Delhi District Court
State vs Vicky @ Gagan on 22 September, 2023
IN THE COURT OF SH. ANUBHAV JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
SHAHDARA DISTRICT, DELHI.
State Vs. Vicky @ Gagan @ Dimple
FIR No.: 345/2010
PS: Anand Vihar
JUDGMENT
A Case Identification 83406/2016
Number
B Name of the Sh. Naveen Kumar
Complainant
C Name of the accused & Vicky @ Gagan @ Dimple
his parentage and S/o Sh. Budh Sen
address R/o E-Geeta Bhawan, Teliwara,
Chhota Bazar, Shahdara,
Delhi.
D Date of commission of 29.07.2010
the offences
E Date of Institution of the 22.01.2011
case
F Offences charged Offences u/s 392/411/34 IPC
G Plea of accused persons Pleaded not guilty
H Order Reserved on 14.09.2023
I Date of Pronouncement 22.09.2023
of judgment
J Final Order Accused is convicted of the offence
charged.
K State represented by Sh. Arun Kumar Mavi, Ld. APP for the
State.
FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 1/24
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Present accused namely Vicky @ Gagan is produced before the court to stand trial for the offence punishable u/s 392/411/34 IPC.
2. In brief, the facts of the case as per the the prosecution are that on 29.07.2010, upon receiving of DD no. 26A, SI Arun Sindhu along with Ct. Rahul reached at the spot i.e. near CA institute, where they were informed that PCR has already taken the complainant as well as accused persons to the PS. Upon the same, police officials returned back to PS, where they met complainant Naveen Kumar. Further, complainant Naveen Kumar got his complaint registered, wherein he stated that on 29.07.2010, he along with two of his friends were going towards Krishna Nagar from Indirapuram and at about 08.30 pm, when they reached at Nepali Mandir, CA Institute, they found three persons having Pepsi at the side of the road. He further stated that said persons asked them to pay for their Pepsi drink and when the complainant denied the same, one of the accused after breaking the Pepsi bottle put the same against the abdomen of the complainant and also asked co-accused namely Vicky to pull out the knife. Complainant further stated that said accused person took out Rs. 500/- from his pocket and Rs. 270/- each from the pockets of his friends namely Rajbir and Jai Prakash.
He further stated that all accused persons thereafter tried to flee away from the spot on the vehicle bearing no. DL 7CC 3929, upon which the complainant and his friends started raising noise and public persons as well as PCR stopped the said accused persons. He further stated that two of the accused persons fled away from the spot while accused Vicky @ Gagan was apprehended.
FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 2/24Upon the said complaint of the complainant, FIR was registered by the IO against accused persons for the offences punishable u/s 392/34 IPC.
3. Further, during the course of investigation, IO seized the case property recoevered from the possession of accused Vicky, seized that vehicle bearing no DL 7CC 3929 arrested accused Vicky and tried to trace out remaining two accused persons, however, same could not be found. Io further recorded the statement of the witnesses, prepared the site plan and after completion of investigation, IO filed the charge-sheet before the court against accused Vicky @ Gagan for the offence u/s 392/411/34 IPC.
4. Upon filing of charge-sheet, cognizance of offence was taken by Ld. Predecessor Court on 22.01.2011. Thereafter, accused Vicky appeared before the court and copy of charge-sheet was supplied to him u/s 207 Cr.P.C on 23.04.2011.
5. That Ld. Predecessor court vide order dated 15.02.2012 charged the accused Vicky for the offence punishable u/s 392/411 IPC, to which the accused pleaded not guilty and claimed trial.
