Delhi District Court
State vs Mohd. Amjad on 16 March, 2023
IN THE COURT OF MS. SHALINDER KAUR
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH - EAST, SAKET COURTS, NEW DELHI
SC No. 429/2021
FIR No. 355/2021
PS JAMIA NAGAR
U/s 392/393/394/397 IPC
STATE Versus MOHD. AMJAD
S/o Mohd. Salim
R/o M-79, 1st Floor,
Gali No.8, Batla House,
Jamia Nagar, New Delhi.
Date of Committal : 12.11.2021
Conclusion of Arguments : 24.02.2023
Judgment Pronounced on : 16.03.2023
JUDGMENT
1. The prosecution has filed the present charge sheet against accused Mohd. Amjad under Section 392/393/394/397 of the Indian Penal Code, 1860 (hereinafter referred as "IPC").
2. The facts of the prosecution case as revealed from the charge sheet, in brief, are that on receipt of DD No.86A dated 07.08.2021 regarding 'assault with Rod on head by a mobile thief', SI Rohit Chahar alongwith HC Bhajan Lal reached at Chandan Tea Stall near Chota Barat Ghar, Jamia Nagar, New Delhi and came to know that injured Salman had been shifted to Hospital. After discharge from hospital, injured Salman came to SC No. 429/21 Page No. 1 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar the police station and got recorded his statement, wherein he stated that on 07.08.2021 at about 9.00 PM, while returning to his house from his work place i.e. Imran Glass House Muradi Road, Jamia Nagar, the complainant was robbed of his mobile phone by the accused at Chandan Tea Stall. Accused Amjad @ Ghajni who was also standing there and absconded with his mobile phone. The complainant ran after him and caught him near a shop at Sailing Club Road and snatched his phone from the accused. On this, accused Amjad picked up an iron rod and gave beating to the complainant due to which complainant suffered injuries on his head and hand. On the said statement of the complainant, an FIR under Sections 392/393/394/397 IPC was registered against the accused. During investigation, the Investigating Officer (IO) prepared the Site Plan at the instance of injured/ complainant. Accused Mohd. Amjad was arrested at his pointing out. Accused was interrogated and his disclosure statement was recorded. After recording statements of witnesses and completion of investigation, charge-sheet was filed against the accused before the Court of concerned Metropolitan Magistrate on 27.10.2021 for trial of the accused for the offences punishable 392/393/394/397 IPC.
3. The copies of the charge-sheet and annexed documents were supplied to the accused in compliance of provision of Section 207 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code') by the Court of Metropolitan Magistrate SC No. 429/21 Page No. 2 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar and the case was committed vide order dated 02.11.2021 to Court of Sessions. The case was assigned to this Court for trial in accordance with law.
4. On 26.11.2021, Charge for offence punishable under Section 394/308 IPC was framed by the Ld. Predecessor against the accused who pleaded not guilty to the charge and claimed trial.
5. During trial, on 18.11.2022 accused made a statement under Section 294 Cr.PC admitting the contents and genuineness of the following documents:
a) Certificate under Section 65B of Indian Evidence Act for FIR as Ex. A-1.
b) Site Plan dated 08.08.2021 prepared by ASI Ramesh Chand of the place of first incident as Ex. A-2.
c) Site Plan dated 10.08.2021 of the recovery of the weapon of offence as Ex. A-3.
6. In order to prove its case, the prosecution examined 8 witnesses i.e. Duty Officer/ ASI Sohan Pal as PW1; IO/SI Dheeraj as PW2; the complainant/ injured Mohd. Salman as PW3;, Dr. Nibedita Ayan as PW4; HC Rajbir as PW6; SI Rohit Chahar as PW7 and HC Sanjay as PW8.
7. PW1 ASI Sohan Pal deposed that on 07.08.2021, he was posted at police station Jamia Nagar as Duty Officer. At about 02:10 AM, on receipt of Tehrir from SI Rohit, he recorded the SC No. 429/21 Page No. 3 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar FIR No.355/2021 under Sections 392/393/394/397 IPC. On the instructions of SHO, the said FIR was marked to ASI Ramesh Chand for further investigation. PW1 proved the copy of the FIR as Ex.PW1/A.
8. SI Dheeraj was the third Investigating Officer of the case and was examined as PW2. He deposed that on 23.09.2021, he was posted in police station Jamia Nagar and the file of the present case was marked to him. He further deposed that he filed the charge-sheet of the present case in the Court on 09.10.2021.
