Delhi District Court
Sadakat @ Shahjad vs State (Nct) Of Delhi on 5 August, 2023
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL
SESSIONS JUDGE - 05: SOUTH EAST,
SAKET COURT, NEW DELHI
CNR No. DLSE01-006985-2019
CRL. APPEAL No. 455/2019
U/S. 374 (3)(a) Cr. P. C.
PS: HAZARAT NIZAMUDDIN
IN THE MATTER OF:
Sadakat @ Shahjad
S/o. Sh. Shaukat
R/o. C-135, J.J. Colony,
Shahbada, P.S. Kanjawala,
Delhi.
APPELLANT.........
VERSUS
1. State (NCT) of Delhi.
2. Sh. Varun S/o. Sh. Sanjay Singh
R/o. 7/26B, DDA Flats,
Sarai Kale Khan, New Delhi.
RESPONDENT......
Other Details :
Date of Institution : 05.09.2019
Date of Reserving Order : 08.06.2023
Date of Order : 05.08.2023
APPEAL U/S. 374 (3)(a) CR. P. C. AGAINST JUDGMENT
DATED 26.07.2019 AND ORDER OF SENTENCE DATED
07.08.2019 OF LD. MM-03, SED, SAKET COURT,
IN CASE FIR NO. 2611/2018
JUDGMENT
1. The appellant is aggrieved by the impugned judgment dated 26/07/2019 of Ld. MM-03, South-East District, Saket CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.1/12 Court, vide which he was convicted for offence U/s. 394/34 IPC and by order on sentence dated 07/08/2019 vide which he was sentenced to Simple Imprisonment of four months, in case FIR No. 2611/2018, PS Hazarat Nizamuddin, U/s. 394/34 IPC.
2. The prosecution case in brief is that on 02/03/2018, at about 09:30 PM, at Barapulla Underpass, near Nizamuddin Railway Station, New Delhi, within the jurisdiction of PS Hazrat Nizamuddin, appellant/convict Sadakat @ Shahjad alongwith his other associate (not arrested), in furtherance of their common intention, voluntarily caused simple hurt to complainant Varun with some sharp edged weapon, while robbing him of his Oppo F-5 Mobile Phone. Accused Sadakat @ Shahjad was arrested on 06/03/2018 and was charged for the offence U/s. 394/34 IPC.
3. As per Trial Court record, to prove its case, the prosecution examined following four witnesses during trial of the case:
3.(a) PW1 HC Akhilesh and PW2 Dharambir, deposed about joining of investigation alongwith IO ASI Malwa Ram, arrest of accused Sadakat @ Shahjad on 06/03/2018, at about 10:00PM, from Barapulla Underpass, near Sarai Kale Khan, at the instance of secret informer, vide arrest memo Ex. PW1/A and conducting of his personal search Ex. PW1/B, recording of his disclosure statement Ex. PW1/C and registration of FIR on 04/03/2018.
3.(b) PW3/complainant Varun Singh deposed about the incident that on 02/03/2018, at about 09:00 - 09:30PM, while going towards his house on foot, when he reached the underpass near CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.2/12 Barapullah subway, accused Sadakat (correctly identified in Court) alongwith his 3-4 other associates came there and attempted to snatch his mobile phone. When PW3 tried to save himself and refused to give his mobile, accused Sadakat hit him on his neck with a blade. He deposed that accused Sadakat and his associates robbed him of his mobile phone after causing blade injury to him, on his neck and fled from the spot. He deposed that he went to his home and his family took him to Trauma Center for medical examination, where his neck was stitched. He deposed that on 04/03/2018, he alongwith his father, brother and uncle went to PS Hazarat Nizamuddin, where he gave a written complaint Ex. PW3/A to police, showed the place of incident to police and police prepared site plan Ex. PW3/B at his instance.
He stated that his mobile was of black colour make Oppo in which he had inserted two SIM cards, however, he disclosed only about one SIM card having no. 8376965779, and handed over the photocopy Mark 'A' of installment of his mobile phone to police. He deposed that after some days of registration of FIR, on arrest of accused Sadakat, he visited the police station, where he identified accused Sadakat as one of the offenders and told to police about his role in the incident.
3.(c) PW4/IO ASI Malwa Ram proved the investigation conducted by him and deposed inter alia about receipt of DD No.40A Ex. PW4/A regarding injury inflicted on neck with the knife, visiting the place of incident at Barapullah Flyover alongwith HC Akhilesh in search of injured as well as the offender, receipt of DD No.2A dated 03/03/2018, at about 12:40AM, in respect of MLC of injured Varun and his admission CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.3/12 in AIIMS Trauma Center. He further deposed about visiting AIIMS Trauma Center and meeting injured Varun who refused to give his statement due to severe pain in his neck and collecting the MLC of injured. He deposed that on 04/03/2018 injured Varun alongwith father came to PS Hazarat Nizamuddin and gave written complaint Ex. PW3/A. Thereafter, he prepared rukka, got the FIR registered, visited the place of incident alongwith the complainant, prepared site plan Ex. PW3/B at his instance and searched for the offenders, but to no avail. He further deposed about receipt of secret information, preparation of raiding party consisting of HC Akhilesh and HC Dharambir, arrest of accused Sadakat on 06/03/2018 from near Nizamuddin Railway Station at the instance of secret informer, recording of his disclosure statement and conducting his personal search. He further deposed that on 08/03/2018 he requested the Court to get the TIP of accused conducted through injured, however, accused Sadakat refused to participate in TIP proceedings Ex. P/A/2. Despite availing of one day PC remand of the accused, neither the robbed mobile phone nor associates of the accused were found. He also put the robbed phone on surveillance, but in vain.
