Delhi District Court
Fir No. 696/15 5 State vs . Arif 1 Of 31 on 25 March, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI SC No. 10/16 FIR No. 696/15 PS Gokal Puri U/s 392/394/397/307/34 IPC State Versus Arif @ Mota S/o Sh. Babu Khan R/o H.No. D-217, Gali No.2, Brijpuri, Delhi. Date of Committal : 01.07.2016 Date of Arguments : 25.03.2017 Date of Pronouncement : 25.03.2016 JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 26.08.2015, a DD no. 6B was received by PCR made by one Ashad thereby informing that his brother had been stabbed. In pursuance of that DD, SI Habib Ahmad visited the spot of incident and thereafter FIR No. 696/15 5 State Vs. Arif 1 of 31 to GTB Hospital where injured Rashid was found hospitalized. IO collected MLC of injured and also recorded his statement. Injured Rashid disclosed in his statement that on the intervening night on 25/26.8.2015, he was coming back from Azad Pur Mandi and was going to his home via Brijpuri pulia under the influence of liquor. It is further stated that at about 12.30 am, he reached near pulia at gali no. 12, New Mustafabad Pulia when suddenly three assailants namely Arif @ Mota, JCL 'A' and Jahid/ Zahid, who were prior known to him, demanded Rs. 500/- and on his denial, they started quarreling with him. JCL 'A' caught him hold and Jahid stabbed on his neck and Arif @ Mota stabbed on his chest. All the assailants robbed injured for a sum of Rs. 17,500/- and throw him into drain and ran away. He raised alarm and Rizwan and Abid who were passing through there brought him out of that drain. Someone informed police and injured was removed to GTB Hospital. On the basis of this statement, rukka was prepared and FIR was registered. Accused Arif @ Mota and one JCL 'A' were arrested and charge sheeted, but accused Jahid/Zahid could not be arrested.
2. This charge sheet committed to this court against accused Arif @ Mota after compliance of Section 207 Cr.P.C.
3. This court has framed charge against the accused u/s 394/397/34 IPC on 14.07.2016 and accused pleaded not guilty and claimed trial.
FIR No. 696/15 5 State Vs. Arif 2 of 31
4. To prove the allegations, prosecution has examined PW1 Rashid, PW2 Ashad, PW3 Ct. Mahavir, PW4 Ct. Ravinder, PW5 (Rtd. SI) Rajender Prasad, PW6 HC Jagdish Singh, PW7 Ct. Nikesh, PW8 SI Habib Ahmed, PW9 SI Madan Gopal, PW10 Dr. Kartik, PW11 Abid, PW12 ASI Ashok, PW13 ASI Murari Lal and PW14 Rizwan and thereafter evidence was closed.
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C. and his statement was recorded. Accused has not preferred to lead defense evidence and DE was closed.
6. To prove the case, prosecution has examined following PWs as under:
6.1. PW1 Rashid has deposed that on the intervening night on 25/26.08.2015 at about 12.30 am, he was coming back to his house from Azad Pur Mandir under the influence of liquor and was crossing Shiv Vihar Pulia when accused Arif @ Mota, JCL 'A' and Jajid / Zahid having knives in their hands met him. They overpowered him near pulia and robbed him of Rs.17,500/- on the point of knife. It is further deposed that they show him their knives and Zahid caused stab injuries on his left chest and on his neck. It is further deposed that they threw him in a drain/ nala and ran away. He raised alarm and Rizwan and Abid reached there and took him out of that drain / nala FIR No. 696/15 5 State Vs. Arif 3 of 31 and removed to his house. He narrated the incident to his brother Ashad who made PCR call and PCR van removed him to GTB Hospital. It is further deposed that he remained hospital and discharged in morning on next day and police reached GTB hospital in morning hours and recorded his statement Ex.PW1/A. He has correctly identified accused Arif @ Mota present in court to be an assailant. He was not aware as to when and wherefrom accused Arif @ Mota was arrested by the Police, but he pointed the place of incident to Police and Police prepared the site plan of the spot at his instance.
6.1.1. During cross examination by Ld. Addl. P.P. after getting him declared hostile, he has deposed that accused Arif @ Mota, JCL 'A' and Zahid (not arrested) did not demand a sum of Rs. 500/- from him at a place near Pulia, but it is voluntarily deposed that Zahid (not arrested) demanded some money from him. It is further admitted that he refused to give money and accused started quarreling him. It is also admitted that JCL 'A' overpowered him and Zahid (not arrested) caused stab injury on his neck. It is also admitted that accused Arif @ Mota present before the court caused stab injury on his left chest and also snatched a cash of Rs.17,500/- out of his possession. It is also admitted that accused Arif @ Mota, his associates Zahid (not arrested) and JCL 'A' were known to him prior to the day of incident.
It is further admitted that he was medically examined in GTB Hospital and his MLC Ex.PW1/B was prepared. It is further admitted FIR No. 696/15 5 State Vs. Arif 4 of 31 that accused Arif @ Mota was arrested on his pointing out by the IO at about 10 a.m. on 02.03.2016 from T-point Brajpuri Pulia. It is further admitted that after the arrest, accused Arif @ Mota was taken to P.S. by IO and one Constable.
