Delhi District Court
As Masarullah vs State Of Tamilnadu, Convict Was ... on 31 August, 2010
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 02/01
Unique ID no.02404R0012392009
State
Versus
1) Ajeet Singh
S/o Narayan Singh
R/o G-1870, Jahangir Puri, Delhi
2. Tayyab
S/o Rasool Beg
R/oG-931, Jahangir Puri, Delhi
Date of Decision: 21/08/10
Date of order on sentence: 31/08/10
FIR No. 136/93
PS - Alipur
U/s. 392/397/34 of IPC
ORDER ON SENTENCE
Present: Ld. Addl. PP for State.
Both the convicts from JC with counsel Sh. B.S. Sharma.
I have heard Ld APP for State and Ld defence counsel for accused on
the point of sentence.
Ld defence counsel submits that Convict Ajeet had already undergone
custody for about four months and 12 days. It is further submitted that convict
SC No.02/01 1/17
Ajeet was about 28 years, at the time of incident.
Ld defence counsel further submits that convict Tayyab was less than
18 years of age at the time of incident. Accused Tayyab had already undergone
custody for about five months and 10 days.
Ld defence counsel further submits that both convicts have faced the
trial of this for about 17 years and have appeared regularly before the court. Ld
counsel further submits that no other case has been registered against these
convicts. There is no previous conviction nor they are habitual offenders. Ld
counsel further submits that both the convicts be given benefit of Probation under
Probation of offender's Act.
Ld defence counsel further submits that as per AIR 1983, SC 654 titled
as Masarullah Vs State of Tamilnadu, convict was released on probation u/s
452 and 397 of IPC, Convict Ajeet be given benefit of Probabation as he has been
convicted for the offence u/s 392/34 of IPC.
Ld defence counsel has produce the date of birth certificate issued by
Principal of Primary School, Zararbah, Agra, according to which date, of birth of
convict Tayyab is 04/08/76 and on the date of incident, he was less than 18 years.
Ld defence counsel further submits that benefit of probation can be
given even in offences, where minimum sentence is prescribed and it support of
same he has relied upon Narayan Dass Vs State of MP 1988 (2) MP WN 66.
As convict was less than 18 years on the day of incident, so I rely upon
Crl Appeal no.40/2010 titled as Sunder @ Sanju Vs State of Delhi, wherein it
has been held that " During the pendency of the appeal, the appellant moved any
application being Crl.M.B.No.42/2010 under section 389 of CrPC in which one of
the pleas raised by the learned counsel for the appellant was that the appellant
was a juvenile on the date of commission of the offence and prayed for
determination of his age in term of the The juvenile Justice (Care and Protection
of children) Act, 2000 (the 'said Act' for short) as amended up to date and Rules
framed thereunder and grant of benefit under said Act and Rules framed
thereunder. In support of his prayer, the appellant filed photocopy of his School
Leaving Certificate wherein his date birth is shown as 19.06.82 suggesting that on
SC No.02/01 2/17
16.04.2000, the date of commission of the offence, he was a juvenile being under
18 years of age.
In order to appreciate the submissions of learned counsel for the
appellant, it would be useful to reproduce Section 7-A of the said Act, which as
follows:-
"7-A Procedure to be followed when claim of juvenility is raised
before any court-1) Whenever a claim of juvenility is raised before any Court or a
Court is of the opinion that an accused person was a juvenile on the date of
commission of the offence, the Court shall make an inquiry, take such evidence as
may be necessary (but not an affidavit) so as to determine the age of such person,
and shall record a finding whether the person is a juvenile or a child or not,
stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and
it shall be recognized at any stage, even after final disposal of the case, and such
claim shall be determined in terms of the provisions contained in this Act and the
rules made thereunder, even if the juvenile has ceased to be so on or before the
date of commencement of this Act.
2) If the court finds a person to be a juvenile on the date of commission
of the offence under sub-section(1), it shall forward the juvenile to the Board for
passing appropriate order, and the sentence, if any, passed by a Court shall be
deemed to have no effect."
From a perusal of Section 7-A of the said Act, it transpires that as per
clause (1), whenever a claim of juvenility is raised before any Court, the court
shall make an inquiry and take such evidence as may be necessary so as to
determine the age of such person and shall record a finding whether the person is
juvenile or a child or not, stating his precise age as nearly as possible.