4. The Trial Court Record reflects that during course of trial, accused Sadakat admitted the following prosecution documents -
(i) Ex. P/A/1 i.e. MLC No. 500081364/18 of injured Varun, (ii) Ex. P/A/2 i.e. TIP proceedings and (iii) Ex. P/A/3 i.e. Copy of FIR, vide his separate statement recorded U/s. 294 CrPC.
5. Statement of accused Sadakat was recorded U/s. 313 CrPC. The accused did not avail of the opportunity to lead CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.4/12 evidence in defence. Upon hearing the final arguments from both sides, Ld. Trial Court vide its judgment dated 26/07/2019 held the appellant/accused guilty of offence U/s. 394/34 IPC and sentenced him vide order on sentence dated 07/08/2019.
6. Ld. Counsel for appellant vehemently argued that Ld. Trial Court passed the impugned judgment on surmises and conjectures. It was argued that Ld. Trial Court failed to appreciate that, neither the stolen items nor the alleged sharp object that was used to hit the victim were recovered from the appellant/convict. It was argued that despite availability of public persons at the spot, no public witness was joined in investigation. It was further stated that there is delay of two days in registration of FIR by complainant. It was stated that prosecution miserably failed to prove its case beyond reasonable doubt. With these arguments, the appellant prays that impugned judgment and order on sentence may be set aside.
7. Ld. Addl. PP for State/respondent has opposed the appeal stating that prosecution has proved its case against the appellant and Ld. Trial Court has rightly convicted and sentenced him.
8. I have heard rival contentions from both sides and perused the record.
9. Proof of Incident:- PW3 Varun is the prime witness of the prosecution and the sole eye witness to the incident. Perusal of his testimony reveals that he has gone whole hog with the CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.5/12 prosecution version. In his testimony, he has categorically deposed that on 02/03/2018, at around 09:00PM - 09:30PM, at underpass near Barapulla Subway, appellant/accused Sadakat alongwith his associates started snatching his mobile phone from pocket of his trouser. When PW3 resisted, Sadakat struck him on his neck with a blade and robbed his mobile phone. He also showed the injury mark on his neck. It is evident that the witness narrated the entire incident in a consistent manner. He correctly identified the appellant/accused in the witness box. PW3 faced grueling cross-examination but defence could not elicit anything to discredit him. Testimony of PW3 is absolutely trustworthy, unblemished and of sterling quality. He withstood rigors of lengthy cross-examination without being shaken and, therefore, his testimony can be safely relied upon.
10. The law regarding testimony of an injured victim of the offence is well settled. For appreciating the evidence of the victim, the Court has to bear in mind that the presence of such witness at the time and place of the occurrence cannot be doubted. While appreciating his evidence, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. Being the victim/eye witness of the crime, he would be most keen to ensure that the real culprit does not go scot free and there is no reason that he would frame any innocent person in such a serious offence which he had alleged completely knowing its implications without any previous enmity with him. Hon'ble Delhi High Court in Chuni Lal vs. State of Delhi, Crl. A. No. 262/2003, decided on 08.08.2013, has held as under:-
CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.6/12"11. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustain injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:
"28. 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, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW
4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.7/12 third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
12. To the similar effect is the judgment reported in Mano Dutt and Anr. Vs. State of UP, (2012) 2 SCC (Cri) 226."
11. At the cost of repetition, relevant it would be to mention here that the accused was duly identified by PW3 during course of trial in the Court. Therefore, the moot question which arises is if the said identification was due to 'false implication'. As to the question of false implication, PW3 has categorically denied the suggestion of defence regarding false implication of accused. Further, no motive whatsoever has been imputed upon the witness to substantiate the theory of false implication. Therefore, the 'false implication' of accused by the victim is ruled out in the present case for want of any motive as admittedly the parties were not known to each other prior to the alleged incident.
Regarding the availability of public persons at the spot, PW3 replied in cross-examination that at the time of incident no public person was present at the place of occurrence as it was the day of Holi festival and public persons were inside their homes. He denied the suggestion that at the time of incident vehicles were passing through the spot.
12. Identification of accused during investigation:-
12.(a) As per chargesheet, appellant/convict Sadakat and his associates had fled from the spot after committing robbery.
