Delhi District Court
Discrepancies In The Testimonies Of ... vs . Kalki, on 7 September, 2011
STATE V. SONU @ CHARANJEET ETC.
IN THE COURT OF SH. MANISH KHURANA, MM/OUTER/ROHINI/DELHI
JUDGEMENT
STATE V. SONU @ CHARANJEET ETC.
PS BAWANA
a) The FIR of the case : 476/99
b) The date of commission of offence : 18.12.99
c) The name of the complainant : Ajay Kumar s/o. Ram nath,
r/o. H. no. A1176, shyam
Colony, Budh Vihar, Phase
II, Delhi
d) The name, parentage, address of : 1. Sonu @ Charanjeet, accused. s/o. Amarjeet, r/o. H. no. 495, Pkt J, Sardar Colony, Sect 16, Rohini
2. Harjinder @ Bunty, s/o. Karnail Singh, r/o. Prahalad Vihar, Phaladpur, Delhi
3. Ranjeet @ Manju, s/o. Laxman Singh, r/o. H. no. 398, Sardar Colony, Delhi
f) The offence complained of : 392/414/34 IPC
g) The plea of the accused : Not guilty Page 1 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
h) Date of Institution : 29.02.00
i) The date on which the judgement was : 07.09.11
reserved
j) The final order : Convicted
k) The date of such order : 07.09.11
l) Unique identification Number : 02401R0091702001
Brief statement of the reasons for the decision:
1. The story of the prosecution is that on on 18.12.99 at about 06.45 p.m. at near Shiv Mandir Gupta Colony, Prahaldpur Bangar, the accused Sonu and Harjinder in furtherance of their common intention, committed robbery by taking away belonging of Ajay Kumar and later on 20.12.99 accused Sonu, Harjinder and Ranjeet were found in possession of the stolen property and thus all the accused committed the offence u/s. 392/414/34 IPC.
2. The chargesheet was filed before my Ld. Predecessor and the charge u/s 392/34 IPC and an alternative charge u/s 414 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined 8 witnesses.
4. PW1 HC Jal Singh deposed that he was duty officer on 19.12.99 from 08.00 a.m. to 04.00 p.m. and registered the present FIR u/s 356/379 IPC on receipt of rukka sent by the IO. However this witness remained Page 2 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
unexamined by the accused despite the opportunity given.
5. PW2 Ajay Kumar is the complainant and the victim who deposed that on 18.12.99 at 07.00 p.m. he was going to his house at Budh Vihar when near Shiv Mandir, the accused persons snatched off his bicycle and the HMT Watch which he was wearing by pushing him on the ground and while leaving they also snatched off his shawl which he was wearing. When the complainant tried to chase the accused persons, he was beaten up by them and he received injuries. Thereafter he informed his uncle, father and also called the police. He was medically examined and his statement was recorded by the police vide Ex. PW 2/A. On 20.12.99 on secret information the accused persons were arrested vide memos Ex. PW 2/J to PW2/O and the case property was recovered at their instance from their possession which was then seized vide memos Ex. PW2/E to PW 2/G. He has correctly identified the accused and the case property before the court.
6. However this witness remained unexamined by the accused despite given several opportunities. Later on application for his crossexamination was filed by the accused persons which was allowed subject to availability of witness. However, this witness could not be crossexamined due to his non availability at the given address, therefore, his testimony remained unrebutted.
7. PW3 Ct. Sunil Kumar was on duty and was present near Gupta Page 3 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
Colony on 20.12.99 and on receipt of a secret information he arrested accused Charanjeet from Sector 16 Rohini, vide already exhibited memo Ex. PW2/I and on his disclosure the case property was recovered and was seized vide memo Ex. PW 2/G and co accused Ranjit was arrested and on his disclosure statement coaccused Harjinder @ Bunty was also arrested who got recovered one HMT watch which was seized vide already exhibited memo Ex. PW 2/H. Prior to this accused Charanjeet also got recovered the Shawl on 19.12.99 which was seized vide memo already exhibited as Ex. PW 2/F. This witness has correctly identified the accused persons and the case property.
8. This witness was cross examined by the accused during which he denied having served any notice to the public persons who denied to join as witness to the proceedings. He also admitted that all the disclosure statements were signed by him and the complainant and denied to recollect if the accused persons had also signed or put their thumb impressions on those statements. He denied that no recovery was effected from the accused persons or that they have been falsely implicated.
