Delhi District Court
State vs Satish Kumar on 10 June, 2016
FIR No.616/95 PS : Nand Nagri
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 616/95
Under Section : 392/397 IPC
Police Station : Nand Nagri
Sessions Case No : 587/2016 (New)
37/2015(Old)
Unique I.D. No. : 02402R0443542015
In the matter of :-
STATE
VERSUS
SATISH KUMAR
S/o. Sh. Ratan Lal,
R/o. 165, Main Shukar Bazar Road,
Ghaziabad, Uttar Pradesh-201001 ......Accused
Name and particulars of : Sh. NANAK CHAND,
complainant S/o. Late Sh. Kripa Ram, R/o. H.No.564,
D-Block, Gali No.31, Harsh Vihar, Delhi.
Date of Institution : 12.12.2015
Date of Committal : 15.12.2015
Date of receiving in this Court : 17.12.2015
Date of reserving judgment : 01.06.2016
Date of pronouncement : 10.06.2016
Decision : Acquitted.
(Section 437-A Cr.P.C. complied with)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. Briefly stated, complainant Nanak Chand made a complaint before ld. MM, Shahdara on 07.12.1995, alleging that he was working as Baildar in MCD and was posted at Mandoli. He was drawing salary of Rs.2,500/- per month. On 04.12.1995 at about 06:00 pm, he was coming back to his house, after (Pulastya Pramachala) Page no. 1 of 10 ASJ (Shahdara) Karkardooma Courts/Delhi FIR No.616/95 PS : Nand Nagri receiving his salary. When he reached near Saboli railway-crossing, he was intercepted by accused Satish and two unknown persons. They snatched the salary i.e. Rs.2,500/- from complainant. All of them were equipped with deadly weapons. They also gave beatings to the complainant and ran away.
Thereafter, on 05.12.1995, at about 01:00 pm, accused Satish came to the house of complainant, armed with a knife and country-made pistol and tried to cut the neck of the complainant. As a result of which, complainant sustained injuries on different parts of his body. Complainant made complaint in police post Harsh Vihar against the accused, but police did not take any action nor medical examination of complainant was got conducted. Since police had not taken any action, therefore complainant had made prayer before ld. MM, to got his medical examination done and for registration of his case.
2. Said complaint was referred by ld. MM to SHO, PS Nand Nagri with directions to register the case and to take action as per law. Such directions were given on 09.12.1995 and the complaint was received in PS on 10.12.1995. On the basis of this complaint, complainant was again examined by HC Subhash. In his fresh statement given before police, complainant reiterated the incident dated 04.12.1995 and 05.12.1995 with some modifications and he sought action against accused Satish and his friends. On the basis of fresh statement given before police, FIR was registered by police and investigation was assigned to ASI Nanak Chand.
3. Accused was arrested during investigation and IO finally chargesheeted him for offence u/s 356/392/34 IPC. Accused was facing trial on the charges of offence u/s 356 IPC read with 34 IPC. Complainant was examined before ld. MM and thereafter, the then ld. MM passed order to commit the case to the Sessions Court, on the basis of statement given by complainant regarding use of deadly weapon during his robbery. Case was received in the Sessions (Pulastya Pramachala) Page no. 2 of 10 ASJ (Shahdara) Karkardooma Courts/Delhi FIR No.616/95 PS : Nand Nagri court and thereafter, fresh trial was initiated against accused after framing charge on 02.07.1999 u/s 392/397 IPC. However, accused stopped appearing before the court and absconded, due to which he was declared Proclaimed Offender vide order dated 04.12.1999. Accused was again arrested on 12.12.1995 and was produced before ld. MM with kalandara u/s 41.1(c) Cr.P.C. Thereafter, accused was tried for the charges already framed on 02.07.1999.
CHARGE :-
4. It was alleged against accused that on 04.12.1995, at 06:00 PM, in furtherance of his common intention shared with two friends, he committed robbery of Rs.2,525/- from Nanak Chand on the point of country-made pistol and knife and he had used deadly weapon in this robbery, thereby committing offence u/s 392/397 IPC.