Section 20 of the said Act provides for the procedure to be followed in
respect of pending cases pertaining to the juveniles in any court in any area on the
date on which the Act comes into force in that area. It provides that such pending
cases against the juvenile shall continue in the said courts as if this Act has not
been passed and if the court finds that the juvenile has committed an offence, it
shall record such finding and instead of passing any sentence in respect of
juvenile, forward the case to the Board which shall pass appropriate orders in
respect of that juvenile in accordance with the provisions of the Act.
We have already concluded above that the appellant was a juvenile on
the date of commission of offence and his age was 17 years 09 months and 27
days i.e. less than 18 years. Clause 2 of Section 7-A of the said Act provides that
if the court finds a person to be juvenile in terms of definition under section 2(k) of
the Act on the date of commission of offence, it shall forward the juvenile to the
Juvenile Justice Board for passing appropriate orders, and the sentence if any,
awarded by a Court shall be deemed to have no effect. The import of this
SC No.02/01 3/17
provision is that sentence awarded by the learned trial judge in terms of the
impugned order of sentence will have no effect and the matter ought to be referred
to the Juvenile Justice Board for passing appropriate orders. We may, however,
note that as per Section 15 of the said Act, the maximum period for which a
juvenile can be sent to a Special Home is three years. As per the nominal roll, the
appellant has already undergone detention for more than 3 years."
In addition, I also rely upon Criminal Appeal No. 915/2009 titled as
Sanjeev @ Vishal V. State, wherein again convict was released being juvenile.
In view of the above as convict Tayyab has already suffered a long
trial of 17 years and has already undergone five months and 10 days custody and
further now he is aged about 35 years having four daughters and two sons to
support and all are still unmarried, so it would not be appropriate to refer the
matter to the Juvenile Justice Court for passing appropriate orders and relying
upon the above mentioned criminal appeal, convict Tayyab is released.
I have gone through the report of probation officer.
Considering the age, antecedents, above facts and circumstances and
submissions of Ld defence counsel, convict Ajeet is given benefit of probation for
a period of three years on furnishing a personal bond of Rs.15,000/- with one
surety in the like amount.
During the probation period, convict Ajeet shall maintain peace and be
of good behaviour. In case of default, convict Ajeet will produce himself before
the court concern for acceptance of sentence. Cost of Proceedings also imposed
to the tune of Rs.75,000/-. In default, convict Ajeet shall undergo two and half
year SI. Rs. 25,000/- be given to the complainant as compensation, out of the
cost, if realised.
Announced in Open Court on
dated 31st of August 2010
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No.02/01 4/17
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 02/01
Unique ID no.02404R0012392009
State
Versus
2) Ajeet Singh
S/o Narayan Singh
R/o G-1870, Jahangir Puri, Delhi
3. Tayyab
S/o Rasool Beg
R/oG-931, Jahangir Puri, Delhi
4. Raj Kumar @ Raju (Since P.O.)
S/o Virender Prasad
R/o District Gaya, Bihar.
Date of institution of the case: 09/11/93
Arguments heard on: 19/08/10
Date of reservation of order: 19/08/10
Date of Decision: 21/08/10
FIR No. 136/93
PS - Alipur
U/s. 394/397/34 of IPC
JUDGMENT
This case was registered u/s 394/34 on the statement of one Ram Bhool. On 07/09/93, during investigation rough site plan was prepared by the IO. Currency notes which were robbed from Ram Bhool were recovered amounting to SC No.02/01 5/17 Rs.39200/-(233 notes of Rs.100 and 314 notes of Rs.50/-). One katta and two live cartridges were recovered from accused Raju. One ustra was recovered from accused Tayyab. One motorcycle was recovered from the spot, where accused were apprehended. Sketch of katta and cartridges were prepared. Sketch of Ustra was also prepared. Accused Ajeet made a disclosure statement. FSL report was obtained regarding firearm and cartridges. Sanction under Arms Act was obtained. Personal search of all the three accused were taken by preparing memo dated 07/09/93.