9. PW4 HC Patram deposed that on 12.09.99 on receipt of DD no. 6 regarding the admission of the injured in the hospital, he alongwith Ct. Kuldeep reached the Hindu Rao hospital where he collected the MLC no. 175/41 of one Ajay and also recorded the statement of the said injured Ajay Page 4 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
vide Ex. PW 2/A and made endorsement Ex. PW 4/A and sent the rukka through Ct. Kuldeep to get the case registered and also for deputation of some other officer for investigation. He also deposed that the complainant had informed him that his cycle and his HMT wrist watch was snatched by two boys.
10. During his cross examination, he deposed that he had obtained certificate of doctor about injured being fit for statement as mentioned in the MLC dated 19.12.99.
11. Opportunity to cross examine this witness was given to the accused but to no avail.
12. PW5 HC Ram Janam Singh was the DD writer at PP Shahbad Dairy, PS Bawana and recorded DD no. 6 received by him at 11.10 a.m. given by HC Pat Ram for necessary action. He has proved the said DD no.6 as Ex. PW 5/A .
13. Opportunity to cross examine this witness was given to the accused but to no avail.
14. PW6 Ct. Dalbir Singh deposed that on 20.12.99 he alongwith SI Bhagwan Singh, Ct. Sunil and complainant Ajay Kumar apprehended Bunty, Sonu and Ranjit from Sector 16 and these accused persons made their disclosure statements vide Ex. PW 2/B to PW 2/D. Accused Bunty got recovered one Kohinoor watch, which was seized vide memo Ex. PW 2/E Page 5 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
and was sealed with the seal of BS, while accused Sonu got recovered one Shawl, which was seized vide memo Ex. PW 2/F and accused Ranjit got recovered one Atlas cycle which was seized vide memo Ex. PW 2/G all bearing his signatures at points C. The personal search of the accused persons were conducted vide memo Ex. PW 2/J to PW 2/I and thereafter the accused persons pointed out the place of the incident vide memo Ex. PW 2/H and PW 2/I.
15. During his cross examination on behalf of the accused, he admitted that no public witness was joined at the time of seizure of articles. However the complainant was with them. He deposed the colour of the seized shawl to be yellow and denied to recollect any identification mark on the said shawl. The watch was of HMT Kohinoor. The disclosure statements of the accused persons were recorded in his presence by the IO, but denied to recollect exact number of pages those statements ran into. He further denied that the case property was planted or accused persons were falsely implicated.
16. PW7 Mahavir Yadav though could not recollect the exact date and time but he deposed that about 8 years ago during winter season one day at about 05.30 a.m. Ajay Kumar, who was a resident in his neighbourhood came to him in an injured condition and he alongwith other neighbours took Ajay Kumar to PP Shahbad Dairy and from there he was taken to HR Page 6 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
Hospital by him and the family members of Ajay and were accompanied by two police official and Ajay was discharged at about 07.00 p.m. and they all went to PP and from there Ajay accompanied the police to the house of the accused persons who had robbed him where from one shawl was recovered which was identified by complainant Ajay to be belonging to him and the same was seized vide memo Ex. PW 2/F bearing his signatures at point X. thereafter his statement was recorded by the police.
17. This witness has correctly identified the case property in the court.
18. During his cross examination he deposed that injured Ajay Kumar was taken to PP Shahbad Dairy in a rickshaw by him and his father and they were accompanied by one of his neighbours. He further deposed that the injured Ajay was discharged from the hospital in his presence. He further deposed that the recovery of the shawl of the injured Ajay Kumar was effected from the house of the accused in Gupta Colony. He denied that he did not join the investigation or that no recovery was effected from the accused.