9. The prosecution has examined its star witness i.e. injured/ complainant Mohd. Salman as PW3. He is the material witness of the prosecution case being the complainant, his testimony shall be dealt with in detail subsequently.
10. PW4 is Dr. Nibedita Ayan, Ex. Junior Resident, AIIMS Trauma Centre. The witness deposed that on 07.08.2021, she examined the injured Salman. According to PW4, the injured had sustained laceration over scalp of size 4X1 cm. PW4 proved the MLC of the injured as Ex.PW4/A.
11. ASI Ramesh Chand, the second Investigating Officer examined as PW5 deposed that after registration of FIR, he received the original rukka and the copy of FIR as the further investigation of the case was marked to him by the SHO. He deposed that he alongwith Constable Rajbir went to the spot. Complainant also accompanied him to the spot from the police SC No. 429/21 Page No. 4 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar station. PW5 prepared the site plan at the instance of complainant which is Ex.PW5/A. Thereafter, he recorded supplementary statement of complainant under Section 161 Cr.PC. Further investigation of the case was marked to IO/ SI Rohit.
12. PW6 HC Rajbir deposed that on 08.08.2021, he joined the investigation of the present case with IO/ ASI Ramesh. He deposed that they along with the complainant went to Muradi Road, Karistan Chowk, Jamia Nagar, New Delhi in search of accused Amjad who could not be found on that day. He deposed that on that day, IO/ ASI Ramesh Chand prepared the site plan at the instance of the complainant. He further deposed that on 09.08.2021 at about 4.00 PM, on the instructions of IO/SI Rohit Chahar, he along with the complainant went in search of accused Amjad who was apprehended near the jungle situated near Noor Nagar Hills on the pointing out of the complainant. The accused was brought to the police station where he was interrogated by IO/SI Rohit Chahar and his disclosure statement Ex.PW6/A was recorded. The witness proved the arrest memo of the accused as Ex.PW3/B and his personal search memo as Ex.PW6/B. PW6 further deposed that thereafter, the accused got recovered an iron rod used by him during assault. He proved the seizure memo of iron rod as Ex.PW6/C and its sketch as Ex.PW6/D. Lastly, PW6 got the accused Mohd. Amjad medically examined in AIIMS Hospital. The witness correctly identified the accused as well as the case property.
SC No. 429/21 Page No. 5 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar
13. PW7 is the first Investigating Officer SI Rohit Chahar. During his testimony, he deposed that on 07/08.08.2021, DD No.86-A was marked to him regarding assault by a thief with rod while snatching a mobile. He further deposed that he along with HC Bhajan Lal reached at the spot i.e. near Chota Barat Ghar, Jamia Nagar, New Delhi where they came to know that the injured Salman was taken to hospital. After discharge from hospital, injured Salman came to the police station. He produced his prescription slip of JPN&TC, AIIMS, New Delhi wherein the injury was mentioned - 'laceration over scale 4 X 0.5 cm'. PW7 proved the said prescription slip as Ex.PW7/A. Thereafter, he recorded the statement of injured which is Ex.PW3/A. The witness further deposed that on the basis of Ex.PW3/A & Ex.PW7/A, he prepared a rukka Ex.PW7/B which was handed over to the Duty Officer for registration of FIR and thereafter, the present case was marked to ASI Ramesh. PW7 deposed that on 09.08.2021, further investigation of the present case was again marked to him. On that day, during noon time, at his instructions, IO/ ASI Ramesh Chand and Beat Constable Rajbir along with the complainant went in search of the accused in the area of Jamia Nagar. At around 9.00 PM, Ct. Rajbir along with complainant and the accused Mohd. Amjad came at the police station. Accused was interrogated by him and he recorded the disclosure statement of the accused which is Ex.PW6/A. He also proved the arrest memo and personal search memo of the accused as Ex.PW3/B & Ex.PW6/B respectively. PW7 further deposed that SC No. 429/21 Page No. 6 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar thereafter, the accused led him and Ct. Rajbir to the place of incident and he pointed out the place where he had robbed the complainant and took away his mobile phone. The witness proved the said pointing out memo as Ex.PW7/C. He also deposed that then, the accused took PW7 and Ct. Rajbir took to Ram Manohar Lohia Gate at Okhla Head Rod where he pointed towards garbage and got recovered an iron rod. PW7 prepared sketch of the said iron rod Ex.PW6/B and the iron rod was seized vide seizure memo Ex.PW6/C. He also prepared the pointing out memo of place of recovery which is Ex.PW7/D. Thereafter, the accused was got medically examined by Ct. Rajbir. PW7 also deposed that during investigation, he tried to search for CCTVs but he found that no CCTV Camera was installed near the spot. The witness correctly identified the accused and the case property.