Medical examination of complainant and accused Ajeet and R aju were also got conducted and on completion of investigation, chargesheet was filed against accused Ajeet, Tayyab, Raju and Satpal.
Later on, accused Raju was declared P.O on 04/05/99. Charge u/s 394/34 of IPC was framed against accused Ajeet, Tayyab and Satpal, and charge u/s 27 of Arms Act was framed against accused Tayyab, to which they all pleaded not guilty and claimed trial.
Before Ld. Trial Court PW1 to PW3 were examined. Later on, vide order dated 24/05/08, Ld MM gave opinion that provision of section 397 of IPC are also attracted, so case was committed to the Court of Sessions, which was received on 04/06/08. Vide order dated 06/05/09, accused Satpal was discharged. Charge u/s 394/34 of IPC was framed against accused Ajeet singh and charge u/s 397/34 of IPC and 27 of Arms Act were framed against accused Tayyab to which they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to 9 in all. Statement of accused recorded.
Accused Ajeet Singh has stated in his statement that on the day of incident, PW5 Ram Bhool was going alongwith 4/5 persons in the middle of GT Karnal Road. He came from behind on a motorcycle and asked Ram Bhool as to why he was walking in the middle of the road. On this, Ram Bhool and his SC No.02/01 6/17 associates started beating me. They also called some drivers from Nabharat Godown with some weapon in their hands., On account of the beating given by them, he received injuries on many parts of his body. Accused Tayyab trid to save him. He was also beaten by Ram Bhool and his associates. He too sustained injuries. Ram Bhool called police and got him involved in this case falsely by planting money from his pocket. He is innocent.
Accused Tayyab has stated in his statement that on the day of incident, he was passing at GT Karnal Road near Bakoli Mod. He saw accused Ajeet being beaten by Ram Bhool and his associates. He tried to save him. They also, gave beatings to him. Thereafter, Ram Bhool called police and got them involved in a false case by planting money from his pocket. He is innocent.
In defence evidence, accused Ajeet has examined DW1 Sh. Phool Singh and accused Tayyab has examined DW2 Sh. Vinod Kumar.
I have heard Ld APP for State and Ld counsel for accused persons and have gone through the evidence and material placed on record.
At the time of the registration of the case, complainant Ram Bhool had stated to the police that on the day of incident after boarding the bus from New Chandrawal, Subji Mandi he was going to godown of Navbharat Times. He got down from the bus at about 10.50 am at Palla mode Chaurah, Bakoli Raod and was going towards godown on foot, one person aged about 20-23 years wearing red colour shirt and stripe pant and another was wearing blue colour shirt and black colour pant came before him and tried to snatch the bag from his left hand having Rs. 39200/- and some papers. He resisted. On this, the person, who was wearing red colour shirt took out a pistol and another person took out one ustra and stabbed on his left hand palm. Blood came out and they snatched the bag from him. Meanwhile one motorcycle DL4SA-5324, being driven by a boy age about 25 years, came there and both the boys fled away from the spot while sitting on the motorcycle towards Palla road.
SC No.02/01 7/17So according to the complainant one boy wearing red colour shirt took out a pistol and another boy took out ustra and they robbed him and they ran away from the spot with the help of third boy, who was driving motorcycle.
The complainant has been examined before the Court as PW5. He has stated that in the year 1993, he was residing at 5466, New Chandrawal, Subzi Mandi, Delhi and was going to godown of Navbharat Times. At Alipur, he came down from the bus at the turning mode of Palla at about 11.00 am, while he had just gone to some distance from palla mode, two boys came from behind and caught hold of him and started snatching bag which was in his hand having Rs.39,200/-, but he did not loose the grip of the bag. So the accused Tayyab showed him one pistol/katta and another persons showed him ustra and they snatched his bag.
PW5 has further stated that he sustained injuries on h is hand with ustra or some other article, while they were snatching bag from him. Meanwhile accused Ajeet came on the motorcycle no. DL-4SA-5324 and both accused Tayyab and other person went away from the spot, while sitting on said motorcycle with accused Ajeet.
PW5 has further stated that he requested a cyclist to drop him at PS Alipur. He narrated the incident to police and on his statement FIR was registered. Thereafter, he was taken by the police somewhere near palla. There he saw all the above accused were apprehended by the police. His bag containing currency notes was also shown to him, which was identified by him. Bag with currency notes was taken into possession by the police.