6. Prosecution in order to prove its case has examined the following witnesses:-
PW1/ Naveen, who is the complainant, deposed that on 27.07.2010 at about 08.30 pm, he along with Jai Prakash was going towards Krishna Nagar & when they reached at Nepali Mandir, CA Institute, they found three persons having pepsi and the said persons stopped the complainant & his friend. He further deposed that said persons demanded money to pay for their drink and when the complainant refused for the same, the accused persons started beating them. He further deposed that accused Vicky, after breaking the Pepsi bottle, put FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 3/24 up same upon the abdomen of the complainant and demanded money. He further deposed that other two accomplice of accused Vicky threatened by saying "Vicky nikal chaku yeh aise nahi manne wala" and thereafter Vicky forcibly took out Rs. 500/- from his pocket and Rs. 270/- each from his friends namely Rajbir and Jai Prakash. He further deposed that accused persons thereafter tried to flee away from the spot on the vehicle bearing no. DL 7CC 3929, upon which, he & his friends started raising noise and public persons as well as police stopped the said accused persons. He further deposed that two of the accused persons fled away from the spot while accused Vicky @ Gagan was apprehended. He further deposed that thereafter, police took the complainant, his friends Rajbir & Jai Prakash, accused Vicky & his car to the PS where IO recorded statement of the complainant Ex.PW1/A and police registered the FIR in the present matter and arrested accused Vicky vide memo Ex.PW1/B. He further deposed that personal search of accused Vicky was conducted vide memo Ex.PW1/C and police recovered Rs. 1,040/- from accused Vicky and seized the same vide memo Ex.PW1/D. He further deposed that police also seized the said car vide memo Ex.PW1/E and prepared site plan of the place of incident.
After the case property was produced by MHCM, witness states that Rs. 750/- was recoeverd from the possession of accused Vicky.
PW2/ Jai Prakash deposed that he do not remember the date, month and year of the incident, however same is 7 years old incident. He further deposed that on the day of incident he along with Naveen and Rajbir had come from Indrapuram at Vishwas Nagar for taking meal and were going towards Krishna Nagar. He further deposed that at about 08:30 PM when they reached near CA Building, Nepali Mandir, Vishwas Nagar, Delhi they saw four persons consuming liqour who started demanding money from them (complaint and witness) for consuming liqour. He further deposed that one person out of them FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 4/24 took out a knife and the another person broke the bottle and they demanded money from us and when same was refused all the four persons forcibly took out amount of Rs. 550/- from his pocket and amount of Rs. 950/- from the pocket of Naveen and amount of Rs. 750/- from the pocket of Rajbir. He further deposed that thereafter all the four persons sat in a car and took uturn and came on the other side of the road. He further deposed that they raise hue and cry upon which Rinku (son of my uncle) who used to run a tea stall near the CA building came on the road in front of the car and threw a stone on the mirror of the car due to which car stopped. He further deposed that said three persons ran away from the spot and the accused present in the court (correctly identified by the witness) was apprehended by the police as police vehicle came at the spot. He further deposed that thereafter police took him, Naveen, Rajbir and accused with car to PS Anand Vihar and registered the FIR. He further deposed that police recorded his statement in the PS and nothing was recovered from the possession of accused in his presence. He further deposed that police arrested the accused vide arrest memo already Ex.PW1/B and conducted his personal search vide memo already Ex. PW1/C. He further deposed that he put his thumb impression on the documents and police detained the accused in the lock up. Witness further correctly identified the car bearing no. DL7C03929 when shown in the photographs. Witness however failed to correctly identify the currency notes when shown to him.
It is pertinent to state in here that APP seeks permission to cross examine the witness since the witness does not reveal complete and true facts and same was allowed by the court. During the course of cross examination of the witness by Ld. APP for the state it is stated by the witness:
It is correct to suggest that the incident took place on 29.07.2010. It is correct that we came from Indra Puram and were going to Krishna Nagar to meet our friend. It is correct to suggest that we had seen three person drinking pepsi near the CA building. It is correct that one person out of above three person broke a bottle and kept that broken bottle on the abdomen of Naveen. It is correct that the person stated "vicky nikal chaku yeh aise nahi manne wala". It is correct that the FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 5/24 abovesaid persons forcibly took out amount of Rs. 500/- from the pocket of Naveen and forcibly took out amount of Rs. 270/ from my pocket and forcibly took out amount of Rs. 270/- from the pocket of Rajbir. I was having two currency note of Rs. 100/- each and 7 currency notes of Rs. 10/- each. It is correct that when all the three persons tried to ran away in the car, public and police came there and accused Vicky was apprehended at the spot.
I had seen four persons at the spot but police written three persons in my statement.
It is wrong to suggest that I had seen three persons at the spot and three persons had committed incident with us.
