Delhi District Court
State vs Udit Narayan (On Bail) on 28 June, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
CNR No. : DLCT01-004547-2015
SC No. : 28421/2016
FIR No. : 280/2015
Under Section: 395/511 IPC
PS : Timarpur
State versus Udit Narayan (on Bail)
S/o Sh. Jai Prakash
R/o H. No. 1293, MS Flats,
Timarpur, Delhi.
Date of Institution : 30.09.2015
Date of Arguments : 31.05.2022
Date of Judgment : 28.06.2022
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 26.04.2015 at about 09.30 p.m., on the way leading to Ganda Nala, near pulia, Nehru Vihar, Delhi, Udit Narayan (Hereinafter referred to as 'the accused') alongwith the co-accused CCL 'Su', 'N', 'So' and 'G' conjointly attempted to rob Mr. Pawan Kumar (Hereinafter referred to as 'the complainant') punishable under Section 395 of 'The Indian Penal Code, 1860' (In short 'IPC'). CHARGE-SHEET:
2. On 26.04.2015, PW-8 SI Yogesh Kumar with PW-3 Ct Devender Singh reached near Ganda Nala, Nehru Vihar, while patrolling, where they found the complainant in injured condition. He sent the complainant with PW-3 Ct. Devender Singh to Aruna Asaf Ali Hospital. He also reached at the said hospital and collected MLC Ex.PW5/A of the complainant.
FIR No. 280/2015 State vs. Udit Narayan Page No. 1 of 16 STATEMENT OF THE COMPLAINANT:
3. PW-8 SI Yogesh Kumar recorded statement of the complainant Ex.PW1/A, which is translated, as under:
"Statement of Pawan Kumar S/o Sh. Tek Chand Sharma R/o C-13, Gali No. 13, Village Gokalpur, Delhi-110094. Age 28 years. Mobile No. 9650817678.
Stated that I am residing with my family at the aforesaid address. I am working in Indraprastha Gas Limited, Model Town. On 26.04.2015, I proceeded to my house on motorcycle No. DL 7S AE 2737 after duty. I was proceeding towards Wazirabad Flyover from Mall Road via Nala. At about 09.30 p.m., I was passing through the way from Ganda Nala, near pulia. Suddenly 3-4 boys emerged from bushes and they came in front of my motorcycle with intention to commit robbery. They asked me to take out whatever I was carrying. Two of them were carrying dandas and their age was about 17-18 years and they were thin and their height was around 5 ½ foot. When I tried to save myself from them, they attacked me with danda. The danda hit glass of my helmet and it hit me on my face after breaking glass of helmet. One of them caught my motorcycle from behind and tried to pull it. With considerable difficulty, I saved myself and accelerated speed of motorcycle and reached at Nehru Vihar mod. There was bleeding from my nose and forehead and you met me near Nehru Vihar mod. You sent me to hospital. You came to hospital. You recorded my statement. I have read it. It is correct. The said boys attempted to commit robbery and they caused injury to me. Legal action be taken against them."
REGISTRATION OF FIR:
4. PW-8 SI Yogesh Kumar prepared rukka Ex.PW8/A for registration of case under Section 394/34 IPC. He handed over rukka to PW-3 Ct. Devender Singh for being taken to PS Timarpur for registration of case.
FIR No. 280/2015 State vs. Udit Narayan Page No. 2 of 16 INVESTIGATION:
5. After registration of FIR Ex.PW2/A, PW-2 HC Dalel Singh, Duty Officer, PS Timarpur assigned investigation of the case to PW-8 SI Yogesh Kumar. On 27.04.2015, PW-8 SI Yogesh Kumar alongwith PW-3 Ct. Devender Singh and the complainant arrested the accused and his associates, on identification of the complainant. The complainant stated that the boys who attempted to rob him were five in number. He recorded supplementary statement of the complainant. The accused and his associates disclosed themselves as juveniles.
He recovered one screw driver each from CCL 'Su' and 'So' which he seized vide seizure memos. He prepared site plan of the place of incident Ex.PW8/C at the instance of the complainant. The complainant identified CCL 'N' and 'G' as the boys who had hit him with danda. He identified CCL 'Su' as the boy who had pulled his motor-cycle from behind. He identified CCL 'So' as the boy who was standing. He identified the accused as the boy who had stopped his motor-cycle. He recovered two dandas at the instance of CCL 'N' and 'G' and seized them. He deposited the said case exhibits alongwith damaged helmet of the complainant in malkhana. He produced the accused and his associates before Juvenile Justice Board. On verification, the accused was found major and he was arrested vide arrest memo Ex.PW4/A. On conclusion of investigation, he charge-sheeted the accused under Section 395/511 IPC.