PW5 has further stated that he got released the same on superdari from the Court. He was also medically examined on the same day in Hindu Rao Hospital and after completion of proceedings, he was relieved by the police. PW5 has also identified the superdari bond Ex.PW5/A. PW5 has further stated that he is not sure that Ex.P1 ustra is the same ustra, which was shown to him by accused SC No.02/01 8/17 persons. PW5 has identified katta which was shown to him by accused Tayyab as Ex.P4. He has also identified the currency notes Ex.P2 collectively and the bag in which he was carrying the currency notes as Ex.P3.
There is only one witness to the incident i.e. PW5 Ram Bhool, complainant himself.
Ld defence counsel has contended that during the examination of witness currency notes have not been produced nor motorcycle has been produced. Ld defence counsel has further contended that godown of Navbharat Times was near to the place, where incident took place, but no one was called from there. Ld defence counsel has further contended that witness cannot believed as he was taken to hospital after about two hours of recording of FIR, even otherwise he was not sure whether he sustained injuries with ustra or some other article. So he is not sure whether he sustained injuries with ustra. Ld defence counsel has further contended that PW5 has also not identified the ustra as the same with which injuries were caused to him. Ld defence counsel has further contended that PW5 has himself admitted in the cross examination that he has used the currency notes which were taken on superdari by him.
Ld defence counsel has further contended that defence of accused is that on the day of incident, complainant with 4/5 persons was going in the middle of GT Karnal Road and accused Ajeet came from behind on a motorcycle and asked the complainant as to why he was walking in the middle of the road. On this, complainant alongwith his associates started beating accused Ajit. Complainant also called some drivers from Navbharat Godown with some weapons in their hands and accused Ajeet sustained many injuries. Accused Tayyab was also beaten by the complainant, when he tried to save accused Ajit.
On the other hand Ld APP has contended that all these suggestions have been denied by the complainant Ram Bhool. The suggestions itself shows that accused Ajeet and Tayyab were present at the spot as the same has been SC No.02/01 9/17 admitted by them.
It is a matter of appreciation whether evidence of PW5 Ram Bhool, complainant is more trustworthy or defence of the accused persons is probable as there is not other witness, so there is no corroboration with the statement of PW5 complainant Ram Bhool, who is the sole eye witness of the incident. His testimony is reliable and inspire confidence. He has no motive to falsely implicate the accused persons in any manner. Accused were not known to him nor there was any previous enmity. PW5 has specifically stated that accused Tayyab has shown him a katta and other person showed him ustra and they snatched the bag.
PW5 has also stated that he sustained injuries on his left hand. Although MLC of Rambhool have not been proved by examining any doctor, but MLC is of Hindu Rao hospital. According to which, complainant was examined on 07/09/93 at about 4.50 pm. He sustained the small incise wound approximately ½ cm over the dorsem of left hand between thumb and index finger. From the nature of injuries it is clear that same was caused to force the complainant to loose the grip of the bag. Although PW5 has stated that he sustained injuries on his head with ustra or some other article, but this fact cannot be ignored that the case is of 1993 and PW5 has been examined in the year 2010 i.e. almost after about 17 years, so some shortcomings are likely to come in the deposition due to loss of memory, which is not intentional. PW5 has accordingly identified accused Tayyab as the same person, who showed him katta and committed robbery of Rs. 39,200/- with one another person.
PW5 Ram Bhool has also clearly identified accused Ajeet, who had come on motorcycle and both accused Tayyab and Ajeet fled from the spot om motorcycle no. DL-4SA-5324. The contention of Ld defence counsel that prosecution has not been able to produce the motorcycle, is itself not sufficient to falsify the deposition of PW5 that accused Ajeet had come to the spot on motorcycle. Even otherwise according to the suggestion of the accused persons SC No.02/01 10/17 accused Ajeet came there on the motorcycle and according to the accused persons a quarrel took place with complainant in which accused Ajeet and Tayyab sustained injuries.