6.1.2. During cross examination by accused, he has deposed that at about 10.00 / 10.30 pm, he was coming from Azad Pur Mandi alongwith cash in his pocket and was going towards Pulia on foot when incident took place. It is further deposed that he was under the influence of liquor but had not consumed any substance ganja, charas etc. It is further deposed that at the time of incident, JCL 'A' Jahid and accused present before the court were present, but Arif @ Mota did not inflict knife injury to him but injuries were caused by Jahid, and JCL 'A' brought out money from his pocket. It is further deposed that he was removed hospital after the incident as became unconscious. His statement was recorded by police and it was not already recorded when he put his signature, but police did not read over that statement to him. He also did not go through his statement but his brother had gone through.
6.2. PW-2 Ashad has deposed that on 26.08.2015 at about 2.00 / 2.30 a.m., his injured brother Rashid was brought to his house by one Rizwan and Abid and his brother told him that Arif @ Mota, Zahid and JCL A had snatched cash of Rs. 17,500/- on the point of knife and also caused injuries on his neck and chest and thereafter FIR No. 696/15 5 State Vs. Arif 5 of 31 throw him into a drain / nala. It is further deposed that he made PCR call about the incident and PCR officials removed his injured brother to GTB Hospital. He also reached GTB hospital by his bike. Police officials also reached to hospital and recorded statement of his brother there. His brother was discharged from hospital on next day at about 9.00 or 10.00 a.m. 6.2.1. During cross examination by accused, he has deposed that he is not a witness to incident. It is further deposed that two boys, whose names he did not know, brought his injured brother Rashid to his home and as far as he remember, he made PCR call and PCR official reached there and removed his injured brother to hospital. It is further deposed that he did not go to the hospital in the police vehicle with his injured brother. It is further deposed that his brother was brought by two unknown boys to him and was not able to speak due to he did not tell anything about the incident to him, but two persons who brought his brother at his house told him that his brother Rashid was caused injuries by 2-3 persons. It is further deposed that they had also disclosed that one Zahid / Jahid caused injuries to his injured brother Rashid. It is further deposed that he alongwith his elder brother Javed reached GTB Hospital to meet to his injured brother by his two wheeler and reached GTB Hospital at about 3.30 a.m. on 26.08.2015. It is further deposed that police did not examine or record the statement of his injured brother in his presence. Police officials were present in GTB hospital when his FIR No. 696/15 5 State Vs. Arif 6 of 31 injured brother Rashid was discharged by the doctor from the hospital.
6.2.2. Ld. Addl. P.P. for the State has re-examined the witness again being changed his version during cross examined, but he has denied that two unknown boys had not brought his injured brother Rashid at his house or that Zahid snatched money from his brother or caused injuries to his brother. It is denied that he has deposed falsely at the instance of accused Arif @ Mota to save him being won over by him.
6.3. PW3 Ct. Mahavir has deposed that on 26.08.2015, about 8.00 p.m., he along with Ct. Ravinder noticed three boys near Chand Bagh Pulia, Gali No. 6, New Mustafabad on the pointing out of secret informer coming from the side of New Mustafabad. Those boys took turn and started running away on seeing them. It is further deposed that he chased and overpowered one of them with the help of Ct. Ravinder, but two other succeed in running. It is further deposed that the name of apprehended boy was JCL 'A' aged about 16-17 years and during investigation by JWO SI Amit Verma, he disclosed the names of absconding persons as Arif and others name he did not remember. It is further deposed that one country made pistol .012 bore, two live cartridges, two knives (chhure), two plas and two small iron rods were recovered from the bag of JCL which belonged to Arif @ Mota as disclosed.
FIR No. 696/15 5 State Vs. Arif 7 of 31 6.3.1. During cross examination, he has denied that JCL 'A' neither disclosed the name of accused Arif @ Mota at any point of time nor recovered weapons belonged to Arif. He was not aware as to how many cases are pending against accused Arif @ Mota, but it is voluntarily deposed that he is BC of the area and was known to him prior. He did not remember the color of clothes worn by Arif @ Mota when he ran away from Chand Bagh Pulia on seeing them. It is further deposed that it was little dark at the spot at that time. It is denied that he did not see Arif @ Mota running from Chand Bagh Pulia on 26.8.2015.
6.4. PW4 Ct. Ravinder has corroborated the testimony of PW3 Ct. Mahabir about apprehending of JCL on 26.08.2015 during patrolling and also about recovery of weapons from his bag. It is also corroborated that two assailants of JCL ran away. It is further corroborated that the names of other associates of JCL came into their notice as Zahid and Arif @ Mota during interrogation, but all the three boys were known to him prior to that day being a resident of New Mustafabad. Arif @ Mota accused present in court (correctly identified) and Jahid (not arrested), were resident of New Mustafabad. He along with Ct. Mahavir put his signatures on the documents prepared against JCL.