14. The prosecution has examined its last witness HC Sanjay as PW8 who deposed that on 07.08.2021, he was posted as Duty Officer in police station Jamia Nagar. On that day, he received a call regarding apprehension of a thief who assaulted with rod while robbing a phone. The said information was recorded by him vide DD No.86-A. He proved the same as Ex.PW8/A.
15. The prosecution through the testimony of witnesses produced by it has proved various documents on the record filed along with the charge-sheet. DD No.86-A dated 07.08.2021 is Ex.PW8/A, copy of the FIR is Ex.PW1/A, statement of SC No. 429/21 Page No. 7 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar complainant/ injured is Ex.PW3/A, MLC of the complainant/ injured is Ex.PW4/A, prescription slip of the injured is Ex.PW7/A, rukka is Ex.PW7/B, Site Plan is Ex.PW5/A, arrest memo and the personal search memo of accused are Ex.PW3/B and Ex.PW6/B respectively and his disclosure statement is Ex.PW6/A. Pointing out memo of place of occurrence and the place of recovery are Ex.PW7/C and Ex.PW7/D respectively. Seizure memo of weapon of offence i.e. iron rod and its sketch are Ex.PW6/C & Ex.PW6/D respectively.
16. After closing of prosecution evidence, on 08.09.2022, statement of accused Mohd. Amjad under Section 313 Cr.P.C. was recorded. All the incriminating evidence on record was put to him. The accused either denied the correctness of prosecution evidence or expressed his ignorance about the same. He stated that he has been falsely implicated in this case. The accused has not examined any witness in his defence.
ARGUMENTS
17. Sh. Salim Khan, Ld. Chief Public Prosecutor addressed arguments on behalf of the State and Sh. Sunder Lal, Legal Aid Counsel (LAC) argued the case on behalf of the accused. Apart from hearing the arguments, I have also perused the evidence oral and documentary placed on record as well as the case law cited on behalf of the State.
SC No. 429/21 Page No. 8 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar
18. The Ld. Chief Public Prosecutor unfolded the case of the prosecution and submitted that the prosecution, from the concrete evidence led by it, has proved the guilt of the accused beyond reasonable doubt. He referred to the testimony of the complainant/injured PW3 - Salman and submitted that the testimony of PW3 is credible and is corroborated by the other prosecution witnesses. He further referred to the depositions made by the police witnesses and submitted that the entire evidence led by the prosecution is cogent and reliable which proves that accused had caused injuries to the complainant Salman while robbing him of his mobile phone and thereby committed an offence punishable under Section 394/308 IPC.
19. It was urged on behalf of accused by Sh. Sunder Lal, Ld. LAC that the prosecution case mainly rests on the testimony of PW3 - Md. Salman but the same is not only self-contradictory but also contradicts the prosecution version also. His testimony is highly doubtful as he has completely flipped over his deposition made during examination-in-chief regarding incident and identity of weapon of offence while he was cross-examined, therefore, it is evident that the testimony of PW3 is patently false. It was argued that according to the deposition of PW3, offence punishable under section 394 IPC is not made out as the witness has not testified that the accused had robbed him of his mobile. He has merely testified that PW3 had voluntarily handed over his mobile to the accused who tried to run away with it, therefore, at SC No. 429/21 Page No. 9 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar the most an offence for misappropriation of mobile phone is made out against the accused. It was also argued that the prosecution has further miserably failed to prove the offence punishable under Section 308 IPC. The recovery of the iron rod i.e. the weapon of offence is doubtful as the same was got recovered from a public place and no public witness was joined during recovery proceedings. Moreover, PW3 could not identify the rod Ex.P-1. It was argued that the prosecution has also failed to prove the identity of the accused beyond reasonable doubt as PW3 has testified that the accused was shown to him in the police station by the police and told him that he is the same person with whom his quarrel had taken place. The Ld. LAC argued that in this backdrop, the testimony of PW3 cannot be relied upon and the prosecution case is unmerited as prosecution has failed to discharge the burden placed on its shoulders to prove the case beyond reasonable doubt, accordingly, the accused be acquitted.