PW4 W/ASI kailash was on duty on 07/09/93 as Duty Officer. According to PW4, FIR was registered on the statement of PW5 Ram Bhool. She has produced the original FIR registered in court. Copy of FIR is Ex.PW4/A. After registration of the case, copy was handed over to SI Surat Singh for investigation. SI Surat Singh has not been examined by the prosecution as during the proceedings he expired.
PW6 HC Sansar Pal had been examined, who was on patrolling duty on 07/09/93 with ASI Dharamveer Singh in the area of Bhakhtawar Pur. At about 11.00 am, he received information that three persons, on a red colour motorcycle, have snatched a bag containing Rs.39,200/- at Bakoli Mode on the point of katta from a person, who came down from a bus. They were also informed that those three persons on the said red colour motorcycle had gone towards Palla. So they made a nakabandi at zero point in between village Palla and village Dahisra. After some time, they saw a motorcycle coming towards them of the same colour and three persons were riding the same as per information. They asked them to stop, but motorcyclists took U turn and tried to fled away from there. Meanwhile, 2/3 persons, who were working in the nearby fields, also came there and with the help of those persons, they apprehended all those three persons, who were riding on the motorcycle. PW6 has further stated that one ustra was recovered from accused Tayyab alongwith bag having currency notes. PW6 has also stated that one katta and two live cartridges were recovered from accused Raj Kumar (since PO).
PW6 has further stated that SI Surat Singh also came there and all the articles i.e. Ustra, Katta, live cartridges, bag and currency notes were sealed separately with the seal of 'SSK' and were sized vide memo Ex.PW1/B and Ex.PW1/A. Motorcycle was also seized vide memo Ex.PW1/C. Prior to sealing the SC No.02/01 11/17 articles, sketches of katta, live cartridges i.e. Ex.PW6/A and ustra Ex.PW6/B were prepared. All the three accused persons were arrested and their personal searches were taken vide memo Ex.PW6/C (accused Rajkumar since PO), Ex.PW6/D (Ajeet) and Ex.PW6/E (Tayyab).
PW6 has identified the ustra as Ex.P1, which was recovered from accused Tayyab, currency notes as Ex.P2 collectively, bag in which currency notes were kept as Ex.P3 and katta as Ex.P4 , which was recovered from accused Raj Kumar (since PO).
PW6 has been cross examined by Ld APP for State on some limited aspects wherein he has stated that currency notes of Rs.39,200/- were recovered from accused Tayyab and further admitted that when accused persons took U turn they fell down from the motorcycle and sustained injuries and they were sent for their medical examination.
The public witness to the proceedings regarding recovery of currency notes, ustra and katta are PW1 Rameshwar and PW2 Sh. Bhagat Singh. PW1 has stated that he heard the noise and reached at the place at about 11-12 am, where three persons, who were riding on one motorcycle, were apprehended by the police, who had come from the side of palla and were going towards zero point. On search, one khakhi colour bag was found from those persons and the same was containing Rs25-30 thousand cash. One ustra was also recovered from them. PW1 put his thumb impression on seizure memo of currency notes Ex.PW1/A and also put his thumb impression at point A on seizure memo of recovery of Ustara, which is Ex.PW1/B. Motorcycle was seized vide memo Ex.PW1/C and PW1 put his thumb impression on it at point A. PW1 has further stated that he did not see country made pistol and live cartridge but put his thumb impression on seizure memo of country made pistol and live cartridges Ex.PW1/D. He has also not identified the accused persons due to lapse of 15-16 years. Regarding identification of ustra Ex.P1, PW1 has stated that it may be the same, which was SC No.02/01 12/17 recovered at that time, but PW1 has identified the photocopies of currency notes as Ex.P2 and khakhi colour bag as Ex.P3.
PW1 has been cross examined by Ld APP, wherein he has stated that village pradhan Baghat Singh also reached at the spot. Even in the cross examination, PW1 has not supported the case of prosecution regarding the name of accused persons as Ajeet Singh and Tayyab and Raj Kumar (since PO). He has been confronted with his statement recorded u/s 161 Cr.PC Ex.PW1/E. He has not supported the case of prosecution to the fact that currency notes were recovered from accused Tayyab and one katta with two live cartridges were recovered from accused Raj Kumar (since PO). Regarding the identification of the accused persons, PW1 has stated that he had come to know about the names of the accused Ajeet and Tayyab during their appearance before the court.