6.4.1. During cross examination, he has deposed during patrolling that they reached at aforesaid Pulia at about 8.00 or 8.30 p.m and FIR No. 696/15 5 State Vs. Arif 8 of 31 were not aware about the presence of three boys, but they saw them coming from Mustafabad side all of sudden. It is further deposed that JCL 'A' was very well known to him out of three and was overpowered JCL when escaped towards Gali No. 4, Chand Bagh. Accused Arif @ Mota was also known prior by his name but not by his face. He was not aware about the names of two other persons who ran away from Chand Bagh Pulia when JCL 'A' was overpowered by them, but he did not remember whether JCL 'A' disclosed the names of his associates as Arif @ Mota and Zahid. He was not aware whether accused Arif @ Mota was produced by his mother before ASI Murari Lal at P.S. Gokal Puri, but it is denied that JCL was not apprehended.
6.5. PW5 (Rtd.SI) Rajender Prasad received rukka on 26.08.2015 which is Ex.PW5/A recorded by SI Habib Ahmed sent through Ct. Nikesh for registration of FIR. He made his endorsement Ex.PW5/B and recorded DD No. 6A regarding registration of FIR. He got typed FIR through computer operator Ct. Satish. Copy of FIR is Ex.PW5/C and investigation was assigned to SI Habib Ahmed. Rukka and copy of FIR were sent to IO through Ct. Nikesh. He also issued certificate u/s 65 B of Evidence Act which is Ex.PW5/D. It is denied that FIR is anti dated and anti timed.
6.6. PW6 HC Jagdish Singh joined investigation of the case with ASI Murari Lal on 02.03.2016 and witnessed the arrest of accused FIR No. 696/15 5 State Vs. Arif 9 of 31 Arif @ Mota at about 11.00 a.m./ 12.00 noon from T-point Brijpuri, vide arrest papers Ex.PW6/A and Ex.PW6/B. Accused made his disclosure statement Ex.PW6/C and also led police party to the place of incident and got prepared pointing out memo Ex.PW6/D. 6.6.1. During cross examination, he initially admitted that accused was brought from his house, but again said, that accused was arrested from T point, Brijpuri. It is admitted that no recovery was affected in pursuance of disclosure statement of accused. It is further admitted that arrest papers and disclosure statement of accused do not bear the signature of injured Rashid, but it denied that Rashid did not join arrest proceedings of accused due to arrest papers do not bear his signatures. It is denied that he signed arrest documents of accused while sitting in PS. 6.7. PW7 Ct. Nikesh joined the investigation of the case with IO on receiving DD No. 6B assigned to SI Habib Ahmed and visited at the spot of incident near Pulia Gali No.12, New Mustafabad where public persons were present but informed him that injured had already been removed to hospital by CATs officials. It is admitted that no eye witness of the incident met there and he alongwith IO went to GTB hospital and SI Habib collected MLC of injured with the help of Duty Constable. Name of injured came into their notice as Rashid who was fit to make statement as declared by doctor. SI Habib recorded his statement Ex.PW1/A and prepared rukka in hospital and handed FIR No. 696/15 5 State Vs. Arif 10 of 31 him over at about 4 A.M to get registered FIR. After registration of FIR, he delivered the rukka and copy of FIR to SI Habib at the spot of incident for investigation and by that time injured Rashid had also reached there and IO prepared site plan in his presence and, thereafter he was relieved of investigation.
6.7.1. During cross examination, he has deposed that the search of accused persons was made at the spot in his presence by IO, but no witness was examined in his presence. It is admitted that he did not sign any document in this case. It is denied that Rashid was not conscious when they met him in hospital. It is denied that statement of Rashid was not recorded in his presence or that he did not take rukka to PS or that no site plan was prepared in his presence.
6.8. PW8 SI Habib Ahmed conducted investigation in pursuance of DD No.6B assigned to him and visited spot of incident but no material witness met him there but public persons informed that the injured had been removed to GTB Hospital by CATs Ambulance. He reached at GTB and collected MLC of injured who was fit to make statement. He interrogated injured Rashid and recorded his statement Ex.PW1/A which was read over to him before obtaining his signature. Injured Rashid named assailants Mota @ Arif, JCL 'A' and Zahid in his statement. He prepared rukka on the basis of statement of injured and got registered FIR through Ct. Nikesh from GTB Hospital. He reached to the spot of incident as disclosed by FIR No. 696/15 5 State Vs. Arif 11 of 31 injured in his statement and inspected. In the meantime, Rizwan and Abid, eye witnesses of the incident, reached there and disclosed that they were coming from GTB Hospital and disclosed that they had taken out injured Rashid from drain (nala). They also disclosed the names of three assailants namely Arif @ Mota, JCL 'A' and Zahid. He recorded statements of Rizwan and Abid. Meantime, injured Rashid also reached the spot after discharge from hospital and joined investigation. He inspected the place of incident at his instance of complainant and prepared unscaled site plan Ex.PW8/A of the spot of robbery as well as the spot of throwing the complainant in drain. He made search for assailants but in vain. It is further deposed that on the same day in evening, he along with beat Constables Mahavir and Ravinder was searching assailants in the area of Mustafabad and, at about 8 P.M., he noticed assailants coming from the side of New Mustafabad towards Pulia known No. 6 and accused Arif @ Mota was also with them. Accused Arif and his associates took turn and tried to run away, but one of their associates JCL 'A' was overpowered and he disclosed the names of other assailants including Arif @ Mota who was known to him earlier being BC of PS Gokul Puri. He deposited MLC of injured Rashid to get nature of injuries and doctor opined the nature of injury as simple. He also collected CT scan report and X-ray plate Mark PW8/1 and Mark PW8/2. Thereafter, investigation of this case was transferred to ASI Murari Lal.