At this stage statement of Ex. PW2/A from portion A to A1 is read over to the witness but witness denied to make such statement to the Police. Confronted with statement Ex. PW2/A from portion A to A1 where it is recored.
I am confirmed about the snatching of Rs. 500/- from Naveen, Rs. 270/- from me and Rs. 270/- from Rajbir.
It is correct that police recovered amount of Rs. 750/- from accused Vicky in my presence. The seizure memo of currency note is already Ex. PW1/D. It is wrong to suggest that I have intentionally not identifyied the recovered currency note today in the court. It is wrong to suggest that I am giving contradictory statement as I want to save accused.
PW3/ HC Nafees Khan has deposed that on 29.07.2010, he was posted at PCR no. R-51 and on that day, he along with one gun man went to Vishwash Nagar from KKD court where they saw some public persons were shouting by saying that 'pakro pakro' & also indicated towards one car make I-Kon bearing no. DL 7CC 3929. He further deposed that he stopped the said car with the help of his driver and two boys came down from the said car and fled away from the spot and that the driver of the said car was apprehended. He further deposed that in the meanwhile, three boys came there and told him that the said car driver and his associates has snatched from them. He further deposed that he interrogated said accused driver who revealed his name as Vicky and he took the said accused driver and the complainant to PS Anand Vihar and handed over them to SI Arun Singh. Witness correctly identified the accused & the case property in the court.FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 6/24
PW4/ ASI Subhash deposed that on 30.07.2010, he joined the investigation of the present with case with IO SI Arun Sindhu and they went to PS Vivek Vihar to take accused Vicky @ Gagan as at that time, no lock-up was in PS Anand Vihar and they came back to PS Anand Vihar, where IO prepared dosiar. He further deposed that they along with accused went to Hedgewar Hospital where accused was medically examined and thereafter, he was produced before the Court and his one day PC was taken by IO. He further stated that on 31.07.2020, he again joined the investigation of the present case with IO and they produced accused before the Court and he was sent to JC. Witness correctly identified the accused in the court.
PW5/ SI Vakil Khan & PW6/ HC Mandeep has deposed that on 30.07.2010, they joined the investigation of the present with case with IO SI Arun Sindhu and they alongwith accused went to Bhola Nath Nagar for search of co-accused, but he could not be found. They further deposed that they also went to Shahdara Railway Station near footover bridge and further went to end of Platform towards Ghaziabad side for search of co- accused, however since co-accused could not be found they went to the PS Vivek Vihar where accused Vicky sent to Lock-up. Witness correctly identified the accused in the court.
PW7/ HC Rahul Kumar & PW8/ Inspector Arun Sindhu deposed that on 29.07.2010 at about 08.45 pm, upon receiving of DD no. 26, they went to CA building near Nepali Mandir, karkardooma, where they came to know that the accused as well as the complainant were already taken to PS by the PCR and they reached at the PS, where HC Nafis Khan, I/C PCR, produced accused Vicky along with three other persons and one car . They further deposed that complainant Naveen & one FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 7/24 Rajbir was also present at the PS at that time and PW8 recorded statement of the complainant / victim Naveen Kumar and on the basis of said statement, he prepared rukka & handed over the same to DO for registration of FIR. They further deposed that they went to the spot along with the complainant and prepared site plan Ex.PW8/A at the instance of the complainant. They further deposed that they came back at the PS and PW7 produced the original rukka and copy of registered FIR. They further deposed that upon the personal search of accused Vicky, an amount of Rs. 750/- was recovered, which was seized vide seizure memo Ex.PW1/D. Further, upon the personal search of the accused vide Ex.PW1/C, one mobile phone and one DL was recovered and he further arrested accused vide memo Ex.PW1/B. IO further deposed that he seized the car bearing no. DL 3929 vide seizure memo Ex.PW1/E and also recorded disclosure statement of accused Ex.PW7/A.IO further deposed that he recorded the statements of both the witnesses namely Rajbir Mark PW8/A & Mark PW2/A and got conducted medical examination of accused. He further deposed that on 30.07.2010, accused was produced in the court and his one day PC was obtained and accused was taken to the spot to trace out the weapon used in the offence and further, pointing out memo was prepared at the instance of accused Ex.PW7/B. IO further deposed that accused was taken to Bhola Nath Nagar and Railway Station Shahdara for search of co-accused persons but he could not be traced out. Witness correctly identified the accused in the court.