Appellant/convict Sadakat was arrested on 06/03/2018 in pursuance of a secret information and was produced before Duty CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.8/12 MM on 07/03/2018 in muffled face. On 08/03/2018, when appellant/convict Sadakat was again produced in Court in muffled face, he refused to participate in judicial TIP proceedings. Thereafter, on 13/03/2018, the IO obtained one day PC remand of appellant/convict Sadakat. On that day, complainant Varun happened to visit the police station and identified appellant/convict Sadakat as the offender who injured his neck with a sharp object and robbed his mobile phone alongwith his associates.
12.(b) PW3 Varun deposed that some days after registration of FIR he happened to visit police station Hazrat Nizamuddin where, on seeing accused Sadakat, he identified him as the robber and told police about his role in commission of the offence. PW3 identified appellant/convict Sadakat in the Court and, therefore, there is no question of 'mistaken identity'.
12.(c) In cross-examination, PW3 stated that there was no street light at the place of occurrence but it was there at some distance from the spot. PW3 denied the suggestion that he had not seen appellant/convict Sadakat at the spot at the time of incident due to darkness. He voluntarily reiterated that he saw appellant/convict Sadakat at the spot at the time of incident. Thus, there was no mistake in establishing the identity of appellant/convict Sadakat as the offender.
13. Delay in Registration of FIR:-
13.(a) Ld. Counsel for appellant argued that the alleged incident CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.9/12 of robbery occurred on 02/03/2018 at around 9:30PM, whereas, FIR was registered on 04/03/2018 at around 04:15PM. It was argued that because of inadvertent delay in reporting the incident to police and registration of FIR, false implication of appellant/convict was a distinct possibility. It was also argued that as per DD No.2A dated 03/03/2018, recorded at 12:40PM, PS Hazrat Nizamuddin, complainant Varun had sustained injury in a domestic quarrel, that is in contrast to the injury sustained in robbery.
13.(b) In this regard, Ld. Addl. PP submitted that, in the first instance, DD No.40A dated 02/03/2018 was recorded at 11:40PM in PS Hazrat Nizamuddin, as per which the injured had sustained knife injury on the neck. Ld. Addl. PP argued that the purpose of recording of DD entry is very limited, which is to record the brief information of occurrence of an incident and to put the police machinery into motion, to reach the spot and discover facts about the incident. Ld. Addl. PP argued that the discovery of facts pertaining to the incident happens only when police reaches the spot in pursuance of information received at police control room or police station.
13.(c) Appellant/convict Sadakat did not cross examine PW3/complainant Varun regarding delay in information given to police about the incident. PW3 was cross examined with suggestion that on the day of incident, when he reached home after celebrating the Holi party from somewhere, his family member inflicted the injury on his neck. PW3 denied the suggestion that he sustained injury in a quarrel with his family CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.10/12 member, in respect of which DD No.2A, dated 03/03/2018 (supra) was recorded.
13.(d) In his deposition, PW4 IO ASI Malwa Ram stated that in pursuance of DD No.2A Ex. PW4/B, when he met injured Varun in AIIMS Trauma Center, where he was admitted, he asked Varun to give statement. However, at that time, Varun refused to give statement since he was feeling severe pain in his neck because of the incident. Thereafter, on 04/03/2018 injured Varun came to police station and gave written complaint Ex. PW3/A on the basis of which FIR was registered. Thus, the delay was well-explained in the testimony of PW4, whereas, PW3 Varun was not cross examined by appellant/convict in this regard.
14. Medical Evidence of Injury: - Appellant/convict Sadakat had admitted the MLC Ex. P/A/1 of injured/victim Varun U/s. 294 CrPC, that was prepared at AIIMS Hospital on 02/03/2018, at 10:21PM. As per MLC, injured Varun had sustained laceration on neck, with a blunt object. The injury sustained by injured Varun was opined as simple injury. The medical evidence corroborates the oral testimony of PW3 Varun.
15. Ld. Counsel for appellant has failed to point out any material contradiction in the testimony of eyewitness so as to render the same unreliable. No material contradiction exists in the testimony of eyewitness to render his version unbelievable. In the present case, the testimony of eyewitness is cogent and convincing against the accused regarding the alleged incident.
CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.11/1216. In view of cogent and reliable evidence led by prosecution, I am of the considered view that prosecution has been able to prove its case beyond all reasonable doubts against the appellant for offence U/s. 394/34 IPC and, therefore, the present appeal so far as it impugns the judgment of conviction for said offence stands dismissed.
17. The present appeal, to the extent, it pertains to impugn judgment dated 26/07/2019 is concerned, it is dismissed. The issue of sentence shall be considered on completion of due procedure.
Digitally
signed by
VISHAL
VISHAL SINGH
Announced in the open court SINGH Date:
2023.08.05
dated: 05.08.2023 15:17:29
+0530
(VISHAL SINGH)
ADDL. SESSIONS JUDGE-05,
SOUTH-EAST, SAKET COURTS,
NEW DELHI
CA No. 455/2019 Sadakat @ Shahjad Vs. State Page No.12/12