FIR No. 696/15 5 State Vs. Arif 12 of 31 6.8.1. During cross examination, he has deposed that incident took place at about 12:30 A.M as disclosed by injured and he reached to the spot within 10 minutes on receiving DD entry. He reached GTB hospital at about 3.15 A.M. and stayed there for 45 minutes and again reached the spot at about 4.30 or 4.45 A.M. It is further deposed that no one was present at the spot when he reached there from GTB hospital. It is denied that he recorded statement of injured of his own or that Rizwan and Abid did not meet him at spot at any point of time or that they did not make any statement. It is denied that he did not see Arif @ Mota coming from the side of Mustafabad on 26.08.2015.
6.9. PW9 SI Madan Gopal has proved certificate u/s 65B of Indian Evidence Act Ex.PW9/A regarding PCR form.
6.10. PW10 Dr. Kartik, SR (Neurosurgery) has proved the opinion on MLC of injured Rashid Ex.PW1/B prepared by Dr. Wasim and Dr. Abhinav Veerwal gave opinion regarding nature of injuries on 30.09.2015. Dr. Abhinav Veerwal has left the service of the hospital and his present whereabouts are not known. He has identified the hand writing and signature of doctor in his official capacity being performed his duties under his supervision. The notes of Neurosurgery Department are Ex.PW10/A on which basis opinion was formed. It is admitted during cross examination that neither nature of injury was opined in his presence nor endorsement FIR No. 696/15 5 State Vs. Arif 13 of 31 Ex.PW10/A was made in his presence by Dr. Abhinav Veerwal.
6.11. PW11 Abid has deposed that he is rickshaw puller and on the intervening night on 25/26.08.2015, he parked his rickshaw in gali no 6, Mustafabad and, at about 1.00 am, he was going to his home and saw one Rizwan standing near pulia. They heard alarm raised by one person lying in drain (chota nala). He alongwith Rizwan took out that person from the drain but at that time he was not able to speak. They took him to GTB Hospital and got him admitted there for treatment. It is denied that injured told him anything as to what happened to him or who had thrown him into that nala / drain.
6.11.1. During cross examination by Ld. APP for the State, he has denied that his statement was recorded by the police in this case on 26.08.2015 or that injured Rashid was able to speak when he was taken out of the drain or that injured disclosed him that one Arif @ Mota, Zahid and JCL 'A' throw him into nala after giving beatings. He as confronted with his statement Ex. PW-11/A in which it is recorded. It is further denied that injured did not disclose the names of assailants when he was taken out of drain or that he has been won over by accused.
6.12. PW-12 ASI Ashok has proved the entries of Register No.19 and RC book as per which on 26.08.2015, SI Habib Ahmed deposited one sealed parcel containing exhibits vide entry FIR No. 696/15 5 State Vs. Arif 14 of 31 Ex.PW12/A. On 05.02.2016, he sent one sealed parcel containing one country made pistol and two live cartridges along with sample seal, FSL form, forwarding letter to FSL Rohini through HC Ombir against Road Certificate No.36/21/16 vide endorsement Ex.PW12/B. He also issued Road Certificate Ex.PW12/C. On the same day, HC Ombir returned AD. Ct. Rajesh delivered sealed parcel containing exhibits and FSL report vide endorsement Ex.PW12/D. 6.13. PW-13 ASI Murari Lal was assigned further investigation of this case and on 02.03.2016, at about 11 A.M., he alongwith Ct. Jagdish was present at T-Point Brij Puri, Main Wazirabad Road where complainant Rashid came to him and pointed out towards one person coming from the side of Shiv Vihar and disclosed that he was the robber who caused him injuries with knife at the time of committing robbery of Rs.15,000/-. He overpowered accused Arif @ Mota with the help of Ct. Jagdish and arrested him vide arrest memo and personal search memos Ex.PW6/A and Ex.PW6/B. He recorded disclosure statement Ex.PW6/C and accused disclosed names of his associates Zahid and JCL A. Accused Arif @ Mota led police to the place of incident and pointed out the same and got prepared pointing out memo Ex.PW6/D. He made efforts for recovery of weapon of offence and looted cash at the instance of accused Arif @ Mota but in vain.