7. It is pertinent to state in here that accused admitted present FIR no.345/2010 PS Anand Vihar and DD no.26A dt. 29.07.2010 u/s 294 Cr.PC on 05.08.2022 & his statement was recorded to that effect.
8. Further, upon completion of prosecution evidence, same was closed FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 8/24 vide order dated 05.08.2023 and matter was listed for statement of accused u/s 313 Cr.PC.
9. Statement of accused u/s. 313 Cr.P.C was recorded on 14.09.2023, wherein accused denied the allegations so levelled against him by the prosecution and stated that he is falsely implicated in the present case. He further stated that he was present at the spot and was intoxicated and that there was already some altercation taking place at the spot and he was wrongfully caught by public persons. It is further stated that there were several persons at the spot and police officials falsely implicated him in the present case and police officials took Rs. 2500/- from his pocket. He further did not avail the opportunity to lead defence evidence and the matter was fixed for final arguments.
10. It is argued by Ld. APP for the state that complainant as well as victim/eye witness have supported the case of prosecution. It is further argued that accused Vicky was apprehended at the spot and recovery of case property was affected from his person. It is further argued that prosecution ahs proved it s case beyond reasonable doubt and that accused is liable to be convicted for the offences he is charged for.
11. On the other hand, Ld. Counsel for the accused argued that there are several contradictions in the testimonies of the complainant and other injured, thereby making the case of prosecution unreliable. It is argued that IO has further not investigated the case appropriately and has not recovered the alleged bottle used for commission of offence. It is further argued that remaining co- accused were not arrested by the IO. It is argued that prosecution has failed to prove its case beyond reasonable doubt and accused Vicky is entitled to be acquitted.
FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 9/2412. I have heard the arguments so led by Ld. APP for the state and counsel for the accused and perused the case file carefully.
13. It is settled proposition of criminal law that burden lies upon prosecution to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit from the weaknesses, if any, in the defense of the accused.
CASE OF PROSECUTION
14. It is the case of prosecution that:
a) On 29.07.2010 at about 8.30 PM complainant Naveen alongwith his friends Jai Prakash and Rajbir was to Krishna Nagar from Indirapuram and was near CA Building.
b) That accused Vicki alongwith 2 other persons was standing at the road and all were drinking Pepsi.
c) That said persons demanded money from the complainant and his friends.
d) That when complainant and his friends refused to give money, one of the accused broke the pepsi bottle and put it upon the abdomen of complainant Naveen and further asked accused Vikki to pull out a knife.FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 10/24
e) That thereafter said person took out Rs. 500/- from the pocket of complainant and Rs. 270/- each from pocket of Jai Prakash and Rajbir.
f) That accused persons tried to fled away from the spot in car make Icon bearing no. DL 7CC 3929, when accused Vikki alongwith car was apprehended by public persons and police officials and remaining two persons managed to flee away from the spot.
EVIDENCE LED BY PROSECUTION
15. Prosecution on order to prove its case have examined complainant Naveen and witness/victim Jai Prakash. Both the said witnesses deposed in line of case of prosecution and further correctly identified accused Vicky in the court as perpetrator of crime. Further complainant Naveen correctly identified the currency notes recovered from the possession of accused Vicky.
16. Prosecution has further examined HC Naffes Khan, PCR official, who apprehended the accused person at the spot. Nafees Khan identify accused Vicky as the person who was trying to flee away from the spot alongwith two other accused.
17. Prosecution has further examined, IO and other police witnesses who have joined the investigation alongwith IO, in order to prove its case.
STATEMENT OF ACCUSED U/S 313 CR.P.C
18. That accused in his statement u/s 313 Cr.P.C has stated that he has been falsely implicated in the present case. Accused further denied the allegations so levelled against him by the prosecution. Accused further stated that he was FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 11/24 having the car bearing no. DL 7CC 3929. Further relevant portion of the statement of the accused is being reproduced as under:
Q. Do you want to say anything else?
A. I am innocent and falsely implicated in this case. I was present at the spot and was intoxicated. There was already some altercation taking place at the spot. I was wrongfully caught by public persons. There were several persons at the spot and police officials falsely implicated me in the present case and police officials took Rs. 2500/- from my pocket.