PW2 Bhagat Singh has stated that he was working in his fields at about 10.00 am. He saw public gathered on the road and police. So he reached there and saw one SI and one constable. Police had apprehended some persons and that police was taking photographs of the currency notes by placing them on the road. As the crowd increased, so they were pushed behind. PW2 has not supported the case of the prosecution, so he has been cross examined by Ld APP. In his cross examination, PW2 has stated that he cannot identify the currency notes and motorcycle due to lapse of time. He has denied his statement mark A, but he has identified his signature on Ex.PW1/A, Ex.PW1/B, Ex.PW1/C and Ex.PW1/D. In the cross examination by defence counsel, PW2 has stated that he is illiterate, so he does not know what is written in Ex.PW1/A to Ex.PW1/D. Ld defence counsel has contended that both PW1 and PW2 have not supported the case of prosecution regarding the recovery of articles as the same as to which article was recovered from which accused and whether the accused persons, who were apprehended in the present case are the same accused persons, who were present at the spot, when the police apprehended them at nakabandi. Ld SC No.02/01 13/17 defence counsel has further contended that PW6 HC Sansarpal has admitted in his cross examination that neither they gave beatings to the accused persons nor the public persons in their presence which supports the defence of accused persons that they were beaten by the complainant and his associates.
Ld defence counsel has further contended that accused persons were examined by PW3 Dr. R.K. Gupta on 07/03/93. All the three accused Ajeet, Tayyab and Raj Kumar (since PO) were found sustaining injuries. Their MLCs are proved as Ex.PW3/A, Ex. PW3/B and Ex.PW3/C. Ld defence counsel has further contended that accused persons were produced before the doctor with the alleged history of being beaten by the public persons, which has been denied by PW6 HC Sansar Pal. So the injuries sustained by accused persons are not explained, which also supports the defence of accused persons. Ld defence counsel has further contended that there is no opinion of the doctor nor he has been cross examined in any manner that injuries could have been sustained by the accused persons due to falling on road. So the deposition of witnesses are contradictory as to how the accused persons sustained injuries which again supports their defence.
Ld defence counsel has further contended that according to PW2 Sh. Bhagat Singh, when he reached at the spot, he saw police was taking photographs of currency notes by placing them on road. According to PW6, photocopies of currency notes were prepared in PS in his presence before sealing them.
Ld defence counsel has further contended that from this it is clear that recovery of currency notes and their sealing is doubtful. Ld defence counsel has further contended that according to PW5 Ram Bhool, he was taken by the police to village Palla and there he saw that all the three accused persons apprehended by the police and the currency notes were shown to him, which were identified by him as his own whereas PW6 has nowhere stated that the complainant have also reached their and had identified accused persons along with bag and currency notes, which were recovered from them.
SC No.02/01 14/17Ld defence counsel has further contended that signature of the complainant are not appearing on any of the document allegedly prepared at the spot at the time of recovery, which also shows that the complainant had not gone to the place, where according to the case of prosecution, accused persons were apprehended.
The submissions of the Ld defence counsel are forceful but it is to be seen, as to what are the impact of these submissions. Whether these submissions are making the witnesses unreliable or they have to be believed in part.
So far as testimony of PW6, he was on patrolling duty with ASI Dharamveer Singh in the area of Bakhtawar Pur and at about 11.00 am, they received information that three persons on a red colour motorcycle had snatched a bag containing Rs.39,200/- at Bakoli mod on the point of katta from a person. So they made nakabandi at zero point and after sometime, a motorcycle came towards them of the same colour and three persons were riding the same. They asked them to stop, but those persons took U turn and try to fled away from there and they apprehended them with the help of public persons.
PW6 has further stated that one Ustra was also recovered from accused Tayyab and bag with currency notes was recovered from accused Ajeet Singh and one katta and two live cartridges were recovered from accused Raj Kumar (PO). PW6 has identified the articles recovered from the accused persons. PW6 inspires confidence in this respect.