FIR No. 280/2015 State vs. Udit Narayan Page No. 3 of 16 COMMITTAL PROCEEDINGS:
6. Vide order dated 26.09.2015, the case was committed to the Court of Session.
CHARGE:
7. On hearing arguments and appraisal of the material on record, the accused was charged under Section 395 IPC to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE:
8. During trial, the prosecution examined 9 witnesses, as under:
(a) PW-1 Pawan Kumar is the complainant. He narrated the incident. He proved statement Ex.PW1/A. He proved seizure memo of helmet Ex.PW1/B, seizure memos of dandas Ex.PW1/D and Ex.PW1/E. He identified helmet Ex.P1 and two dandas Ex.P2 and Ex.P3. He identified the accused.
(b) PW-2 HC Dalel Singh is Duty Officer, PS Timarpur. He proved FIR Ex.PW2/A.
(c) PW-3 Ct. Devender Singh witnessed arrest and recovery of dandas Ex.P2 and Ex.P3. He proved seizure memo of helmet Ex.PW1/B, seizure memos of screw drivers Ex.PW3/A and Ex.PW3/B and seizure memos of dandas Ex.PW1/D and Ex.PW1/E. He identified the accused.
(d) PW-4 Ct. Subhash proved arrest memo of the accused Ex.PW4/A.
(e) PW-5 Dr. Prashant Kumar, Casualty Medical Officer, Aruna Asaf Ali Hospital, Delhi examined the complainant. He proved MLC Ex.PW5/A.
(f) PW-6 Dr. Amit Kumar, HOD, Radiology, Aruna Asif Ali Hospital, Delhi examined X-ray plate of the complainant. He proved his report Ex.PW6/A and X-
ray plate Ex.PW6/B. FIR No. 280/2015 State vs. Udit Narayan Page No. 4 of 16
(g) PW-7 Dr. Ruby Kumari, In-charge, Poor House Hospital, Sewa Kuteer Complex, Kingsway Camp, Mukherjee Nagar, Delhi identified signature and handwriting of Dr. Narender Kumar at point 'X' on MLC Ex.PW7/A (already Ex.PW5/A).
(h) PW-8 SI Yogesh Kumar is Investigating Officer. He recorded statement of the complainant Ex.PW1/A. He made endorsement for registration of case vide Ex.PW8/A. He prepared apprehension memo of the accused Ex.PW8/B. He prepared sketch of two screw drivers Ex.PW8/1 and Ex.PW8/2. He seized screw drivers vide seizure memos Ex.PW3/A and Ex.PW3B. He seized two wooden sticks vide seizure memos Ex.PW1/D and Ex.PW1/E. He recorded disclosure statement of the accused Ex.PW1/C. He prepared site plan of the place of incident Ex.PW8/C. He seized helmet vide seizure memo Ex.PW1/D. He arrested the accused vide arrest memo Ex.PW4/A and personal search memo Ex.PW8/D. He identified helmet Ex.P1 and dandas Ex.P2 and Ex.P3. He identified screw driver recovered from CCL 'So' Ex.P4 and screw driver recovered from CCL 'Su' Ex.P5. He identified the accused.
(i) PW-9 HC Ram Niwas, MHC(M), PS Timarpur proved entry at Sl. No. 2559 in Reg. No. 19 Ex.PW9/A. EXAMINATION UNDER SECTION 313 OF THE Cr.P.C.:
9. In examination under Section 313 of the Cr.P.C., the accused denied each and every circumstance appearing in evidence against him. His plea is as under:
"Q. 41: Do you want to say anything else? Ans: I was falsely implicated in this case. I was sleeping in my house when the police apprehended me."
DEFENCE EVIDENCE:
10. The accused has not examined any witness in defence.
FIR No. 280/2015 State vs. Udit Narayan Page No. 5 of 16 APPEARANCE:
11. I have heard arguments of Mr. Amit Dabas, Ld. Addl.
PP for the State and Mr. Jata Shankar Mishra, Legal Aid Counsel for the accused and perused the record. CONTENTIONS OF THE PROSECUTION:
12. Ld. Addl. PP for the State contended that the prosecution adduced cogent and credible evidence to prove the charge. He contended that the complainant is an injured witness. He contended that the complainant suffered injuries on his forehead and nose, as mentioned in MLC Ex.PW5/A. He contended that the complainant narrated the incident. He contended that the complainant identified the accused. He contended that the complainant had no enmity with the accused. He contended that the complainant had no motive to falsely implicate the accused. He contended that there is nothing in cross-examination of the complainant which can render him not worthy of credit. He contended that the accused alongwith his associates was apprehended at the instance of the complainant soon after commission of offence. He contended that PW-3 Ct. Devender Singh and PW-8 SI Yogesh Kumar materially corroborated the complainant. He contended that incriminating material was recovered from associates of the accused. He contended that the prosecution proved that the accused alongwith his associates conjointly attempted to commit robbery and in that process, his associates caused injury to the complainant.