DEFENCE OF ACCUSED Contradiction in testimony of witnesses
19. It is argued by Ld. Counsel for the accused that there are several material contradictions in testimony of complainant and other victim namely Jai Prakash. Ld. Counsel for the accused Vicki pointed out towards following contradictions:
a) That while complainant Naveen during the course of his examination in chief have stated that it was accused Vikki who have kept Pepsi bottle on his abdomen after breaking it, however, during the course of cross examination complainant denied the same and stated:
" ..Accused Vicki had not kept the bottle on my abdomen and it was another accomplice of accused Vicky who kept bottle on my abdomen.."
b) That during examination in chief, it is stated by the complainant that police recovered stolen amount of Rs. 1,040/- from the accused Vicky, while subsequently, after case property is shown to him, he stated that amount of Rs. 750/- was recovered from accused Vicky.
c) That another witness/ victim Jai Prakash, in his statement have stated that there were 4 persons, while as per the case of prosecution, there were only 3 persons present at the spot.
FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 12/24d) That witness Jai Prakash stated that during the course of his examination in chief that said persons were consuming liquor, while as per the statement of complainant, accused persons were having Pepsi.
e) That witness Jai Prakash, during the course of his examination in chief have stated that accused persons took out Rs. 550/- from his pocket, Rs. 950/- from pocket of Naveen and Rs. 750/- from pocket of Rajbir ( as per complainant Naveen, accused persons took out Rs. 500 from his pocket and Rs. 270/- each from the pocket of Rajbir and Jai Prakash.)
f) That witness Jai Prakash during the course of his cross examination has stated that he has not given his statement u/s 161 Cr.P.C to the police and his thumb impression was taken by the police on a document prepared. Relevant portion of the cross examination is being reproduced as under:
".. My statement u/s 161 Cr.P.C which is marked PW2/A was not given by me to the IO. Vol. Naveen gave statement to police. I had put my thumb impression on the document prepared by the police and the documents were duly filled up when I put my thumb impression..."
g) That witness Jai Prakash, during the course of his examination in chief have stated a new story that:
".... Thereafter all the four persons sat in a car and took uturn and came on the other side of the road. We made hue and cry. Rinku (son of my uncle) used to run a tea stall near CA building. He came on the road in front of the car of the abovesaid person and threw a stone on the mirror of the car due to which car stopped...."
h) That witness Jai Prakash failed to identify the case property i.e. currency notes in the court.
a) Lapses in Investigation by IO FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 13/24
20. It is further argued by Ld. Counsel for the accused that three was lapses on the part of IO to conduct investigation. Ld. Counsel pointed out:
a) That IO has failed to apprehend all the remaining co-accused.
a) That IO has not collected the alleged broken Pepsi bottle from the spot.
b) That IO during the course of his cross examination have stated that currency notes were recovered from the possession of accused prior to registration of FIR, however, the seizure memo bears FIR Number.
c) That no medical examination of the victims was got conducted by the IO.
d) No TIP of the currency notes was got conducted.
21. Before proceeding further with case in hand on merits, in order to cull down question in controversy, this court deems it appropriate to discuss in here evidentiary value of the statement given by the accused u/s 313 Cr.P.C. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 Hon'ble Apex Court observed as follows:
52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction.
Even under the latter, he faces the consequences in law.
22. As observed by Hon'ble Apex Court, statement of accused u/s 313 Cr.P.C FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 14/24 in so far as support the case of prosecution, can be used against him. As discussed above, accused Vicky in his statement u/s 313 Cr.P.C has admitted that he was present at the spot at the alleged point of time and was intoxicated. Accused further admitted the fact that he was having car bearing no. DL 7CC 3929 and that he was apprehended by the public persons.
The only defence so raised by accused in his statement u/s 313 Cr.P.C was that there was some altercation already going on at the spot and that he has been wrongfully caught.
23. It is further pertinent to state in here that presence of accused at the spot, at the alleged time of incident was also not disputed by the accused, since at the time of cross examination of the complainant, it is stated:
"...It is correct that quarrel between me and another alleged accomplice took place. It is correct that accused was driving the car in which other two persons were sitting on that day...It is correct that accused present in the court was only driver of the other two persons..."