FIR No. 696/15 5 State Vs. Arif 15 of 31 6.13.1. During cross examination by accused, PWs has admitted that the documents Ex.PW6/A and Ex.PW6/B do not bear signatures of complainant Rashid, but it is denied that complainant Rashid was not present at the time of arrest of accused Arif @ Mota. It is also denied that Rashid did not point out towards accused on 02.03.2016 or that accused was called to PS through his parents and was falsely booked in this case.It is admitted that no recovery was affected at the instance of accused Arif @ Mota, but it is denied that accused Arif @ Mota did not make any disclosure statement. It is also admitted that disclosure statement does not bear signature of complainant Rashid. It is denied that complainant Rashid was not present at the time of recording of disclosure statement.
6.14. PW14 Rizwan has deposed that on the intervening night on 25-26.08.2015, at about 1.00 A.M., he was going to his home via Pulia near Gali No.12 and saw that some persons had gathered there. He also reached there but no one told him as what had happened there. He neither met Abid nor took out anyone of drain.
6.14.1. During cross examination by Ld. APP for State, he has denied that his statement was recorded by police on 26.08.2015 or that on the intervening night on 25-26.08.2015, at about 1 A.M., he heard alarm near pulia of Gali No.12 and saw that Rashid was raising alarm from drain/nala or that he alongwith Abid took out Rashid from that drain. It is denied that injured Rashid disclosed him FIR No. 696/15 5 State Vs. Arif 16 of 31 and Abid that he was thrown in nala by Arif @ Mota, Zahid and JCL 'A' after giving beatings. It is further denied that he and Abid took injured Rashid to his house after taking him out of the drain and left him with his brother Ashad at his home. It is also denied that it was told to him by injured that accused Arif @ Mota and his two associates Zahid and JCL 'A' robbed him of Rs.17,500/- on the point of knife after causing injury He has denied his statement Mark PW14/A.
7. I have heard the arguments and perused the record. As per the allegations of the prosecution, on 26.08.2015 at about 12:30 A.M., at Pulia, Gali No.12, New Mustafabad, Delhi, accused Arif @ Mota along with his associates namely Jahid (wrongly mentioned as Javed in charge) and JCL 'A' committed robbery of Rs. 17,500/- from complainant Rashid on the point of knife and also after causing injuries on his neck and chest. Accused Jahid could not be apprehended. Accused Arif @ Mota has faced trial before this court and JCL A is facing trial before J.J.B.
8. To prove these charges, the testimony of PW1 Rashid is material. PW1 is not only complainant but also injured of the incident. PW1 Rashid has deposed that on the intervening night on 25/26.08.2015, at about 12:30 A.M, he was coming back from Azadpur Mandi under the influence of liquor and was going to his home on foot when accused Arif @ Mota alongwith JCL 'A' and Jahid FIR No. 696/15 5 State Vs. Arif 17 of 31 / Zahid met him near Pulia and robbed him of Rs. 17,500/- on the point of knife. It is further deposed that all the three assailants were having knives and showed him during robbery of his cash of Rs.17500/-. It is further deposed that Jahid/Zahid caused stab injuries on his left chest and also on his neck and thereafter threw him into a drain and ran away. He raised alarm and Rizwan and Abid took him out of that drain and removed to his home wherefrom he was taken to hospital. In fact, PW1 Rashid has not supported the prosecution fully due to Ld. Addl. P.P for the State has cross- examined him and during cross examination, he has admitted that accused Jahid / Zahid, was the associate of accused and demanded Rs. 500/- from him, but on refusal, he started quarrel with him. JCL 'A' overpowered him and Jahid / Zahid caused stab injuries on his neck. It is further admitted that accused Arif @ Mota caused stab injuries on his left chest and they robbed Rs.17,500/- out of his possession. PW1 has further admitted that all the assailants were known to him prior to the incident. His brother Ashad made a PCR call and removed him to GTB hospital wherefrom he discharged in morning. PW1 has admitted his statement Ex.PW1/A recorded by the police and his MLC Ex.PW1/B was also prepared in hospital. He has correctly identified accused Arif @ Mota who was known to him much prior to incident. As such, this testimony of the PW1 has proved that he initially not supported the prosecution, yet during cross-examination by Ld. APP for State, he has duly proved and supported the prosecution case that accused alongwith his FIR No. 696/15 5 State Vs. Arif 18 of 31 associates has committed the robbery of his cash after causing injuries.
9. The purpose of questioning by a party to his own witness does not change the admissibility of testimony of such witness and still it can be relied upon the court if found creditworthy as laid down in Pandappa Hanumappa Nananar Vs. State of Karnataka (1997) 3 Supreme Today 63. Section 154 (2) of Evidence Act has also laid down this proposition. The purpose of cross examination by a party to his own witness is to extract truth concealed by the witness and if this truth has brought out during cross-examination then it can be definitely considered. In view of this legal proposition and abovesaid law laid down by Hon Supreme Court of India, it stands proved that the testimony of PW1 Rashid is creditworthy to rely upon to prove the incident especially when accused has not cross examined this witness about this cross-examination by Ld.APP for State. As such, the testimony of PW1 has proved the incident.