PROSECUTION EVIDENCE :-
5. Prosecution examined 6 witnesses in support of its case.
PW Name of Role of witness Proved document/article No. Witnesses PW-1 Nanak Complainant/victim Photocopy of complaint Chand dated 05.12.1995 as Mark PW-1/DA and photocopy of DD dated 05.12.1995 as Mark PW-1/DB.
PW-2 SI Reader to SHO PS Nand Endorsement on rukka i.e. Subhash Nagri. He recorded additional Ex.PW-2/A;
Chander statement of complainant and Report (that FIR No.616
accepted his complaint. He u/s 356/34 IPC was
made endorsement and registered on the direction
prepared rukka on that of court) i.e. Ex.PW-2/B.
complaint and gave it to duty
officer for registration of FIR.
(Pulastya Pramachala)
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FIR No.616/95 PS : Nand Nagri
PW-3 SI Uttam He was duty officer, who Carbon copy of FIR i.e.
Chand registered FIR, handed over Ex.PW3/A (OSR);
copy of FIR & original rukka to Endorsement on the back Ct. Krishan to hand over the side of rukka i.e. same to ASI Nanak Singh for Ex.PW3/B. investigation.
PW-4 HC Nathu He joined the investigation Personal search memo of Singh with IO/HC Rajender. He was accused i.e. Ex.PW4/A;
witness to the arrest of Disclosure statement of
accused. accused i.e. Ex.PW4/B.
PW-5 Retd. SI He arrested the accused, took
Rajender his personal search, prepared
Singh his conviction slip and
recorded his disclosure
statement.
PW-6 HC He was posted as Proclaimed Arrest memo of accused
Sanjay Offender staff in PS Anand i.e. Ex.PW6/A;
Naen Vihar and he arrested the Personal search memo of
accused on 12.12.2015, after accused i.e. Ex.PW6/B;
accused was declared
proclaimed offender in this Kalandara i.e. Ex.PW6/C.
case.
PLEA OF ACCUSED :-
6. In his statement u/s 313, accused denied the allegations that he along with other persons had robbed complainant/PW-1 on 04.12.1995 on the point of deadly weapons. He was ignorant of the complaint made to the police. He pleaded that complainant/PW-1 was his neighbor and he had falsely implicated him in this case because he himself had taken Rs.3,000/- from his father and on demand being made for that amount, he had hit the accused on his head around 10-15 days back from the incident. Accused had made a complaint regarding this incident in PS Harsh Vihar. Accused did not opt to lead any evidence.
(Pulastya Pramachala)
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APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
7. Complainant/PW-1 Sh. Nanak Chand was the star-witness of the prosecution to prove the charges. As per testimony of PW-1, on 04.12.1995 at about 06:00 pm, he was going to his home after receiving his salary from MCD. He was having Rs.2,500/- in cash. When he was passing-by railway-crossing of Meet Nagar, three persons were standing there including accused Satish. He knew Satish because Satish resided in neighborhood. However, other two persons were unknown to him. All those three persons came to him and demanded money. He told them that he did not have any money, but accused Satish said that he was having his salary. The other persons were having knife and country-made pistol. They showed the same to the complainant and out of fear PW-1/complainant handed over Rs.2,500/- to accused Satish. Thereafter, PW-1 went ahead to his home and from his home, he went to the office of ld. DCP at Seelampur. He gave a written complaint in that office and thereafter, police registered the case. On same day, PW-1 also filed another complaint in police post Harsh Vihar, where his statement was recorded by police. Thereafter, he filed a complaint case in the court after engaging a lawyer after around 4-5 days. PW-1 could not identify his thumb-impression on the statement given before police as well as on the complaint made before the court. Though his statement was already exhibited as Ex.PW-2/A, as per previous examination of this witness before my ld. Predecessor i.e. statement recorded u/s 299 Cr.P.C.