20. To the contrary, Ld. Chief Prosecutor strongly rebutted the argument and submitted that PW3, the complainant had received injury caused by the accused with the help of rod while he was running from the spot after taking away the mobile of PW3. Also, the medical evidence supports the prosecution case. It was argued that from the testimony of PW3, it is apparent that the accused was known to him 2-3 years prior to the incident, therefore, the identity of the accused stands established through the testimony SC No. 429/21 Page No. 10 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar of PW3. It was submitted that in view of the concrete and cogent evidence led by the prosecution, the accused be convicted for the charges, framed against him. Reliance was placed on the judgment reported as Khujji @ Surendra Tiwari vs. State of Madhya Pradesh AIR 1991 SC 1853.
REASONS AND CONCLUSION
21. A serious doubt has been casted by the defence on the quality of the evidence adduced by the prosecution specifically that of injured/ complainant examined as PW3. The main contention on behalf of the accused is that PW3 is not only an interested witness but he has also not supported the case of the prosecution in true spirit, therefore, the accused cannot be convicted on his sole testimony without there being any corroboration from an independent source.
22. The law on appreciation of evidence as deposed by prosecution witnesses has been well settled by catena of judgments. It is relevant to refer to some of the judgments. In the case of Gulam Sarbar vs. State of Bihar (2014) 3 SCC 401, it has been held by Hon'ble Supreme Court that "conviction can be based on the testimony of a single eye witness which has passed the test of reliability and consistency with the information supplied in the FIR and material collected during the course of investigation. It is not the number of witnesses examined but the quality of evidence that is important whereupon the conviction can be based. In other words, the evidence must be weighed and not counted. The testimony of witness should pass the litmus test of SC No. 429/21 Page No. 11 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar cross-examination and stand the touch stone having element of truth and should be cogent, credible and trustworthy or otherwise".
23. In the case of State vs. Som Dutt Cr Case 10/2019, decided on 29 June, 2019 , it was held :-
"The complainant is a victim of offence in this case. The evidence of a victim must be given due weightage. His statement is generally considered to be very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicate someone else. Moreover, the testimony of a victim of offence has its own relevancy and efficacy as the wife has sustained injuries at the time and place of occurrence and this lends support to testimony that he was present during the occurrence. Thus, the testimony of a victim of offence is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. The evidence of the victim should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
15. In Abdul Sayed vs State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court laid down that : − "26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built − in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, AIR FIR No. 08/2015 10/28 State vs. Som Dutt 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh(2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors v. State of Rajasthan (2009) 10 SCC 477; Annareddy SC No. 429/21 Page No. 12 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar Sambasiva Reddy & Ors.v. State of Andhra Pradesh, AIR 2009 SC 2261 and Balraje alias Trimbak v. State of Maharashtra. (2010) 6 SCC 673."
16. In State of UP vs Naresh (2011) 4SCC 324 it was observed by Hon'ble Supreme Court that : − "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured FIR No. 08/2015 11/28 State vs Som Dutt witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh,(2010) 10 SCC 259].
17. The settled legal position is that the Court must attempt to, while appreciating the evidence of an eye − witness, separate the truth from falsehood and not reject an eye − witness testimony entirely only because there are some embellishments. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court explained the legal position as under: "The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness FIR No. 08/2015 12/28 State vs Som Dutt whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
18. Further, as explained in State v. Saravanan AIR 2009 SC 152, the Court can overlook "minor discrepancies on trivial SC No. 429/21 Page No. 13 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar matters" which do not affect "the core of the prosecution case". In State of U.P. v. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the Court to separate falsehood from the truth, in sifting the evidence". At the same time, the eye − witness testimony must be credible and reliable. It should not be contradicted by other eye − witnesses or by the medical and forensic evidence, if any.
19. In Rammi alias Rameshwar v. State of Madhya FIR No. 08/2015 13/28 State vs Som Dutt Pradesh AIR 1999 SC 256, it was observed : "When 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 the evidence of a 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 an 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".
24. In view of the above settled principles of law, the prosecution's case and the evidence adduced by it is to be considered.
