Delhi District Court
Of Time. In This Regard Reliance Can Be ... vs . on 28 February, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE02
SHAHDARA, KARKARDOOMA COURTS, DELHI
Presided by Sh. Achal Tyagi
State v. Ram Kishan Meena & ors.
FIR No.367/02
Section 392/411/34 IPC
PS M.S. Park
UID No.02402R0267082003
JUDGMENT
Serial no. of the case : 220/MSP
Date of commission of offence : 08.12.2013
Date of institution of the case : 08.12.2013
Name of the complainant : Mohd. Shahbaz S/o Mohd.
Akbar R/o E44/444, Jhuggi,
New Seemapuri, Delhi
Name of accused, parentage &
address : (1) Ram Kishan
S/o Sh. Rewad Mal Meena
R/o Village Navbas,PS Nagal
Rajavatan, Distt. Dausa,
(Rajasthan).
(2) Jai Prakash Meena
S/o Sh. Manphool Meena
R/o Village Nitania, PS Nagal
Rajavatan, Distt. Dausha,
(Rajasthan)
(3) Ram Avtar Meena
FIR No.367/02 State v. Ram Kishan Meena Page 1 of 16
S/o Sh. Roop Chand Meena
R/o Village Malvaas, PS Nagal
Rajavatan, Teh. Dausa,
(Rajasthan).
Offence complained of : Section 392/411 IPC
Plea of the accused : Pleaded not guilty.
Date of reservation of order : 23.02.2015
Final order : Conviction
Date of Judgment : 28.02.2015
Brief facts of the case and the reasons for the decision :
1. Briefly stated the accused persons are facing trial on the allegations that on 23.10.2002 at about 1.10 am at Moti Ram Road, MS Park, Delhi the accused persons in furtherance of their common intention committed robbery of Rs. 450/ which the complainant was carrying. After completion of the investigation charge sheet was filed for the offence punishable U/s 392/34 IPC and U/s 411 IPC. Charge was accordingly framed against the accused persons U/s 392/34 IPC and U/s 411 IPC to which the accused persons pleaded not guilty and claimed trial.
2. In order to prove its case prosecution has examined 04 witnesses.
PW1 HC Santosh Kumar is the duty officer and he registered the FIR which is Ex. PW1 on 23.10.2002.
PW2 Ct. Iqbal Khan is the eye witness and he has stated that on FIR No.367/02 State v. Ram Kishan Meena Page 2 of 16 23.10.2002 he was on patrolling duty with Ct. Parmod and around 1:30 a.m he heard hue and cry of 'Pakdo Pakdo' at Moti Ram Road. That PW2 apprehened the accused persons with the help of the complainant. That Rs.450/ was recovered from the possession of accused Jai Prakash and the same was put in pullanda and sealed with the seal of KCS vide seizure memo Ex. PW2/B. That rukka was prepared on the complaint of the complainant and thereafter FIR was registered. That accused persons were arrested and persnally searched vide memo Ex. PW3/C to Ex. PW3/H. PW2 correctly identified the accused persons and the case property.
The complainant Pramod Kumar in the present case was examined as PW3. PW3 has stated that one day at around 12:00 to 1:00 a.m at night all the three accused persons came to him and asked him to go to Shahdara with them. That PW3 who is an auto rickshaw driver took them in his TSR towards Shahdara where the accused persons asked him to turn his TSR. That the accused persons immediately thereafter snatched Rs.450/ from the pocket of the complainant. That PW3 raised hue and cry on which the police persons apprehended the accused persons and the money of the complainant was recovered. That police recorded the statement of the complainant which is Ex. PW3/A and that currency notes were seized vide Ex. PW3/B and accused persons were arrested and personally serached vide memos Ex. PW3/C to Ex. PW3/H. FIR No.367/02 State v. Ram Kishan Meena Page 3 of 16 The IO of the case was examined as PW4. PW4 has stated in his testimony that on 22.10.2002 he was posted at PS MS Park and alongwith Ct. Iqbal and Ct. Parmod was on patrolling duty. That PW4 on hearing the noise 'Pakdo Pakdo' reached at Moti Ram Road. That PW4 saw the complainant was running after the accused persons and he with the help of constables apprehended the accused persons. That PW4 formally searched the accused persons and Rs.450/ was recovered from the possession of accused Jai Prakash which was seized by him. That PW4 thereafter recorded the statement of complainant which is Ex. PW3/A where after rukka was preapred and FIR was registered. That accused persons were arrested and personally searched vide Ex.PW3/C to Ex.PW3/H. Thereafter, PE was closed.