It is doubtful whether the proceedings were conducted at the spot or at the PS, because there is no corroboration to these proceedings. Even PW5 Ram Bhool has stated that he was taken by the police somewhere near Palla and his bag with currency notes was shown to him, which he identified as his own, but it is not stated by PW5 that it was recovered from which accused because it was already recovered by PW6 with ASI Dharamveer Singh. This also falsify the fact that PW1 and PW2 have not supported the case of the prosecution except the SC No.02/01 15/17 preparation of memos which bears their signatures. According to PW1 Khakhi colour bag was recovered from those persons containing 25-30 thousand in cash. Ustra and motorcycle were also seized. According to PW1, he did not tell to the police that one ustra and one khakhi colour bag containing Rs. 39,200/- was recovered from accused Tayyab, but he told that one ustra and one bag containing Rs.30-40 thousand was recovered from accused Tayyab, whereas PW2 has stated that when he reached there, he saw, police was taking photographs of the currency notes by placing them on the road. So atleast PW1 and PW2 and PW6 hve corroborated each other regarding the recovery of currency notes alongwith khakhi colour bag and ustra.
There may be some irregularties in conducting the proceedings by the police but it has been proved beyond reasonable doubts by the prosecution from the testimonies of PW1, PW2 and PW6 that currency notes were recovered alongwith Khakhi colour bag from the accused persons and prosecution has also been able to prove beyond reasonable doubts that all three accused persons i.e. Tayyab, Ajeet and Raj Kumar (PO) came at nakabandi on the motorcycle and while taking U turn on seeing the police, they fell down and sustained injuries. One ustra, one katta with live cartridges and currency notes amounting Rs.39,200/- alongwith Khakhi bag were recovered.
PW5 Ram Bhool has stated that he had obtained the currency notes on superdari and he has proved the superdari bond Ex. PW5/A. He has identified the photocopies of currency notes before the court, so identification of the currency notes is also proved. Accused persons have not claimed the ownership of currency notes in any manner. The only defence taken by them is that accused persons had a quarrel with complainant and complainant and his associates gave beatings to accused Ajeet and Tayyab. This does not seem to be probable in any manner. Accused Tayyab and Ajeet both has stated that they have been falsely implicated in this case, but they have not disputed their place of arrest in any SC No.02/01 16/17 manner. According to the deposition of PW6, they were arrested at place of Nakabandi after recovery, so in fact there is no denial from the accused persons that they were not arrested at the place deposed by PW6.
According to the deposition of PW6 HC Sansarpal katta and live cartridges were recovered from accused Raj Kumar (Since PO), so there is no need to discuss the deposition of PW7 Sh. K.C. Varshney, who has examined katta and live cartridgesn and deposition of PW9 Sh. Karnail Singh, who has given sanction u/s 39 of Arms Act against accused Raj Kumar (since PO). Even there is no need to discuss the part statement of PW8 HC Rambir regarding deposit of pullanda at FSL office.
PW8 has also stated that as per instructions of the IO, he took accused Ajjet to Hindu Rao hospital for his medical examination which is not disputed by Ld defence counsel.
In defence, accused Ajeet has examined DW1 Sh. Phool Singh. He has deposed about the character of accused Ajeet and has further deposed that on 07/09/93 in the morning at about 8.00 am, accused Ajeet had gone to purchase a cow at Haryana by his motorcycle. Accused asked him to accompany him, but he refused as he was busy. This also shows that on 07/09/93, accused had gone on his motorcycle at about 8.00 am. The address of the accused is of Jahangir puri whereas the incident took place at about 9.50 am at Alipur, Bakoli Road Chowk, so it cannot be said that accused could not have reached there at about 9.50 am after leaving his house at about 8.00 am. In his deposition, DW1 has supported the case of prosecution rather than of accused thatAjeet was on motorcycle on that day.
Ld APP has contended t hat DW1 has no knowledge of the case against accused, hence except deposition about character of accused, he is not helpful to the accused in any manner.
DW2 Sh. Vinod Kumar has been examined in defence by accused SC No.02/01 17/17 Tayab. He has simply deposed about the character of accused Tayyab. In cross examination, he has denied the knowledge if accused Tayyab is involved in any case..