25. The facts germane to the case are that; the genesis of the present case is DD No.86A recorded on 07.08.2021 which is to the effect, 'Batla House Stand Aggarwal Ke Samne, ek chor ko pakad liya tha, jisne phone chori kiya tha aur phir phone wapis lene par waha se rod maar ke chala gaya". At that time, SI Rohit Chahar was on night emergency duty and the DD No.86A was marked to him. He along with Constable Bhajan Lal reached at the spot at Chandan Tea Stall near Chota Barat Ghar, Jamia SC No. 429/21 Page No. 14 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar Nagar, New Delhi. He could not meet the complainant there but came to know that a person namely Salman was taken to hospital by the police. Thereupon SI Rohit and HC Bhajan Lal returned to the police station. After sometime, the injured Salman came in the police station after he was discharged from AIIMS Hospital and he handed over his prescription slip to SI Rohit. On the prescription slip, it was mentioned,'laceration over scale 4 X 0.5 cm over scalp'.
26. The injured Salman narrated the incident to SI Rohit Chahar stating that he was residing at H.No.A-228-A, Shaheen Bagh, New Delhi with his family and was doing private job. On 07.08.2021 around 9.00 PM, he was returning to his house after finishing his job work. He stopped at a shop namely 'Chandan Chai/ Gutke Wale Ki Dukaan', near Chota Baraat Ghar, Batla House to purchase Gutka. He was holding his mobile make Samsung key pad phone in his hand. At that time, accused Amjad @ Ghajni was also standing there. The complainant had often seen him standing near the said shop. Complainant further reported that the accused probably resides at Azeem Dairy and is a drug addict. The complainant started consuming Gutka while standing near the shop. Thereupon, Amjad @ Ghajni gave a fist blow in his stomach and asked the complainant to handover his mobile phone, else threatened to beat him more. Then he snatched the mobile phone from his hand and started running. The complainant chased him and caught him at a puncture SC No. 429/21 Page No. 15 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar repairing shop near Sailing Club Road and took back his mobile phone. At that time, Amjad picked up a rod from the shop and started beating the complainant with the rod. Consequently, the complainant received injuries on his head and hand. At that time, the accused again attempted to snatch the mobile phone from his hand. The complainant raised an alarm and public started gathering there. Thereupon, accused Amjad ran away from there. The complainant has alleged that his head was bleeding. Somebody from public called the PCR. The complainant requested the police to take action against accused Amjad.
27. The entire prosecution case revolves around the testimony of PW3 - complainant/ injured, so it is relevant to examine it in detail. PW3 - Complainant/ Mohd. Salman has deposed that on 07.08.2021, he was present at Chandan Tea Stall. Around 9.00 PM, he purchased Gutak from that Tea Stall and at that time, accused Amjad came towards the complainant and asked for his mobile by saying that he wanted to make a call. The complainant accordingly lent his mobile phone to him and he became busy in giving money to the shopkeeper. In the meantime, accused started running from the shop along with his mobile phone and PW3 chased the accused. PW3 has proved his complaint recorded by the police which is Ex.PW3/A. Most importantly, during cross-examination, PW3 has deposed that he knew the accused Amjad for last 2-3 years prior to the incident. He specifically denied the suggestion that due to confusion and SC No. 429/21 Page No. 16 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar being in state of intoxication, he gave the name of the accused as the offender. He further denied that the accused has been falsely implicated in this case.
28. Pertinently, the FIR has been lodged on the date of the incident i.e. 07.08.2021 and PW3 has named the accused in the FIR as he recognized the accused since he had often seen the accused standing near the Chandan Tea/ Gutka shop near Chhota Baraat Ghar, Batla House. Moreover, as per DD No.86A Ex.PW1/A, it is recorded that the assault was caused 'by one known'. Although, the accused has raised the defence that Ex.PW1/A was manipulated by PW8 - HC Sanjay, however, he could not challenge the correctness of Ex.PW1/A to prove that it was a manipulated document. Even in the MLC Ex.PW4/A, in the brief alleged history and examination, it is mentioned, 'assault by one known person at Okhla, Batla House'. It is, thus, evident that the complainant had often seen the accused prior to the incident and he recognized him. It is not that PW3 had seen the accused for the first time on the day of the incident and had identified him in the police station as told and shown to him by the police. Accordingly, there is no force in the argument, raised on behalf of the accused that the prosecution has failed to establish the identity of the accused beyond reasonable doubt or that the complainant had identified the accused at the instance of the police.