19. PW8 is SI Bhagwan Signh. He deposed that on 19.12.99, he was posted at PP Shahbad Dairy, PS Bawana as SI. On that day investigation of the present case was handed over to him and he reached at the spot of incident with complainant Ajay Kumar where he prepared the site plan Ex. PW8/A at the instance of complainant. He also recorded the Page 7 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
supplementary statement of complainant. The witness further deposed that on 20.12.1999, he alongwith Ct. Sunil Kumar, Ct. Dalbir Singh and complainant reached Bablu Colony at Village Prahlad Pur, where complainant pointed out towards a room saying that two of the persons reside there who robbed him. There was no lock at the room and its gate was opened. One cot was lying near the gate of the room on which one dark brown coloured shawl was lying. Complainant Ajay Kumar identified the shawl as belonging to him and robbed by accused persons. Shawl was seized. Thereafter, they reached at Sardar Colony where complainant pointed out towards a person that he was one of the persons who had robbed him on the previous evening. The person was apprehended and he disclosed his name as Sonu @ Charanjit. Accused Sonu was arrested vide memo already Ex. PW2/M and personal search memo Ex. PW2/L. During investigation accused made a disclosure statement which was already Ex. PW2/C. Seizure memo of shawl and search of house of accused Sonu is already Ex. PW2/F. The witness further stated that accused Sonu took them to House no. 298 Sardar Colony and pointed out towards a person. That person was apprehended and he disclosed his name as Ranjit @ Manju. Cycle was recovered from the house of Accused Ranjit and was identified by complainant Ajay Kumar and was seized vide memo already Ex. PW2/G. Accused Ranjit was arrested vide arrest memo already Ex. Page 8 of 19
FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
PW2/J and his disclosure statement is already Ex. PW2/D. Thereafter, accused Sonu took them to public colony at the house of accused Harjinder @ Bunty. Where complainant pointed out towards a person saying that he was one of those persons who have robbed him and accused Harjinder @ Bunty was apprehended and was arrested vide memo already Ex. PW2/N and his personal search was conducted vide memo already Ex.PW2/K and his disclosure statement is already Ex. PW2/B. Accused Bunty got recovered from his house one wrist watch HMT Kohinoor which was identified by the complainant as belonging to him. Watch was seized vide memo already Ex. PW2/E. The witness further deposed that he recorded the statements of the witnesses and returned to PS alongwith accused persons and case property was deposited in the malkhana. He completed the investigation, prepared chargesheet and filed the challan in the court.
20. This witness has correctly identified the case property and the accused persons before the court.
21. During his cross examination on behalf of the accused this witness deposed that the incident took place on 18.12.99 and he left PP Shahbad Dairy at about 01.25 p.m. on 19.12.99 on his scooter for HR Hospital, where he met HC Patram and the injured Ajay Kumar. Thereafter, he reached the spot. He also deposed that after robbing him the accused persons went towards a room which was about 500 mtrs away from the spot and the said Page 9 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
room was shown to him by the complainant Ajay Kumar himself and it did not have any number and was situated in Jungle and even no ownership of the said room was established and that since the said room was unlocked thus anyone could enter the same and could reside in it. He also deposed that the said room was not deserted or inhabited. He further deposed that the said room and the house of the accused Sonu were about 56 kms away from each other and they reached the house of the accused Sonu at about 01.00 p.m. and the secret informer had come to him on his own and the accused was arrested at about 02.00 p.m. and the said information was given to the mother of the accused. The houses of the accused Sonu and Ranjit were situated about 50 mtrs away from each other and the bicycle was recovered form the house of accused Ranjit @ Manju and he was arrested the same day at about 04.00 p.m. , while the accused Harjinder @ Bunty who was resident of Babli Colony which was again 56 kms away from the resident of Charanjit and Sonu, was arrested at about 07.00 p.m. and thus they all reached at the police post in TATA 407 at about 11.30 p.m. he denied that nothing was recovered from the accused or that no such room exists or that accused have been falsely implicated in connivance of complainant and the police as there arose an altercation between the accused persons and the complainant.
22. On his reexamination by Ld. APP for the State he deposed that he Page 10 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
alongwith Ct. Sunil, Ct. Dalbir and injured Ajay Kumar had reached at the spot i.e Babli Colony on pointing out of the complainant. He also deposed that the incident occurred at Babli colony and not at Babloo Colony.
23. Thereafter, the prosecution evidence was closed. Statement of the accused persons u/s. 313 Cr.P.C. was recorded and all the accused persons denied for leading defence evidence.
24. I have perused the record of the case file and heard Ld. Counsel for the accused persons as well as Ld. APP for the State.
25. Ld. Counsel for the accused has argued that though all the accused persons were charged for the offence u/s. 392 IPC, whereas the case of the prosecution is that the accused Charanjeet @ Sonu and Harjinder @ Bunty committed theft of the belongings of the complainant and while attempting to take away the property so obtained they caused hurt to the complainant hence they were charged for the offence of robbery. Testimony of PW2 Ajay Kumar and that of IO PW8 SI Bhagwan Singh reveals that accused Charanjeet @ Sonu and Harjinder @ Bunty committed theft of the belongings of the complainant and caused hurt to him while attempting to take away the property obtained by way of theft. So far as role of accused Ranjit is concerned, he was only found in possession of part of the case property i.e. one bicycle.