10. It is argued on behalf of accused that PW1 has made a number of improvements in his testimony in comparison to his case before police where he alleged that accused Arif @ Mota inflicted injury on his chest, whereas before this court he has ruled out that accused Arif @ Mota inflicted knife injury to him. He has deposed that injuries were caused by Jahid / Zahid. It is further argued that PW1 has further improved that JCL 'A' took out money out of his FIR No. 696/15 5 State Vs. Arif 19 of 31 pocket, but he has not deposed that accused Arif @ Mota has committed anything against him. However, this argument is not sustainable. PW1 is stick to his testimony before this court that all the accused were present together at the spot at the time of incident and robbed his money. He has duly admitted that police recorded his statement which is Ex.PW1/A which was duly gone through by his brother Ashad and this statement has duly proved the mode and manner of the incident. In fact, testimony of PW1 has duly proved that his statement was recorded by the police and he was well aware about the identity of accused and was robbed by the accused alongwith his assailants.
11. PW1 Rashid was not only robbed but also thrown into drain and was taken out of drain by Rizwan and Abid. PW11 Abid has partly supported the testimony of injured that he was taken out of the drain by him alongwith Rizwan, but he has denied that Rashid disclosed anything to him being was not able to speak. PW14 Rizwan has not supported the prosecution but still Abid has proved his presence at the spot when he brought out the injured Rashid of the drain. Though the brother of Rashid namely Ashad has also not supported the prosecution about the fact that his injured brother told him anything about the incident, yet he has supported the prosecution that he made a PCR call and contents of PCR form have proved that Ashad disclosed the police that his brother was stabbed by accused Arif @ Mota. In fact, Abid has proved and corroborated FIR No. 696/15 5 State Vs. Arif 20 of 31 the testimony of Rashid that he was thrown into drain after the incident and was brought out by Abid and Rizwan.
12. Further, PW1 Rashid was removed to hospital by his brother Ashad, Rizwan and Abid after removing him to his house wherefrom he was removed to GTB Hospital through CATs ambulance and this fact has been proved by the brother of injured Ashad and Abid and also corroborated by MLC of injured in which CATs Ambulance is mentioned in brought by column. The testimony of PW1 has proved that all the accused were known to him much prior to the incident and were also together at the time of incident and committed robbery after causing injuries to him and his MLC Ex.PW1/B has also proved that he was caused injuries.
13. Further, PW2 Ashad who is the brother of injured has supported the prosecution during examination in chief that his brother Rashid disclosed him that accused Arif @ Mota, Jahid and JCL A snatched Rs.17,500/- out of his possession on the point of knife and after causing injuries on his neck and chest and threw him into a drain/ nala. The contents of PCR form Mark PW13/1 have also proved this fact that he informed the PCR about the incident and this fact has again duly corroborated by the contents of DD No.6B which is Ex.PW7/A. Though PW2 has taken 'U' turn during cross- examination and has deposed that his brother was brought by two unknown boys at his home and was not able to speak due to he FIR No. 696/15 5 State Vs. Arif 21 of 31 could not tell anything to him and this fact was told to him by those unknown persons. However, this testimony during cross examination is not reliable and suggests that he has deliberately changed his version before this court otherwise he made PCR call by his name as well as disclosed the involvement of accused Arif @ Mota. Similarly, Abid has also corroborated his testimony that Rashid was not able to speak, but their testimonies are against the observation of the doctor who prepared the MLC that injured was fit to make statement and was conscious. As such, PW1 is the material witness being injured and there is no reason to discard his testimony and PW Abid has corroborated by his partly supported testimony as well.
14. The testimony of PW1 Rashid is of an eye witness as well as victim and his testimony cannot be discarded on account of some contradictions in view of the law laid down by the Hon'ble Supreme Court of India in Abdul Sayeed V. State of Madhya Pradesh & others, (2010) 10 SCC 259 that weight is to be attached to the evidence of a witness that was himself injured in the course of occurrence and testimony of such 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 assailants in order to falsely implicate someone. As such convincing evidence is required to discredit an injured witness. In view of this testimony, the testimony of PW1 cannot be discarded and being injured of the incident as proved by his MLC, his testimony FIR No. 696/15 5 State Vs. Arif 22 of 31 is reliable to prove the incident.
15. Further, PW1 has proved his statement and the contents of this statement Ex.PW1/A have proved the incident. Even the FIR was also lodged by this complainant and has again proved the inci- dent. Similar situation has been dealt with by the Hon'ble Supreme Court in Gurcharan Singh & Ors v. State of Punjab, 1994 Supp (1) SCC 515 that FIR lodged by an eyewitness in which all the details of occurrence mentioned in most natural way. He also figured as an eye witness to the previous incident which occurred in morning. His presence cannot be doubted at the scene of occurrence. It may be that some of the details were not mentioned in the FIR or in his statement under section 161 Cr.P.C. but they do not affect his veracity. As such, the testimony of an eye witness is to be consid- ered in view of the above said law laid down by the Hon'ble Apex court and is found reliable to prove incident of robbery irrespective of some contradictions or improvements.