SC No. 429/21 Page No. 17 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar
29. It was next argued on behalf of the accused that the offence punishable under Section 394 IPC is not proved against the accused as the prosecution has miserably failed to establish that the accused had voluntarily caused hurt to the complainant while committing robbery. It was submitted that from the testimony of PW3, it emerges that PW3 had willingly handed over his mobile phone to the accused to make some call. The witness has not supported the case of the prosecution to the effect that the accused gave a fist blow in his stomach and asked PW3 to handover his mobile phone and thereafter also threatened to beat him more, in case he will not part with his mobile phone. It was also submitted that the witness was also not cross-examined by the prosecution after getting him declared hostile on the aforesaid allegation.
30. To appreciate the argument, it is relevant to reproduce Section 394 of IPC which reads as under :-
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
31. Section 390 IPC defines robbery as under :-
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, SC No. 429/21 Page No. 18 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar 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.
32. Needless to say, the prosecution has failed to prove that the accused has snatched the mobile phone from the hand of PW3 or that in order to commit the robbery, he had voluntarily caused hurt to the complainant. Evidently, PW3 had willingly handed over his mobile phone to the accused on his asking to make a call. But when attention of PW3 was distracted from the accused as he got busy in making payment to the shopkeeper for Gutka, the accused ran away from the spot along with the mobile phone. The complainant chased him to take back his mobile phone from the accused. During cross-examination, PW3 has denied the suggestion that the accused was having his own mobile phone with him or that he had not taken away his mobile phone as deposed by the witness. He also denied the suggestion that due to previous enmity, the witness has falsely implicated the accused in the present case. He further denied the suggestion that no such incident had occurred. From the evidence, it emerges that accused had an intention to deprive PW3 of his mobile phone, SC No. 429/21 Page No. 19 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar therefore, he ran away with the mobile phone after procuring it from PW3.
33. Pertinently, theft is defined under Section 378 IPC as 'the dishonest removal of movable property within the possession of any person without the consent of that person'. Dishonest intent plays a significant role in the definition of Section 378 IPC. Evidently, the accused had taken the mobile phone from the complainant on the pretext of making a call. After receiving the mobile without losing any time, he started running from the spot with the mobile phone. The complainant could recover his phone from the possession of the accused after chasing him and in order to flee, the accused caused injury on the person of the complainant with an iron rod. He had left the mobile phone near the cycle shop and ran away. The defence could not rebut the said evidence. The prosecution has, thus, proved that the accused has committed offence punishable under Section 379 IPC.
34. Now, coming to the Charge framed under Section 308 IPC. On the scrutiny of ocular testimony of PW3, it is evident that PW3 had received simple injury on his scalp as the accused had hit him with an iron rod. The witness was cross-examined to challenge his testimony. During cross-examination, he denied the suggestion that at the time of incident, he was under the influence of Ganja and thus, fell down on the ground and sustained injury on his head. He further denied that the accused had not hit him with a rod on his head or that the accused was falsely implicated SC No. 429/21 Page No. 20 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar in the case. It was forcefully argued on behalf of the accused that since, the iron rod was not identified by PW3 in his testimony, therefore, the prosecution has failed to prove that the accused had caused an injury on the head of the complainant with an iron rod. Needless to say, PW3 has not identified the weapon of offence i.e. the iron rod but he has categorically deposed that he had sustained injury as the accused had caused injury from his back so, he could not see the weapon of offence. Therefore, the injury was caused by the accused on the person of PW3 stands proved.
35. The medical evidence corroborates the testimony of PW3 regarding presence of injury on his scalp. PW3 was medically examined vide MLC Ex.PW4/A. PW4 Dr. Nibedita Ayan had examined the injured/ complainant on 07.08.2021 and had found a lacerated wound over scalp measuring 4X1 cm. The nature of injuries was opined to be 'simple', caused by 'blunt object'. The testimony of PW4 is unchallenged. It emerges from the evidence that PW3 had suffered 'simple injury' on his scalp caused by the accused.
36. It was also argued on behalf of the accused that from the evidence, led by the prosecution, it is not proved that the complainant/ injured suffered such injury which was likely to cause death of the complainant/ injured not amounting to murder, therefore, offence punishable under Section 308 IPC is not made out. Whereas, Ld. Chief PP submitted that the accused had caused injury on the head of the complainant with the iron rod SC No. 429/21 Page No. 21 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar Ex.P-1, the identity and recovery of which has been proved by PW6 and PW7, therefore, the offence committed by the accused falls within the ambit of Section 308 IPC.