26. Ld. Counsel for the accused persons has argued that FIR was Page 11 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
registered on 19.12.99 and the case was registered u/s. 356/379 IPC on the statement of the complainant Ajay Kumar, however, the chargesheet was filed u/s. 392/414/34 IPC while the facts remained the same. So far as this contention is concerned, as per the contents of the FIR the complainant was robbed of his bicycle, wrist watch and one shawl. Thus ultimately the chargesheet was filed for the offence u/s. 392/414/34 IPC and the accused persons were charged accordingly.
27. Another argument of Ld. Counsel for the accused is that FIR was registered at about 02.50 p.m. based on the tehrir brought by Ct. Kuldeep and sent by HC Patram. However, this fact was nowhere mentioned in the testimonies of PW HC Patram and Ct. Kuldeep.
28. This argument raised by Ld. Counsel for the accused is not enough to disprove the case of the prosecution as the case was registered by the duty officer and is a matter of record and the FIR has also been duly proved on record as Ex. PW1/A.
29. Another argument of the Ld. Counsel for the accused is that the testimonies of PW4, PW7 and PW8 are not corroborative to each other and are rather contradictory. I have perused the testimonies of PWs and there is no material contradiction in their testimonies. Complainant PW2 Ajay and PW8 SI Bhagwan Singh who is the IO have corroborated the role of the accused Harjinder and Charanjeet @ Sonu in committing the robbery Page 12 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
and the factum of recovery of case property from the accused persons has also been proved on record. The seizure memo bear the signatures of complainant PW2 and he has duly proved the same on record.
30. Ld. Counsel for the accused persons has also argued that there is also contradiction regarding the pointing out of the place of occurrence at the time of preparation of site plan since. As at one instance, it is accused Sonu @ Charanjeet and Harjinder who took the IO to the place of the occurrence and site plan was prepared. However, on other instance it was the complainant PW2 Ajay who took the IO to the spot on 19.12.99 and got the site plan prepared.
31. Ld. Counsel for the accused has also argued that as per the arrest memo all the accused were arrested at 11.30 p.m. on 20.12.99 whereas PW9 Bhagwan Singh deposed that Sonu was arrested at 02.00 p.m., Ranjeet at 04.00 p.m. and Harjinder at 07.00 p.m.
32. At this stage, observation of the Apex Court, regarding normal discrepancies in the testimonies of witnesses in State of Rajasthan vs. Kalki, AIR 1981 SC 1390, is applicable as held :
"In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the Page 13 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
33. Ld. Counsel for the accused has also argued that author of the MLC has not been examined to establish the nature of the injuries sustained by the complainant and the FIR also does not mention of any offence of such injury sustained by the complainant. So far as this argument is concerned, the complainant has alleged that he sustained simple injuries while accused Harjinder and Charanjeet @ Sonu were attempting to take away property obtained by way of theft. The factum of simple injuries sustained by the complainant is duly proved by the testimony of the complainant and the same is also corroborated by the testimony of PW7 Mahavir Yadav. Mere non examination of the Doctor to prove the MLC is not fatal for the prosecution as the injury sustained by the complainant are simple in nature.
34. Ld. Counsel for the accused has also argued that PW2 Ajay Kumar was not crossexamined as he did not turn up despite repeated opportunities given to the prosecution.
35. However, perusal of the record reveals that PW2 Ajay Kumar was examined and his crossexamination was not conducted by any of the accused persons despite opportunity. Later on an application u/Sec. 311 CrPC for recalling of the complainant PW2 Ajay Kumar for his cross examination was filed, which Page 14 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
was allowed subject to the availability of the witness. Repeatedly, summons were sent to the complainant PW2 Ajay Kumar, however, he was not traceable, therefore, his testimony remained unrebutted and is to be read as it is.
36. It is further argued by Ld Counsel for the accused that any public witness to the recovery from the accused persons has not been made to join the investigation and even there is a contradiction on the colour of the shawl recovered from the accused Charanjeet @ Sonu. Since as per the PW6 Ct. Dalbeer Singh the colour of the shawl was yellow while as per another witness it was brown in colour.