8. In his cross-examination, PW-1 admitted that Satish was residing in the same street and after two houses from his house, since his birth. He denied the suggestion that he had falsely implicated the accused. He stated that he lodged report to the police at the same time and he produced photocopy of (Pulastya Pramachala) Page no. 5 of 10 ASJ (Shahdara) Karkardooma Courts/Delhi FIR No.616/95 PS : Nand Nagri receipt of complaint dated 05.12.1995 addressed to I/C, Police Post Meet Nagar and photocopy of DD dated 05.12.1995 registered in PS Harsh Vihar. He further deposed that he had told police that other two persons were having knife and country-made pistol and he was confronted with his previous statement Ex.PW-2/A, wherein it was not so recorded. He further stated that at the relevant time, there were no jhuggis or houses at Saboli railway- crossing and denied such suggestion of the defence. He further denied the suggestion that he had borrowed Rs.3,000/- from father of accused and had quarreled with accused on this issue.
9. Ld. LAC submitted that accused was falsely implicated in this case by the complainant because of a different dispute, which related to loan given to complainant by father of accused and demand being made by the accused to return that amount. She further submitted that testimony of PW-1 is not reliable as he had been changing his version time-and-again. Complainant himself admitted before police that some false plea was taken in the complaint given before the court regarding any weapon being carried by the accused. She further referred to delayed registration of FIR and delayed complaint given by PW-1 before police i.e. after a day from the incident.
10. On the other hand, ld. Addl. PP submitted that testimony of PW-1 is consistent regarding role of accused. Since, police did not take any action therefore, PW- 1 had to file a complaint before the court and there is nothing to cast doubt over testimony of PW-1.
11. Before I start analyzing the testimony of complainant/PW-1, it is relevant to mention here that this witness was examined thrice in this case before different courts. For the 1st time, he was examined before ld. MM on 11.03.1999. In that testimony, he had mentioned about use of deadly weapon in the alleged robbery, due to which ld. MM had passed order for committal of (Pulastya Pramachala) Page no. 6 of 10 ASJ (Shahdara) Karkardooma Courts/Delhi FIR No.616/95 PS : Nand Nagri this case to the Court of Sessions. For the 2 nd time, this witness was examined before ld. ASJ on 05.02.2000 u/s 299 Cr.P.C. Thereafter, this witness was examined before this court on 14.03.2016, after arrest of the accused. In the first two statements made before the courts, this witness was not able to recollect the exact date of the incident. He was examined after gap of around 04 years from the alleged incident, for the 1 st time. Thereafter, he was examined again after a gap of around 4 ½ years from the alleged incident. For the 3rd time, this witness was examined after a gap of around 20 ½ years from the alleged incident. However, after so much gap of the time, when this witness was examined before this court on 3 rd occasion, this witness mentioned the exact date of incident. This situation in itself shows that when this witness had appeared before this court, he had come well-prepared either after recollecting all the dates, etc. or after going through the record of this case, so as to remember the exact date of incident and other facts related to this alleged incident. There is a provision for refreshing of memory with permission of the court, however, apparently this witness had not sought any such permission from the court. Which means that he came prepared after going through the record in advance, before his examination.
12. Unlike his previous two statements, PW-1 deposed about robbery of Rs.2,500/- from him. On previous two occasions, he had mentioned about robbery of Rs.2,525/-. The difference of amount is not huge, however, it is material to note that this difference came despite the fact that the witness had come well-prepared to make his statement before this court. In fact, charge was framed on the basis of his statement given before ld. MM regarding robbery of Rs.2,525/-. Therefore, under what circumstance the amount of robbery was changed, is the question which was not explained by this witness.