16. Even from the testimonies of PW2 and PW11, it may be inferred that they have deliberately changed their version despite supporting the prosecution initially, especially PW2 Ashad who has proved that he made a PCR call after the incident and the contents of the PCR form has proved that he must have been told about the incident otherwise there was no reason to him to disclose the incident that his brother had been stabbed by his known Arif @ Mota. In fact, it may be assumed from the credential of accused, who is a FIR No. 696/15 5 State Vs. Arif 23 of 31 declared BC of the area as deposed by the police officials and involved in approximately 23 cases as per his previous involvement, that under how much pressure PWs must have deposed or changed their testimonies. PW2 has changed his version during cross examination after supporting prosecution during examination-in-chief and his testimony may be considered in view of law laid down by the Hon'ble Supreme Court of India in Akil Alia Javed v. State (NCT of Delhi) (2013) 7 SCC 125 that it is relevant to be considered that wit- ness completely changing stand in cross examination and exculpat- ing accused, cross examination held after delay of 2 months due to adjournment sought by defense counsel and an inference that wit- ness has been won over/ improperly induced to change his stand and give false testimony may be drawn. As such, in view of this law, the testimony of the PW2 is to be considered.
17. Though the difference of time between recording of the examination in chief and cross-examination of PW2 is not too long, yet a slight duration is also sufficient to influence the testimony of witness especially when both parties are of same locality and accused is B.C. and well aware about the legal procedure. Examination of material witnesses is supposed to be done on same day to avoid such eventuality, but a balance has to be struck between the examination of witnesses on the same day and rights of accused to defend charges fairly as laid down in various judgments of Hon'ble Apex Court especially Ajmal Kasab case. In this case, Ld. FIR No. 696/15 5 State Vs. Arif 24 of 31 Defence Counsel filed his vakalatnama at the time of examination of PW1 and PW2 due to some time was granted to him which resulted into change of statement during cross examination of PW2 Ashad. In fact, testimony of PW2 has corroborated the testimony of PW1 and his testimony can be used to corroborate to prove the incident that he was informed by Rashid who has deposed this fact before this court and this information is very well admissible u/s 6 of Evidence Act being part of some series.
18. It is not disputed proposition of law that a supporting part of testimony of a witness may be used irrespective of his hostile nature as held in various judgments. In fact, the principle 'False in uno falsus in omnibus' (false in one thing, false in everything) is not a mandatory rule of evidence in India and it is merely a rule of caution as held by the Hon'ble Supreme Court of India in Ram Udgar Singh v. State of Bihar (2004) 10 SCC 443 thereby relying upon State of Punjab v. Jagir Singh (1974) 3 SCC 277 and Lehna v. State of Haryana (2002) 3SCC 76 where it is held that even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove the guilt of the accused, notwithstanding the acquittal of a number of other accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove the guilty FIR No. 696/15 5 State Vs. Arif 25 of 31 of the other accused persons. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end.
19. In view of this law, the testimony of witness Abid may be used to corroborate the testimony of PW1 that he alongwith Rizwan took him out of the drain and removed to his home and further corroborated by the testimony of PW2 Ashad that he along with Rizwan brought his brother to his home in his presence as deposed in his examination in chief. Even otherwise, there is no rule of law that the testimony of one eye witness effects the testimony of another in same trial as laid down in Surendra Singh Rautela Alias Surendra Singh Bangali v. State of Bihar (Now state of Jharkhand) (2002) 1 SCC 266 that the evidence of eye witness cannot be discarded merely because another eye witness had not supported the prosecution case and was declared hostile and conviction was upheld. In view of this law, the hostile testimony of witness Rizwan and partly testimony of Abid is not sufficient to disbelieve the testimony of Rashid and is sufficient to prove this case.
20. Further, PW8 SI Habib who conducted the investigation and recorded the statement of the complainant which is Ex.PW1/A has duly corroborated that he recorded the similar statement of the injured and statement of his brother as well as Abid and Rizwan who claimed themselves to be an eye witness of the incident. PW8 SI FIR No. 696/15 5 State Vs. Arif 26 of 31 Habib has duly corroborated the testimony of PW1 about recording of statement as well as arrest of accused to this case. He has also proved the presence of Rizwan and Abid at spot who took out the injured from drain. PW8 who is supported by other police witnesses conducted investigation in his official capacity and there is a presumption of section 114 (e) of Indian Evidence Act regarding this investigation. As such, the complexity of the accused to this offence stands proved.
21. In fact, accused was arrested at the instance of complainant as per the case of the prosecution and initially complainant Rashid also denied this fact, yet he has admitted during cross examination by Ld. Addl. P.P. for the State that accused was arrested in his presence. Accused has not cross-examined this witness on this aspect of arrest and his arrest stands proved. The purpose of re- examination of witness after declaring him hostile is to extract the correct information which is being concealed by the witness and there is not bar to consider this testimony. This witness was confronted with this fact by Ld. Addl. P.P for the State on his initial denial and on his confronted he admitted. As such, it shall be considered that accused was pointed out by complainant and thereafter he was arrested.