37. So far as recovery of shawl from the accused Sonu is concerned, it is the case of the prosecution that it was recovered from the possession of the accused Sonu, however, testimony of the IO PW8 SI Bhagwan Singh reveals that on the pointing out of the complainant, IO reached at one room at Bablu Colony, Vill. Prahladpur and the police official entered that room as it was not locked. There was a cot lying near the door of that room at which one dark brown coloured shawl was lying and the complainant Ajay Kumar identified the shawl as belonging to him. The same was then seized. In the meantime, one secret informer came there and informed the IO that the occupant of the said room is one Sonu, who lived at House No. 498, Sardar Colony, near Village Shahbad Daulatpur. Thereupon, they reached the said house of the accused and the accused Sonu was apprehended and arrested. Therefore, as per the testimony of Page 15 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
PW8 i.e. IO the aforesaid shawl was not recovered from the possession of the accused Sonu, but from a house at Bablu Colony.
38. Ld. Counsel for the accused persons has further submitted that the present case is a false and fabricated case and the accused persons have been harassed for last 12 years for no fault and the present case was registered due to altercation which took place between the complainant and the accused persons on the night of 18.12.99.
39. Section 390 IPC defines robbery as it reads as to when theft is a robbery. It reads as under
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.
40. In this case, complainant PW2 Ajay Kumar has stated that two boys snatched his bicycle while he was going to his house at Budh Vihar and after pushing the bicycle one boy took his Atlas Cycle and another boy snatched his HMT wrist watch and after snatching both of them ran away. However, Page 16 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
complainant chased them for some distance upon which the complainant was also beaten up by the said two boys and consequently the complainant received injuries. The complainant has identified the accused Harjinder and Sony @ Charanjeet in the court who snatched his bicycle and watch. He also stated that his shawl was also snatched by those persons and he has duly identified the case property produced in the court. He has also proved the seizure memo of the stolen property recovered from the accused persons vide memos Ex. PW2/E, 2/F and 2/G bearing his signatures at Point A. The complainant who was the most relevant witness was not crossexamined by the accused persons and his testimony remained unrebutted. All the PWs examined by the prosecution have also corroborated the factum of robbery that was committed with the complainant and the recovery of the case property.
41. It is the case of the prosecution that accused Charanjeet @ Sonu and Harjinder @ Bunty committed the offence of robbery of the complainant, however, the case property i.e. the bicycle was recovered from the possession of the accused Ranjit. Disclosure statement of the accused Ranjit is Ex. PW2/D and the seizure memo of the bicycle which was recovered from the accused Ranjit is Ex. PW2/G and the same bears the signatures of complainant PW2 Ajay Kumar. Therefore, so far as recovery of stolen property from accused Ranjit is concerned the same is duly proved on record.
Page 17 of 19
FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
42. So far as the charge u/Sec. 414 CrPC is concerned, the same deals with assisting in concealment of stolen property and nowhere the prosecution has proved that any of the accused persons has assisted in concealment of the stolen property as required u/Sec. 414 IPC. None of the prosecution witnesses examined has alleged the role of accused persons in assisting in concealment of the case property.
43. Therefore, the prosecution has been able to prove the ingredients of Section 392 IPC against the accused Harjinder @ Bunty and Charanjeet @ Sonu as the complainant has identified the accused persons in the court who snatched his bicycle, watch and shawl and he has also stated that they also beated him while they were carrying away the property so obtained. The seizure memo of watch and shawl recovered from the accused on the next day of the incident are Ex. PW2/E and 2/F bearing signatures of the complainant Ajay Kumar. Accordingly, prosecution has duly proved on record the ingredients of Section 392/34 IPC against accused Harjinder @ Bunty and Charanjeet @ Sonu. So far as the role of accused Ranjit is concerned, only allegation against him is that he was found in possession of the bicycle belonging to the complainant. The seizure memo of the aforesaid bicycle is duly proved on record as Ex. PW2/G bearing signatures of the complainant. Therefore, in my considered opinion the prosecution has proved that accused Ranjit was found in possession of the stolen property i.e. Bicycle belonging to the complainant. Accordingly, accused Ranjit is liable to be Page 18 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC STATE V. SONU @ CHARANJEET ETC.
convicted u/Sec. 411 IPC.
44. Accordingly, accused Harjinder @ Bunty and Charanjeet @ Sonu are hereby convicted for the offences u/Sec. 392/34 IPC and accused Ranjit is convicted for the offence u/Sec. 411 IPC. Let they be heard on the point of sentence.
Announced in the open court On 07.09.2011 (MANISH KHURANA) Metropolitan Magistrate:Rohini:Delhi Page 19 of 19 FIR NO. 476/99, PS BAWANA, U/S. 392/414/34 IPC