3. All the incriminating evidence was put to accused persons and their statement U/s 313 Cr.P.C was recorded. In reply to the incriminating evidence accused Jai Prakash Meena has stated that allegation made against him are false and witnesses have deposed falsely. It is stated that the recovery of Rs.450/ has been planted by the police and that he has been falsely implicated in this case. Accused Ram Kishan Meena in his statement U/s 313 Cr.P.C has taken the similar stand and has stated that he has been falsely implicated in this case. Accused Ram Avtar Meena has also taken a similar defence and has stated that he has been falsely implicated in this case. Accused persons stated that they wish to lead evidence in their defence and FIR No.367/02 State v. Ram Kishan Meena Page 4 of 16 accordingly the matter was put for defence evidence. The accused persons despite repeated opportunities did not lead any evidence and thereafter D.E stood closed vide order dt. 09.02.15 and the matter was put up for final arguments.
4. I have heard the rival submissions on behalf of Ld. APP and Ld. counsel for the accused and carefully perused the record.
5. It is important to note that prosecution in the present is required to show that accused persons had committed robbery against the complainant to prove their charge against the accused persons. The complainant in the present case is the most important witness and he has been examined as PW3. PW3 in his testimony has clearly stated that at around 12.00 to 1.00 am on the date of incident the accused persons took the TSR of the complainant and thereafter asked him to turn the TSR whereafter the accused persons snatched Rs.450/ from the pocket of the complainant on which the complainant raised hue and cry. It is stated that police persons present apprehended the accused persons and thereafter the stolen money was recovered from the accused persons. The prosecution has filed on record the arrest memo and seizure memo of the accused persons which are Ex.PW3/C to Ex.PW3/H which bears the signature of the complainant thereby substantiating the allegations of the complainant. The prosecution witness PW4 has stated that on hearing the noise he saw the complainant running after three persons on which PW4 with the help FIR No.367/02 State v. Ram Kishan Meena Page 5 of 16 of constable apprehended the accused persons. The testimony of PW4 and complainant is also substantiated by PW2 who has stated that on hearing the noise of 'Pakro Pakro' he apprehended the accused persons and thereafter Rs.450/ was recovered from accused Jai Prakash. It is stated that the complainant disclosed that accused persons had taken his money whereafter rukka was prepared and later FIR was registered. The accused persons have been identified not only by the complainant but also by the police witnesses. It is also important to note that the robbed amount of Rs.450/ has been exhibited as Ex.PW3/B and has been duly proved by the prosecution by examining both complainant and police witnesses. The prosecution in this manner has substantiated its case of alleged theft/robbery against the accused persons. I may mention here that as per the allegations there was no hurt or threat of hurt given or used against the complainant by the accused persons and in such circumstances I hold that the offence of robbery is not made out against the accused persons. In the present case it is alleged that the accused persons had used criminal force against the complainant while committing theft of Rs 450/ and therefore the accused persons are liable for having committed offence under section 356/379 IPC.
6. I shall now come to the objections raised by Ld. Counsel for the accused persons. It is averred that in the present case there are inconsistencies in the testimony of prime witness PW3. It is stated that it is only after clarification by Ld. APP that complainant could FIR No.367/02 State v. Ram Kishan Meena Page 6 of 16 remember that the auto rickshaw had first been hired by accused Ram Avtar and later on accused Ram Kishan and Jai Prakash sat in the TSR. It is also stated that earlier the complainant had stated that money was snatched by the accused persons and it was later recovered from them while later it was clarified by Ld. APP by cross examining the complainant that accused Ram Kishan had snatched Rs.450/ from the complainant and had handed over to Jai Prakash and the said Rs.450/ was recovered from the possession of accused Jai Prakash. It is averred that such contradictions raise doubt as to to the credibility of the said witness.The complainant in his examination has stated that he had forgotten about the said details as the incident is almost 09 years old. I may mention here that the averments of the counsel for accused in respect of contradiction in the testimony of complainant holds no ground. I may mention here that some contradiction is bound to arise in the testimony of witness when they are examined after a long period of time. In this regard reliance can be placed on State of Punjab Vs. Wassan AIR 1981 SC 697, wherein it was held that:
"[w]here the witnesses are examined at the trial 17 months after the incident such discrepancies in regard to collateral and subsidiary facts or matters of details occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their FIR No.367/02 State v. Ram Kishan Meena Page 7 of 16 examination. Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case."