So except some part of the evidence of DW1 Sh. Phool Singh, who has supported the case of prosecution, both Dws are not helpful to the accused persons except about their character. The defence otherwise taken by the accused persons that they were beaten by the complainant and his associates is not probable at all. More so, PW5 Ram Bhool has denied this suggestion. From the deposition of PW6 HC Sansarpal, it is clear that accused persons sustained injuries while they took U turn at Naka bandi Zero point and fell down. The contradictions as pointed out by Ld defence counsel are not material and are not major to belied the testimonies of the witnesses to the extent that witnesses are not reliable and are not trustworthy.
From the deposition of PW5 Ram Bhool, prosecution has been able to prove beyond reasonable doubts that on 07/09/93 accused Tayyab had shown katta to complainant Ram Bhool alongwith one person, who had shown him a ustra and snatched a bag containing Rs.39,200/- in a bag from him.
The prosecution has also been able to prove beyond reasonable doubts that meanwhile accused Ajeet came on motorcycle and both accused and other person fled away while sitting on motorcycle no. DL-4SA-5324.
From the depositions of PW1, PW2 and PW6, the prosecution has also been able to prove beyond reasonable doubts that accused Ajeet and Tayyab and Raj Kumar (since PO were apprehended at Nakabandi at Palla mode and Ustra, Katta with live cartridges and currency notes of Rs. 39,200/- in a khakhi colour bag were recovered.
It has been held in 2002 VIII AD(S.C.)385 titled as Gangadhar Behera and Ors. Vs. State of Orissa that " Even if major portion of evidence is foudnd to be deficient, in case residue is sufficient to prove guilt of an accused, SC No.02/01 18/17 notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deificient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has his maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be regarded, and not that it must be disregarded. The doctrine merely invloves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called a 'mandatory rule of evidence'.( See Nisar Alli Vs. The State of Uttar Pradesh, AIR 1957 SC 366). Merely, because some of the accused persons have been acquitted though evidence against all of them so far as directed testimony went, was the same does not lead as necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and another Vs State of Punjab AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of a testimony were to be rejected, because witness was evidently speaking an untruth in some aspects, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidary to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well."
SC No.02/01 19/17It has been further held in 1994(1) RCR 429 titled as Dhananjoy Chatterjee alias Dhanna Vs State of West Bengal that " testimony of hostile witness need not be ignored. Court can scrutinise the testimony of hostile witness and accept that portion of the same which receives corroboration from other evidence on record."
In view of the above the testimony of PW1 and PW2 alongwith PW6 can be relied upon safely to the extent that the accused persons were apprehended at the place of Nakabandi by the police party and the exhibits alongwith currency notes were recovered from them.
The prosecution has not been able to prove beyond reasonable doubts that currency notes were sealed at the spot. PW1 and PW2 have stated that their signatures were obtained on the seizure memo and it is also stated that photographs of currency notes were also taken by police by placing them on road, but this clearly itself does not falsify the depositions of PW6 that recovery was effected from the accused persons as deposed by him. It also does not falsify the deposition of PW6 to the extent that accused persons were apprehended at Nakabandi and they sustained injuries while taking U turn on the motorcycle and fell down.
The prosecution has also been able to prove beyond reasonable doubts that ownership of currency notes, which were released to complainant on superdari, who had executed the superdari bond as Ex. PW5/A and has identified the photocopies of currency notes before the court.
Accused persons has not claimed the ownership of currency notes in any manner. Nothing has come on record and in the cross examination of witnesses to disbelieve their testimonies in any manner. Nothing has come on record that PW5 Ram Bhool has any motive to falsely implicate the accused persons or to depose against them. There was no enmity between complainant and accused persons. Even PW1 and PW2 have also supported that currency SC No.02/01 20/17 notes were recovered at the spot i.e. at Palla mode , where accused persons were apprehended.
So regarding the recovery of currency notes, PW1, PW2 and PW6 have corroborated each other. PW6 have specifically stated that accused persons were apprehended at the spot. The testimony of PW6 is unrebutted and unshaken in this respect and there is not reason to disbelieve him in any manner.
Accordingly prosecution has been able to prove beyond reasonable doubts, offences u/s 392/34 read with section 397 against accused Tayyab and offence u/s 392/34 against accused Ajeet for which they are held guilty and convicted.
Announced in Open Court on dated 21st August 2010 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No.02/01 21/17 SC No.02/01 22/17