lying on a folding cot on the first floor's room of his house. At that time, his two sons namely Sunil and Sudhir were watching television on the ground floor of the house. His wife namely Smt. Omwati at that time had gone to drop his grand daughter to the house of his elder son (grand daughter's father) as he used to reside at a nearby house. Main door of the house was not fully closed (adhkhulla) as he had gone there for some while, so door was not closed. Both accused persons present in the court, one was having darati in his hand and another was having knife in his hand came to upstairs his room keeping his two sons in their captive on the point of weapons they were having. Accused persons abused him and gave him beatings. Both accused asked him to handover keys of almirah and valuable like jewellery and cash otherwise they will kill his sons and him. He told them that keys are with his wife and she was not in the house and would come soon. He was very much FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 29 of 36 frightened. In the meantime, he got up on the bed and saw his wife coming inside the house and due to fear, he started making hue and cry after catching hold of the knife and daranti in his hands. Consequent of holding daranti and knife, he sustained cut injuries. Handle made of wooden got detached and metal portion remained in his hand. Accused Gaurav in the meantime took out a pistol from his pocket and pointed out the same towards his but he gave push on his hand to which the country pistol fell down near the veranda. Accused Gaurav Singh fled away from there after picking up the country made pistol from veranda. While fleeing, he had thrashed the head of his wife on the wall by catching hold of the hair of his wife. Right hand of his wife was also twisted and she had sustained fracture injuries. His version is consistent with the statement Ex. PW1/A recorded by the IO. His other family members i.e. PW2 Sunil, PW3 Smt. Omwati, PW5 Sudhir, PW8 Sumit, PW10 Smt. Kavita corroborates his version and they have also deposed with clarity regarding the role performed by each of the accused persons in committing the alleged offence. Independent witness namely PW13 Amit Kumar also corroborates his version. The oral testimony of PW1 is consistent with his MLC and the MLC of his wife which are Ex. PW1/B and Ex. PW15/A respectively. As per MLC Ex. PW1/B, PW1 Khadak Singh had received following injuries:
(i) Incised wound approximately 2.5 x 0.3 cm between thumb and index finger on thiner space at right hand.
(ii) Incised wound at third finger at left hand.
(iii) Incised wound 1 x .1 cm at fourth finger at left hand.
(iv) Abrasion on lower lip.FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 30 of 36
13. As per MLC Ex. PW15/A, his wife PW3 Omwati has received injury on her right wrist and on the parietal region. The testimony of recovery witnesses PW21 ASI Mohan Singh, PW22 Inspector Lalit, PW23 SI Himmat Singh and PW24 Inspector Puneet Bharti, is also consistent with the facts stated in the chargesheet. The recovered country made pistol from the possession of accused Gaurav was also correctly identified by PW1 Khadak Singh, and PW2 Sunil in their respective testimonies dated 22-05-2012 and 23-04-2012. They have also deposed correctly about the manner in which the said pistol was used by the accused Gaurav Singh.
14. It is contended on behalf of the accused Gaurav Singh that testimonies of PW1 Khadak Singh, PW2 Sunil, PW3 Smt. Omwati, PW5 Sudhir and PW8 Sumit are inconsistent with their respective statement recorded during the investigation, particularly, with regard to the manner in which the injury was sustained by Omwati. It is urged that as per the original complaint Ex. PW1/A, the complainant had stated that the accused had twisted the hand of his wife, pushed her and then fled on the motorcycle parked in the street. However, in their respective deposition in the court, PW1 Khadak Singh, PW2 Sunil, PW3 Smt. Omwati, PW5 Sudhir, have deposed that the accused had thrashed the head of Omwati on the wall by caught hold of her hair. In this regard, it is pertinent to note that PW1 Khadak Singh, PW2 Sunil, PW3 Smt. Omwati, PW5 Sudhir, had rather stated with clarity in heir respective deposition that accused Gaurav had thrashed the head of his wife on the wall by catching hold of her hairs. In the opinion of this court, there is no major discrepancy in the testimony of prosecution witnesses FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 31 of 36 on the aspect of the manner in which the injured Omwati had sustained injuries.