7. Reliance can also be placed on State of H.P. v. Lekh Raj [(2000) 1 SCC 247 wherein while dealing with discrepancies, contradictions and omissions it has been held:
"Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [(1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony.
8. In the circumstances of the present case I hold that the FIR No.367/02 State v. Ram Kishan Meena Page 8 of 16 discrepancies pointed out by the accused persons are not material contradictions and the testimony of the complainant cannot be discarded on the ground of such discrepancies particularly when the testimony of the complainant has been substantiated in material particulars by other evidence on record. I shall now come to the contention of the counsel for accused persons as to the complainant turning hostile in the case. It is stated that the complainant failed to identify the accused persons when he was recalled for cross examination and accordingly there is no incriminating evidence against the accused persons . In this regard it is relevant to note that the accused persons were correctly identified by the complainant in his examination on 06.08.11 whereafter the testimony of complainant was closed. The complainant however was lateron recalled for cross examination on the application of the accused persons U/s 311 Cr.P.C. The complainant in his cross examination on 06.06.13 has stated that he cannot tell exactly as to who had snatched his money. The complainant has also stated that the police came at the spot after about one hour and that nobody was present when the police came. It is also stated that statement of the complainant was recorded in the police station. Complainant has also stated that police did not tell him from where the money was recovered. Complainant has also stated that he cannot identify the accused persons. The counsel for accused has stated that testimony of the complainant dt. 06.06.13 cannot be FIR No.367/02 State v. Ram Kishan Meena Page 9 of 16 discarded and as per the said testimony the complainant has not deposed anything against the accused persons.
9. In the present case, the complainant has deposed twice and in his deposition on 06.08.11 the complainant has correctly identified the accused persons and has alleged that he was robbed by the accused persons. The complainant however in his testimony on 06.06.13 has stated that he cannot identify the accused persons. In this regard it is relevant to note that the subsequent denial by the complainant to identify the accused persons cannot discredit his testimony as a whole. It is quite possible that the complainant might have been won over by the accused persons in the intervening period between the two depositions which was of almost two years. In this regard reliance can be placed on Deepak vs State delivered by the Hon'ble Delhi High Court on 3 December, 2013 wherein the court while dealing with a similar issue has observed as under :
" The law is now well settled that merely the witness is declared hostile, whole of his evidence is not liable to be thrown away. In Crl.A.No. 432/2010, 'Naresh Kumar vs. State' decided on 04.09.2013, this Court observed : "18. 1991 Cr.L.J. 2653 (1), Khujji alias Surendra Tiwari V. State of M.P is a direct authority on the point in hand. In that case also, examinationinchief of the witness was recorded on 16.11.76, when he identified all the assailants by name. His crossexamination commenced on 15.12.76. In that cross examination, he stated that since the accused had their backs towards him, therefore, he could not see their faces. On the basis of that statement, it was submitted that evidence regarding identity of FIR No.367/02 State v. Ram Kishan Meena Page 10 of 16 the accused was rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification of such a wavering witness. Hon'ble High Court came to the conclusion, which was up held by Hon'ble Apex Court that during one month period that elapsed since the recording of his examinationinchief, something transpired which made him shift his evidence on the question of identity to help the appellant. His statement in cross examination on the question of identification of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examinationinchief. As such, it was observed that there was no material contradiction to doubt his testimony. "
10. I may also add here that there can be many reasons due to which the complainant changed his testimony when he was recalled for cross examination. In this regard I may place reliance on the following authority of Hon'ble Apex Court in Krishan @ Gola Mochi vs. State of Bihar, 2002 (6) SCC 81, where the court while dealing with a similar issue has observed as under:
"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of crossexamination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him FIR No.367/02 State v. Ram Kishan Meena Page 11 of 16 by the skillful crossexaminer and at the times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days, it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent."