FIR No. 280/2015 State vs. Udit Narayan Page No. 6 of 16 CONTENTIONS OF THE DEFENCE:
13. Ld. Legal Aid Counsel contended that an offence under Section 395 IPC is not made out. He contended that the complainant deposed number of boys as '3-4 boys'. He contended that in MLC Ex.PW5/A, number of persons is stated as '4 unknown persons'. He contended that to constitute an offence under Section 395 IPC, there must be five persons. He contended that there is no specific allegation against the accused. He contended that no recovery was effected from the accused. He contended that blood stained jeans pant was not seized by the police. He contended that all the documents were prepared in police station. He contended that the incident had taken place in a dark place and there was no light. He contended that the complainant had no occasion to see faces of the robbers. He contended that the complainant stated that the accused came from back of his motor-cycle and as such, he had no opportunity to see face of the accused. He contended that there are major contradictions and inconsistencies in evidence of prosecution witnesses. He contended that the prosecution failed to lead reliable evidence to sustain charge. LAW, ANALYSIS AND DISCUSSION:
14. The complainant is an injured witness. An injured witness has been accorded a special status in law. Presence of injury is an inbuilt guarantee of his presence at the time of incident. His testimony cannot be discarded in the absence of compelling reasons.
FIR No. 280/2015 State vs. Udit Narayan Page No. 7 of 16
15. In Lakshman Singh vs. State of Bihar, (2021) 9 SCC 191, Hon'ble Supreme Court of India held as under:
"9.1.....It is further observed that "where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone". It is further observed that "thus, deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein."
9.2. The aforesaid principle of law has been reiterated again by this Court in Ramvilas and it is held that "evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence". It is further observed that "being injured witnesses, their presence at the time and place of occurrence cannot be doubted".
16. In Sadakat Kotwar & Anr. vs. State of Jharkhand, 2021 SCC OnLine SC 1046, Hon'ble Supreme Court of India held as under:
"2.....We see no reason to doubt the testimony of the witnesses examined on behalf of the prosecution more particularly, PW7 and PW8 who are the injured eye-witnesses. It is required to be noted that PW7 and PW8 are the injured eye-witnesses. As held by this Court in the case of State of M.P. vs. Mansingh, (2003) 10 SCC 414 para 9, the evidence of an injured eye-witness has great evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly....."
FIR No. 280/2015 State vs. Udit Narayan Page No. 8 of 16
17. On 26.04.015 at 09.56 p.m., PW-5 Dr. Prashant Kumar, CMO, Aruna Asif Ali Govt. Hospital, Delhi examined the complainant vide MLC Ex.PW5/A. The complainant was found to have sustained following injuries:
"(a) Lacerated wound of size 04 cm x 0.7 cm x muscle deep in 'L' shape over mid forehead;
(b) Bleeding from both nostril; and
(c) Abrasion of size 03 cm x 0.1 cm over left arm"
18. Let us examine whether there are compelling reasons to discard testimony of the complainant. The complainant (PW-1) deposed, as under:
".....On 26.04.2015 at about 09.30 p.m., I was going to my house by my motor-cycle No. DL 7S AE 2737 and I reached at pulia near ganda nala, 3-4 boys suddenly came in front of my motor-cycle and they asked me to handover whatever I had. I refused on which one of them hit on my helmet from front side. The glass of helmet broken and caused injuries on my face. One of them caught hold my motor-cycle from behind to prevent me from moving. I accelerated the motor-cycle and went towards Nehru Vihar. I was bleeding from nose and forehead. On the way, police met me and I was sent to the hospital. In the hospital, my statement was recorded by police which is Ex.PW1/A which bears my signature at point A. One of those boys is present in the Court today. (Witness correctly identifies the accused Udit Narayan). Other four boys are facing trial before JJB and I had attended one date there also. The accused persons were five in number. After being discharged from hospital on 27.04.2015, I joined the investigation in this case and police made efforts to trace the accused persons. Accused alongwith his associates were found in the park. They were apprehended at my instance. I can identify the boy by his face who had given danda blow on my face. I had told the role of all the five persons before the police. One screw driver was recovered from the possession of one boy.