37. It is necessary to note the provision under Section 308 IPC which reads as under :-
"Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
38. It is also important to refer to various judgments on the issue. In the case of Bishan Singh & Anr. vs. State, AIR 2008 SC 131, the accused persons were tried and convicted by the Trial Court for commission of offences under Section 147 and 308/149 IPC. In an appeal preferred by the accused persons against their conviction, their conviction was upheld by Hon'ble High Court. The injuries suffered by the complainant as per the injury report were:-
1. Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.SC No. 429/21 Page No. 22 of 27
State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar
3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth. 4/1 Abrasion 1 cm x = cm at lower lip right angle of mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.
7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint cm swelling around the injury.
8. Complain of pain in both lower legs and thigh, but no injury seen.
The injuries except one injury were opined to be simple. The accused persons preferred a further appeal against the judgment of Hon'ble High Court where it was observed that :-
"Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Section 323 and 325 thereof."SC No. 429/21 Page No. 23 of 27
State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar
39. In Ramesh vs. State, 2010 (I) JCC 796, the Hon'ble Delhi High Court altered the conviction from 308/34 to 323/34 by holding that "assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide". In Sunder vs. State, 2010 (1) JCC 700, Hon'ble Delhi High Court held "in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder and accused was held guilty for offence punishable under Section 323 IPC and not under Section 308 IPC." The same principle of law was reiterated in the case of Raju @ Rajpal and others vs. State of Delhi, 2014 (3) JCC 1894. In Ashok Kumar & Anr. vs. State of Delhi, Crl. Appeal No. 17/2011 decided on 20.02.2015, it was held that "injuries were opined by the doctor as simple caused by a blunt object. Nature of injuries is not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant." In Pawan Chaddha vs. State, Criminal Appeal 640/2011 decided on 27 January, 2016 by the Delhi High Court, it was observed as under:-
"In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the SC No. 429/21 Page No. 24 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death."
It was further observed that the Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant initially hit the complainant with a saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
40. In the present case, it is reflected from the evidence that after the assault on 07.08.2021 at 21.49.27, the injured was taken to Jai Prakash Narayan Apex Trauma Centre by the police. He was examined by PW4 as an MLC case. On examination, his other vitals were found to be normal but he smelled of alcohol. The visible injury found on the person of PW3 is a 'laceration wound on the scalp of size 4X1 cm'. He was treated in the hospital and was injected with Tetanus and Voveron. There is no history of admission of the injured in the hospital, probably, he was discharged on the same day. Evidently, PW3 had received injury on his scalp as he had tried to catch the accused after he had committed theft of his mobile phone and was escaping with it. In order to escape, he gave a blow with an iron rod on the head of PW3, resulting in injury as mentioned in MLC Ex.PW4/A. Nonetheless, the prosecution has not adduced cogent evidence to SC No. 429/21 Page No. 25 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar prove that the assault on complainant/ injured was pre-mediated but it is evident that it happened on the spur of the moment while the accused was trying to run away to save himself from being apprehended by the complainant. The prosecution has not adduced sufficient evidence to prove that the accused was having requisite intention or knowledge to cause culpable homicide not amounting to murder. Mere fact that the injury was inflicted on scalp of the complainant does not necessarily mean that the accused was having knowledge and intention to cause death of injured/complainant. The prosecution has only been able to prove that PW3 had sustained 'simple injury' at the hands of the accused.
41. In the adversarial system, every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In State of U.P vs. Shankar, AIR 1981 SC 897, it was observed SC No. 429/21 Page No. 26 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar that, "it is function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest."
42. To sum up, the prosecution, from its entire evidence adduced on the record, could prove offence punishable under Section 379/323 IPC against accused Mohd. Amjad by establishing that on 07.08.2021 at about 9.00 PM, he, with dishonest intention, removed the mobile phone from the possession of complainant without his consent thereby committed offence punishable under Section 379 IPC and also the accused voluntarily caused and inflicted simple injury on the scalp of the complainant/injured PW3. Accordingly, accused Mohd. Amjad stands convicted under Section 379/323 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 16th DAY OF MARCH 2023 (SHALINDER KAUR) PRINCIPAL DISTRICT & SESSIONS JUDGE, SOUTH-EAST, SAKET COURTS: NEW DELHI SC No. 429/21 Page No. 27 of 27 State vs. Mohd. Amjad FIR No. 355/2021 PS Jamia Nagar