11. In such circumstances the possibility of PW3 having been won over by dubious means when he came for re examination cannot be ruled out. I may reiterate that the testimony of the complainant recorded earlier cannot be discarded for the reason that the complainant had resiled from his earlier statement. The only effect of the said resiling would be that the testimony of the complainant would require greater scrutiny. In the present case, the testimony of the complainant is also supported by the testimony of PW2 HC Iqbal and by PW4 SI Karam Chand. The testimony of the complainant is also corroborated by the arrest memo and seizure memo on record which bears the signature of the complainant on each page. I may also mention that the case property which has been exhibited and proved in this case also corroborates the testimony of the complainant. In such facts and circumstances of the case, I am of the view that the testimony of complainant and other witnesses has been properly corroborated and accordingly no aspersions can be cast on the FIR No.367/02 State v. Ram Kishan Meena Page 12 of 16 testimony of the prosecution witnesses.
12. The accused persons in their statement U/s 313 Cr.P.C have taken the plea that they have been falsely implicated in the present case and they wish to lead evidence in their defence. The accused persons however have also failed to examine any witness from their side to counter the averments of the prosecution despite opportunities granted to them. The accused persons have also no where alleged that the complainant was having any enemity towards the accused persons or that they were on inimical terms so that the complainant would falsely implicate the accused persons. The prosecution on the other hand has proved its case beyond reasonable doubt by reliable testimony.
13. In the facts and circumstances of the case and on the basis of the evidence adduced and witnesses examined I am of the view that the prosecution has proved its case beyond reasonable doubt against the accused persons. Accordingly, the accused persons namely Ram Avtar Meena, Ram Kishan and Jai Prakash Meena are held guilty of the offence U/s 356/379 IPC and are convicted for the said offence. To be heard separately on sentence.
Announced in the Open Court Achal Tyagi
th
on this 28 February, 2015 Metropolitan Magistrate
Karkardooma Courts, Delhi
The judgment consist of 13 pages and all pages have been signed. Let the copy of the order be placed on the official website of District Court.
FIR No.367/02 State v. Ram Kishan Meena Page 13 of 16IN THE COURT OF METROPOLITAN MAGISTRATE02 SHAHDARA, KARKARDOOMA COURTS, DELHI Presided by Sh. Achal Tyagi State v. Ram Kishan Meena & ors.
FIR No.367/02Section 392/411/34 IPC PS M.S. Park UID No.02402R0267082003 ORDER ON THE POINT OF SENTENCE Present : Ld. APP for the State.
All convicts with counsel.
Arguments on the point of sentence heard.
Counsel for convicts has prayed for leniency stating there there is no previous involvement of the convicts and convicts are sole bread earner of their family. Previous conviction recport of the convict is not on record. However counsel for convicts have stated that there is no previous involvement of the convicts in any other case. Heard. Convict is convicted for the offence U/s 379/356 IPC.
The sentencing is a delicate act in which the Court is required to take the over all view of the facts and circumstances of the FIR No.367/02 State v. Ram Kishan Meena Page 14 of 16 case and the Court cannot be oblivious of the fact that the sentence should serve prolific purpose of serving the society at large. The convict must be awarded such a sentence, which discourages the other like minded people of the society from entering the world of crime. However, a fine balance is required to be maintained amongst the theories of punishment, while sentencing the convict. No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be drawn to combat crimes.
In the present case the convicts are of young age. It is also stated that convicts have faced trial for a period of almost 13 years. Keeping in view the nature of the offence and the given facts and circumstances of the present case and taking into consideration, economic, social and family background of the convicts, I sentence the convicts to simple imprisonment for the period of two years and fine of Rs.5,000/ each failing which in default the convict shall undergo SI for a period of two months. Copy of the order be given to the convict free of cost.
Announced in the Open Court
today 21st day of March, 2015 Achal Tyagi
Metropolitan Magistrate
Karkardooma Courts, Delhi
At this stage, an application u/s 389 Cr P.C for suspension FIR No.367/02 State v. Ram Kishan Meena Page 15 of 16 of the sentence is moved by the convict through his counsel today in the Court. Heard. Allowed. Sentence of the convict is suspended till 21.04.15 to enable him to file an appeal or to serve the sentence. Convicts are admitted to bail on his furnishing a personal bond and surety bond in the sum of Rs. 20,000/ Bail Bond furnished and accepted till 21.04.2015.
Announced in the Open Court
today 21st day of March, 2015 Achal Tyagi
Metropolitan Magistrate
Karkardooma Courts, Delhi
All pages signed.
FIR No.367/02 State v. Ram Kishan Meena Page 16 of 16