FIR No. 280/2015 State vs. Udit Narayan Page No. 9 of 16 Police had seized by helmet vide seizure memo Ex.PW1/B which bears my signature at point A. My blood stained jeans pant was also seized by police. The statement of accused was recorded which was Ex.PW1/C bears my signature at point A. The proceedings in respect of JCL boys were also conducted in my presence. Two dandas were also recovered at the instance of JCL and same were seized by police vide seizure memo Ex.PW1/D and Ex.PW1/E, both bearing my signature at point A. I can identify the case property.
At this stage, MHC (M) produced one helmet of black colour and two danda having written particulars of the case but in unsealed condition. The same are shown to the witness who identify the same as Ex.P1 the helmet and P2 & P3 the two dandas.
At this stage, Ld. APP for the State seeks permission to put the leading question to the witness. Heard. Allowed.
Accused had come from the back of my motor-cycle alongwith others. It is correct that all the accused persons including the accused had come in front of my motor-cycle.
XXXXXX by Sh. J.S. Mishra, Ld. Legal Aid Counsel for the accused.
I am working at Model Town Part-II, Chatrasal Stadium as DSM (Driveway Salesman). My working hours are from 02.00 p.m. to 10.00 p.m. and six days in a week. Thursday is a week off. My house is situated on the left side of the road from Model Town to Gokalpuri. It is correct that the main road is also approachable from Timarpur side. (Vol. The main road can be approached via ISBT, Kashmere Gate). It is correct that I mark my attendance daily in the office of my arrival and departure. On the day of incident, I had left my office at about 09.15 p.m. On the day of incident, there was a traffic movement. The width of the road alongwith drain is about 10 feet. It is wrong to suggest that the way alongwith the drain is in broken condition. I cannot tell the width of the drain. I had entered in the way to drain through Khalsa College.
FIR No. 280/2015 State vs. Udit Narayan Page No. 10 of 16 It is wrong to suggest that there is a way on both sides of drain. (Vol. There is only one way of going to drain). It is wrong to suggest that the way to drain at some points are closed. I cannot tell the speed of my bike at the time of incident. Police had not collected any record of my arrival and departure from my office. It is wrong to suggest that I had not passed through the drain on that day. It is wrong to suggest that my duty was ended on 10.00 p.m. and I had not left my office at 09.00 p.m. It is wrong to suggest that I had not passed through the drain on the day of incident as to why I do not remember the width of the drain. I had visited the PS thrice in regard to this case. I had signed the papers in the police station. It is wrong to suggest that I had signed blank papers in the police station. I reached to the place of incident at about 09.30 p.m. on the day of incident. I had dialled 100 on the day of incident. I had gone first to PS and then to the hospital and thereafter, went to the park for the identification of the accused persons.
At this stage, Ld. Counsel submits that he wants to see helmet.
MHC (M) produced helmet bearing the particulars of the case. It is correct that there is no mark of the stick on helmet. I was struck on my face by the danda.
Court Observation:
The glass of helmet was broken and below the glass helmet was also broken.
It is wrong to suggest that I was not hit by any danda and I sustained injuries due to falling on the ground alongwith my motor-cycle. It is wrong to suggest that no such incident had been happened with me or that I am deposing falsely."
19. As already noted above, the complainant is an injured witness. His presence at the place of incident is corroborated by PW-8 SI Yogesh Kumar and PW-3 Ct. Devender Singh. PW-3 Ct. Devender Singh admitted him in Aruna Asaf Ali Hospital at 09.56 p.m. on 26.04.2015.
FIR No. 280/2015 State vs. Udit Narayan Page No. 11 of 16
20. The complainant has no enmity with the accused. The complainant had no motive to falsely implicate the accused. The defence neither suggested nor demonstrated any malice, malafide or motive for false implication of the accused.
21. The complainant has narrated the incident. He categorically stated that on 26.04.2015 at about 09.30 p.m., the accused alongwith his associates came in front of his motor- cycle and asked him to handover his belongings and when he refused, one of them had hit on his helmet from front side. He categorically deposed that due to hit, glass of his helmet suffered damage and he sustained injury on his nose and face. He categorically deposed that he was bleeding from his nose and forehead. PW-8 SI Yogesh Kumar and PW-3 Ct. Devender Singh found him in injured condition near the place of incident. At that time, the complainant was bleeding from his face. Helmet Ex.P1 was produced before the Court and glass of helmet was in damaged condition. MLC Ex.PW5/A reinforces that the complainant was admitted in Aruna Asaf Ali Hospital at 09.56 p.m. on 26.04.2015 in injured condition having bleeding injuries on his forehead and both nostrils. The complainant categorically deposed that the number of the accused persons were five and he identified the accused before the Court. He categorically deposed that all the accused persons including the accused came in front of his motor-cycle. There is nothing in his cross-examination which can render him not worthy of credit. There is no compelling reason to discard his credible evidence.