22. Further, initially, JCL 'A' was apprehended along with certain weapons including one county made pistol two live cartridges, two FIR No. 696/15 5 State Vs. Arif 27 of 31 knives and some iron rods etc. yet this recover cannot be considered here as the same is the part of another litigation being faced by JCL. However, this fact has been duly proved by PW3 Ct. Mahavir, Ct. Ravinder and HC Jagdish Singh that he was apprehended and disclosed the names of his associates including Arif @ Mota. Thereafter, accused was arrested vide arrest papers Ex.PW6/A and Ex.PW6/B. He made his disclosure statement Ex.PW6/C, but this disclosure statement is of no use in the absence of any recovery as admitted by PW6 during cross examination. However, pointing out memo Ex.PW6/D is very well corroborated by site plan prepared by IO at the instance of complainant which is Ex.PW8/A by the virtue of Section 8 of Evidence Act. as held by Hon'ble High Court of Delhi in Chandrakant Jha v. State, Criminal Appeal No-216/2015 dated 27/1/2016 and Hon'ble Supreme Court in A.N. Venkantesh v. State of Karnataka (2005) 7 SCC 714. PW13 ASI Murari Lal has proved the mode of arrest of accused. On the other hand, accused has denied all the incriminating evidence put u/s 313 Cr.P.C vaguely. As such, the mode and manner of the arrest of accused stands proved.
23. In fact, there is no bar to base a conviction on the sole testimony of single witness as held in Vitthal Pundalik Zendge v. State of Maharashtra 2008(17) SCC 239 provided the testimony of single witness must inspires confidence of the court and no corroboration is required unless corroboration is insisted upon by FIR No. 696/15 5 State Vs. Arif 28 of 31 statute except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence. Similar proposition is held in Vadivelu Thevar v. State of Madras ( AIR 1957 SC 614) that if the testimony of witness is wholly reliable, the court can convict the accused on the basis of the sole testimony of the witness. In this case also, the testimony of the PW1 inspires confidence and is reliable and has proved the entire incident in credible manner and it is safe to rely upon his testimony to convict the accused irrespective of some minor contradictions.
24. Though the testimonies of the PWs have some contradictions like PW13 who has deposed the robbed amount Rs.15,000/-, yet it has no effect on the merit as PW13 conducted part investigation and the statement of PW1 which is Ex.PW1/A and FIR have duly proved that the robbed amount was of Rs.17,500/- and not Rs.15,000/-. Even otherwise PW1 was the best witness to prove this fact which has been duly proved by him and it is not fatal to this case. Rest of the contradictions are immaterial and are not fatal to this case in view of the law laid down in Sunil Kumar Sambhu dayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657 that the contradictions / omissions must be of such nature which materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety. As such, the testimonies of PWs FIR No. 696/15 5 State Vs. Arif 29 of 31 are reliable to prove the offence against the accused.
25. It is argued on behalf accused that injuries were caused by Jahid / Zahid due to accused cannot be made responsible for causing injuries to injured, however, this plea has no substance as Section 394 IPC has prescribed that the injuries irrespective of nature caused by any of the robbers during the incident of robbery made everyone responsible for such injury and made all participant vicariously liable for the same. If it is assumed that accused Arif @ Mota has not caused any injury to Rashid, though caused, then also he is very well responsible being associate of Jahid / Zahid (not arrested) who caused injuries to injured Rashid by the virtue of Section 394 IPC. As such, it stands proved that complainant was robbed by accused persons in furtherance of their common intention after causing simple injuries to him as proved by PW1 and PW2 and corroborated by other Pws.
26. In view of the facts and circumstances of the case, I am of the opinion that testimony of PW1 duly corroborated by other witnesses has duly proved that accused in furtherance of his common intention with other associates committed the robbery of Rs.17,500/- after causing injuries and has committed the offence u/s 394/34 IPC, hence convicted.
FIR No. 696/15 5 State Vs. Arif 30 of 31
27. So far the offence u/s 397 IPC is concerned, no recovery of weapon has been made to ascertain that it was dangerous weapon used during incident in terms of Section 397 IPC. However, use of weapon has been proved by MLC of injured Ex.PW1/B, but PCR form has proved that it was some pointed weapon. Injured sustained nature of injuries as simple. As such, in the absence of recovery of weapon or grievous nature of injury, charges u/s 397 IPC could not be proved against the accused, hence acquitted.
28. In view of the facts, accused is convicted for the offence 394/34 IPC. Be heard on the point of sentence separately.
Announced in open court (Devender Kumar)
today on 25.03.2017 Addl. Sessions Judge-03 (NE)
Karkardooma Court/Delhi
FIR No. 696/15 5 State Vs. Arif 31 of 31