24. Since the presence of accused at the spot, at the alleged point of time with other accused is not in dispute, this court shall further deal with defence so raised by Ld. Counsel for the accused. The first defence so raised was that there are several contradictions in the testimony of the complainant and other eye witness/ victim Jai Prakash.
25. As such, before proceeding further with the said defence, this court deems it appropriate to discuss in here law with regard to evidentiary value attached to testimony of injured and discrepancies in the testimony of injured persons. For the same, I may gainfully refer to observation made by Hon'ble Apex Court in Mano Dutt v. State of U.P., (2012) 4 SCC 79 : (2012) 2 SCC (Cri) 226 wherein Hon'ble Supreme Court observes as follows:
FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 15/2430. Salik Ram was examined as PW 2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. In our view non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.
31. We may merely refer to Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] where this Court held as under: (SCC pp. 271-72, paras 28-30) "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 [(1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Machhi Singh v. State of Punjab [(1983) 3 SCC 470 :
1983 SCC (Cri) 681] , Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559] , Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113] , Bhag Singh [Bhag Singh v. State of Punjab, (1997) 7 SCC 712 : 1997 SCC (Cri) 1163] , Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] , Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] 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) FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 16/24 '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 [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] 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 [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] 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 [(2006) 12 SCC 459 :
(2007) 2 SCC (Cri) 214] ). 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 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."
To the similar effect is the judgment of this Court in Balraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .
Further, Hon'ble High Court of Delhi in Mukesh Singh v. State 2014 SCC OnLine Del 912, observed as follows:
17. The testimony of an injured eye witness must be placed at a higher pedestal, as such witness is not only an eye witness of the crime but he himself is a victim of crime and therefore, he is expected to give a truthful version of the entire scene of crime and also with regard to the description of the persons who are the perpetrators of the crime. The witness who himself receives FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 17/24 injuries of serious nature during assault would not normally let go the real culprits until and unless the defence succeeds to establish that there was a strong motive on the part of such a witness to save the real culprits and falsely implicate the innocent persons. It is also a settled legal position that minor omissions, discrepancies or improvements in the testimony of an eye witness cannot discredit his testimony unless the same militates against the core or heart of the prosecution case.
It was further observed that :
20. Minor contradictions/improvements cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the judgment 'State of Uttar Pradesh v. Naresh', : (2011) 4 SCC 324 as under:
27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.) Further Hon'ble Apex Court in Kishan Singh Rawat vs State, CRL.A. 7/2006, as follows :
In the case of Shyamal Ghosh v. State of West Bengal, reported at 2012 (7) SCC 646, it has been held by the Apex Court that while considering contradictions the Courts must read the testimonies of the witnesses as a whole and only consider those aspects, which go to the root of the matter and no further contradiction would affect the case of the prosecution. Relevant portion of the judgment reads as under:
"46. Then, it was argued that there are certain discrepancies and FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 18/24 contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there is some variation in the statement of PW 7,W 9 and PW 11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.
47. xxxx
48. xxxx
49. It is a settled principle of law that the Court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.
xxxxx
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contra-distinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.
69. Another settled rule of appreciation of evidence as already FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 19/24 indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes I may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
70. In terms of the explanation to Section 162 Cr.P.C. which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context shall be a question of fact. A bare reading of this explanation reveals that if a significant omission is made in a statement of a witness under Section 161 Cr.P.C., the same may amount to contradiction and the question whether it so amounts is a question of fact in each case. (Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 and Subhash v. State of Haryana (2011) 2 SCC 715.
26. In light of the law discussed above, admittedly there are certain discrepancies in the testimony of witnesses with regard to amount of money robbed, amount of recovery and role of accused. However, considering the settled proposition of law that statement of the witnesses have to be read as whole and part of the same cannot be read in isolation, there is consistent statements of both the victims that accused Vicky was at the spot alongwith other accused. Further both the witnesses have stated that one of the said accused person put broken Pepsi bottle on the abdomen and further took some money from pocket of all the victims. Recovery of Rs. 750/- was also effected from accused Vicky. Further, accused was arrested by the police near the spot alongwith his vehicle while he was trying to flee away from the spot and complainant identified him at the spot. Both the witnesses further correctly identified the accused in the court.