FIR No. 280/2015 State vs. Udit Narayan Page No. 12 of 16
22. Therefore, the prosecution proved that the accused alongwith his four associates, namely, CCL 'Su', 'So', 'N' and 'G' conjointly attempted to commit robbery and in that process, they caused injuries to forehead and nostrils of the complainant. DEFENCE CONTENTIONS:
23. As regards contention that offence under Section 395 IPC is not made out, as the number of persons was mentioned as '3-4' in statement Ex.PW1/A and examination-in- chief of the complainant and as '4' in MLC Ex.PW5/A, it can be stated that when the statement of the complainant was recorded, he was receiving treatment in Aruna Asaf Ali Hospital. The complainant categorically stated that number of robbers were five. Moreover, the accused alongwith his four associates was apprehended on 27.04.2015 at 09.00 a.m. in L-Park, Sector-4, Timarpur vide apprehension memo Ex.PW8/B on identification of the complainant. The prosecution charge- sheeted five accused persons including the accused before this Court. Other four associates of the accused were forwarded to Juvenile Justice Board. (See: Ganesan vs. State Rep. by Station House Officer, 2021 SCC OnLine SC 1023).
24. As regards contention that there was no light at the place of incident and the complainant had no opportunity to see faces of robbers, it can be stated that the defence did not confront the complainant with this suggestion. PW-8 SI Yogesh Kumar stated that there was light coming from building of DRDO Complex, which was a distance of 15 feet from spot.
FIR No. 280/2015 State vs. Udit Narayan Page No. 13 of 16
25. As regards contention that no specific role was assigned to the accused, it can be stated that the complainant identified the accused as one of five robbers. He was with the robbers in night hours in a secluded place in a deserted area. He has not explained as to why he was present with the robbers at the place of incident. The accused was present with robbers in an isolated place where he alongwith his associates stopped the complainant and attempted to rob him and one of his associates caused injury to the complainant. The complainant stated that the accused is one of the said boys who attempted to rob him and caused injuries to him. The accused was conjointly concerned in attempting to commit robbery.
26. This is not a case of mistaken identity or wrong identification. The complainant mentioned age as well as physical features of the accused persons in his statement Ex.PW1/A. He stated that the accused persons came in front of his motor-cycle. There is no suggestion to him that there was no light at the place of incident and he could not see faces of the accused persons. The age as well as physical description of the accused persons is corresponding to the accused and his associates. There is no suggestion that the complainant wrongfully identified the accused. The defence could not demonstrate any material contradiction in evidence of the complainant, PW-3 Ct. Devender Singh and PW-8 SI Yogesh Kumar which goes to the root of the case and can render the case of the prosecution doubtful.
FIR No. 280/2015 State vs. Udit Narayan Page No. 14 of 16 CONCLUSION:
27. Accordingly, the accused is convicted for committing offence under Section 395 IPC.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.06.28
16:32:57 +0530
Announced in the open Court SANJAY SHARMA-II
th
on this 28 June, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
FIR No. 280/2015 State vs. Udit Narayan Page No. 15 of 16
State vs. Udit Narayan
CNR No.: DLCT010045472015
SC No. 28421/2016
FIR No. 280/2015
Under Section 395/511 IPC
PS Timarpur
28.06.2022
Present: Mr. Jata Shankar Mishra, Legal Aid Counsel with the
accused.
Vide separate judgement announced in the open Court, the accused, namely, Udit Narayan is convicted for committing offence under Section 395 IPC. A copy of judgment is given to Ld. Legal Aid Counsel for the convict vide acknowledgement on the margin of the ordersheet. As directed by Hon'ble High Court of Delhi in the case of Karan vs. State of NCT of Delhi, Crl. Appeal No. 352/2020 decided on 27.11.2020, the convict is directed to state his paying capacity in the format prescribed as 'Annexure A' within 10 days. The State shall state expenses incurred by the prosecution on affidavit. To come up for arguments on the point of sentence on 28.07.2022. Issue notice to SHO, Timarpur to submit antecedents / involvements of the convict. Issue notice to concerned Jail Superintendent to submit conduct report and nominal roll of the convict.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.06.28
16:33:14 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
28.06.2022
FIR No. 280/2015 State vs. Udit Narayan Page No. 16 of 16