15. At this stage, it is pertinent to refer here the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43, wherein it was observed by the Hon'ble Supreme Court of India that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, 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 traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
16. Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
17. As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony.
18. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions.
19. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that:-
FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 32 of 36"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, 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 are not normal, and not expected of a normal person.
Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
20. The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 33 of 36 work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
21. It has been held by the Hon'ble High Court of Delhi in the case of Sonu Arora Vs. State on 21 July, 2010 in Crl. A. No. 241/1997 that:-
"If the discrepancies found in the testimony of a witness are normal and attributable to loss of memory with the passage of time or they are on matters which are peripheral or trivial, not forming the core of the case, his testimony cannot be rejected on account of such minor variations or infirmities. But, where the contradiction relates to the main incident forming core part of his testimony, that could depending upon the nature of the contradiction and other facts and circumstances of the case, seriously affect the credibility and truthfulness of the witness since he is not expected to give contradictory version with respect to the important material parts of the incident which he claims to have witnessed."
Thus, the contention with regard to the contradiction/ discrepancy in the statement of eyewitnesses fails to inspire confidence of this court.
22. It is further contended that PW6 Mool Chand and PW7 Sahaib Singh, independent public witnesses have failed to support the case of the prosecution, which clearly indicates that false case has been foisted upon the accused persons. In this FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 34 of 36 regard, it is pertinent to note that both PW6 and PW7 have only deposed about the incident which has taken place outside the house of complainant. They have deposed correctly about the incident which has taken place with regard to the beatings given by the public and apprehension of accused by the public. Thus, they both have turned hostile only on the point of identity. Further, PW13 Amit Kumar is also an independent public witness and his testimony is consistent with the facts stated in the chargesheet with regard to the incident which has taken place outside the house of the complainant. It is well settled that it is the quality of the evidence and not the quantity that matters. No particular number of witnesses has been specified in the Evidence Act, which are required to be examined for proving the case of the prosecution. In these circumstances, this court is of the opinion that contention with regard to non-identification of accused in the testimony of PW6 and PW7 is misconceived.
23. The contention with regard to the non-collection of CCTV footage by the IO is also misconceived as there is nothing in the cross-examination of PWs to indicate that any particular camera was installed anywhere near the place of incident wherein the occurrence had been captured.
DECISION OF THE COURT
24. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court. Nothing material came out in their respective cross-examination. There is no reason to disbelieve the version of prosecution witnesses. All the ingredients of sections 452, 393 and 398 of IPC and u/s 25/27 of Arms Act are satisfied. Section 398 of IPC is an aggravated form FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 35 of 36 of section 393 of IPC. The prosecution has successfully proved beyond reasonable doubt its case against the accused Gaurav Singh @ Soni that on 22-10-2010 at about 10:30 pm at H. No. A- 251, Gali no. 2, Amar Colony, Delhi, he along with his associate (since PO) after having made preparation to cause hurt and armed with knife, darati, and country made pistol forcibly entered in the house of complainant Kharak Singh, assaulted him and his family members and caused injuries to them inside their house and attempted to commit robbery after inflicting injuries to them. It is also proved that on 21-07-2011 at unknown time at Rahul Garden, Behta Hazipur, Loni, Ghaziabad, accused Gaurav was found in possession of one country made pistol and three cartridges without any license or authority to possess the same in contravention of provisions of Arms Act and he had also used the same in commission of offence. Accordingly, the accused Gaurav Singh @ Soni is hereby convicted of the charges punishable u/s 452 and 398 of IPC and u/s 25/27 of Arms Act. Let the convict be heard on the quantum of sentence and grant of compensation on the next date of hearing.
ANNOUNCED IN THE OPEN COURT
ON 18-10-2023
PANKAJ Digitally signed by
PANKAJ ARORA
ARORA Date: 2023.10.20
16:20:46 +0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/18102023
FIR No. 448/2010 State Vs. Ajay Singh & Anr. Page 36 of 36