(Pulastya Pramachala)
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13. In his 1st statement, PW-1 had claimed that he had visited a police post on the date of incident but his report was not written on that day. In his 2 nd statement also, this witness deposed that he had made a complaint to Police Post Gokal Puri after this incident. However, in his 3rd statement given before this court, this witness came up with a different set of facts, to say that after the incident he went to his home. From his home, the witness went to the office of ld. DCP at Seelampur and gave his written complaint in that office. On same day, he filed another complaint in Police Post Meet Nagar. All such statements of this witness are in contradiction to his previous statements and were introduced for the first time before this court. It is worth to note-down that the time of alleged incident was mentioned as 06:00 pm. So after the incident having taken place at 06:00 pm, this witness went to his home and thereafter, he came to office of ld. DCP at Seelampur and gave his written complaint. It is difficult to assume the office of DPC would have working so as to accept any complaint at late hours i.e. after 06:00 pm and somewhere around 07:00 pm. Unlike a police station, office of DCP does not remain open for public dealings for 24 hours.
14. During his cross-examination, the witness had filed copies of two different complaints, given to police by him after this incident. As per the 1 st copy i.e. Mark PW-1/DA, this witness had given his written complaint on 05.12.1995 to I/C, Police Post Meet Nagar and had given a copy of that complaint in the office of ld. DCP on 05.12.1995 itself. Thus, this document filed by the witness contradicts his stand that he had visited office of ld. DCP and Police Post Meet Nagar on same day after the incident. In that situation, there remains a vacuum to explain that what was the step taken by PW-1 after the alleged incident. The 2nd copy of complaint i.e. Mark PW-1/DB is a complaint made by this witness in Police Post Harsh Vihar on 05.12.1995. This was the complaint (Pulastya Pramachala) Page no. 8 of 10 ASJ (Shahdara) Karkardooma Courts/Delhi FIR No.616/95 PS : Nand Nagri in respect of incident taken place with accused, who had allegedly physically assaulted and abused the witness on that day. Thus, both the complaints to police were made on same day i.e. on 05.12.1995. This situation is inclusive of a possibility of making some artificial and afterthought allegations against the accused.
15. It is admitted fact that the accused was known to PW-1 and he was residing in the same street, after 2-3 houses from his house. This witness did not speak about any previous dispute with the accused and denied the suggestions given to him before this court, that he had a dispute around 10-15 days prior to the alleged incident, over the issue of return of a loan, which was allegedly given to him by father of accused. If it is to be assumed that there was no previous enmity between the parties, then it becomes a bit unnatural on the part of accused to rob his neighbor in broad-daylight, so as to get identified by him, thereby leaving a scope for his prosecution by complainant. Therefore, the absence of any immediate steps being taken by PW-1 after the alleged incident and the improbability of the accused taking a decision to rob his neighbor in broad-daylight, raise a question over the credibility of the allegations made by PW-1.
16. While analyzing credibility of the testimony of PW-1, I referred to his two previous statements, though PW-1 was not confronted with any of these two statements by ld. LAC on behalf of accused, during his examination before the court. However, since both these statements are part of judicial record being statement given on oath before the court, I do not find any impediment in making a comparison of the statements given by same witness in respect of same incident before the court at different time.
17. Other pieces of evidence led by prosecution are simply related to registration of FIR on the basis of a complaint given by PW-1 before ld. MM and arrest of (Pulastya Pramachala) Page no. 9 of 10 ASJ (Shahdara) Karkardooma Courts/Delhi FIR No.616/95 PS : Nand Nagri accused by the then IO i.e. PW5 and thereafter, arrest of accused by another official after the accused was declared Proclaimed Offender in this case. Such evidence do not have any bearing on the alleged incident. There is no other kind of evidence in the form of any scientific evidence or in the form of recovery of robbed amount or in the form of account of facts given by any other eyewitness, to connect the accused with the alleged incident. DECISION :-
18. Therefore, I find it difficult to raise presumption of the guilt of the accused for alleged charges, solely on the basis of testimony of PW-1, especially in view of contradictions and improbabilities mentioned by me herein-above. Hence, accused Satish is given benefit of doubt and is acquitted of the charges.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA)
today on 10.06.2016 Additional Sessions Judge (Shahdara),
(This judgment contains 10 pages) Karkardooma Courts, Delhi
(Pulastya Pramachala)
Page no. 10 of 10 ASJ (Shahdara)
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