27. Further, the discrepancies even if read as whole, cannot be said to be FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 20/24 material in nature so as to be fatal to the case of prosecution. Contradictions, if any, between the testimony of the witnesses cannot be considered to be as material enough which may defeat the case of prosecution as whole. Accused Vicky is further correctly identified by both the witnesses in the court as well as by HC Nafis ( PCR official) in the court.
28. This court further cannot turn nelson eye towards the fact although the incident is alleged to have taken place in the year 2010, both the witnesses/ victims deposed in the year 2017 i.e. after the lapse of 7 years. As such, certain discrepancies in the testimony of witnesses is bound to come as it cannot be expected from a human being to remember each and evert detail of an incident took place 7 years before.
29. Also, as discussed above, the accused admitted to the fact that he was present at the alleged point of time he was present at the spot and was intoxicated. The accused for the reasons best known to himself chooses not to produce any evidence in support of his averment, not accused has stand witness box in order to prove his defence. Further nothing has been placed on record by the accused to show or prove that complainant or the police officials have motive to falsely implicate the accused in the present case.
30. Another arguments so led by Ld. Counsel for the accused with regard to lapses in the investigation. Admittedly IO should have to made appropriate efforts to trace down the bottle used in commission of offence, same being important piece of evidence, however, non-recovery of the same does cannot be prove fatal to case of prosecution, in light of evidence so led by victims.
31. Further, with regard to submissions that IO did not get conducted medical of the victims, it is pertinent to state that none of the victim complained of any FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 21/24 injury inflicted upon them by the accused. As such, said medical examination of the victim, would not be of any help to the case of prosecution.
32. With regard to arguments that no TIP of the accused person was got conducted, it is pertinent to state in here that, as per the story of the prosecution accused persons were apprehended near the spot and complaint/ victims were present over there only. As such, no fruitful purpose would have been achieved by getting the TIP of the accused conducted.
33. With regards to the argument that other co-accused were never apprehended, prosecution has brought on record that due efforts were being made to arrest the remaining accused, however, they could not be apprehended. Further, merely because remaining co-accused were not apprehended, does not in any manner help the case of the accused under trial in present case.
34. With regard to submissions that as per IO, there is FIR number mentioned in the seizure memo, although, same was prepared prior to registration of FIR it is pertinent to state in here that although same is lapse on the part of investigating agencies, however, same can be only to the extent of questioning the recovery of case property from the accused.
35. At this stage, this court further deems it appropriate to discuss in here the effect of the said faulty investigation. In this regard, Hon'ble Apex Court in Dhanaj Singh @ Shera And Ors vs State of Punjab, 2004(2) SCR 938, observed as follows :
"In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh vs State of M.P. : 1995CriLJ4173 ).FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 22/24
6. In Paras Yadav and Ors. v. State of Bihar: 1999CriLJ1122 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. :
1998CriLJ2515 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again re-iterated in Amar Singh v. Balwinder Singh and Ors., : 2003CriLJ1282 . As noted in Amar Singh's case (supra) it would have been certainly better if the fire arms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on part of the IO cannot affect credibility of the prosecution version."
In light of the facts, law and observation made above, lapses in investigation, if any, cannot be considered to be grave enough so as to affect the case of prosecution.
36. Considering the law, facts and observations made above, since prosecution has proved beyond reasonable doubt that accused Vicky alongwith other co-accused (not arrested) have committed robbery upon the complainant and his friends and further recovery of Rs. 750/- was effected from him, accused Vicky @ Gagan stands convicted for the offence punishable u/s 392/411 IPC.
Announced in the Open Court (ANUBHAV JAIN)
on dated 22nd September, 2023 ACMM/SHD/ KKD COURTS/
DELHI/22.09.2023
FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 23/24
Present judgment consisted of 23 pages and each page bears my signatures.
(ANUBHAV JAIN) ACMM/SHD/ KKD COURTS/ DELHI/22.09.2023 FIR No. 345/2010 PS : Anand Vihar State Vs. Vicky @ Gagan Page No. 24/24