Delhi District Court
State ( Govt. Of Nct Of Delhi) vs Sonu @ Suraj on 15 April, 2017
1
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
In Crl. Appeal No. 204728/2016
State ( Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi.
...... Appellant
Versus
1. Sonu @ Suraj
S/o Rajender Singh
R/o H. No. 81, Kalu Mohallah,
East of Kailash, New Delhi.
2. Amit
S/o Kirori Mal,
R/o H. No. 120, Main Market,
Garhi, East of Kailash,
New Delhi. ..... Respondents
ORDER :
1. Challenge in appeal is the judgment of Ld. MM10, South East District dated 22.08.2016 in the case FIR No. 135/15 registered at the police station Greater KailashI, New Delhi whereby the respondents No. 1 and 2, namely, Sonu @ Suraj and Amit, have been acquitted of the offences punishable u/s 394/411/34 IPC.
2. This judgment is assailed on the ground that Ld MM did not appreciate that PW1 has correctly identified both the respondents who were apprehended from the spot and the recovery of robbed articles were effected instantly from them.
3. I have heard the arguments advanced by Ld. Addl. PP for the CA No. 204728/16 Page No. 1/7 2 State/appellant and Ld. LAC Sh. Javed Hussain for the respondents Sonu @ Suraj and Ld. Counsel Sh. Vinod Yadav for the respondent Amit.
4. The facts relevant for the disposal of the appeal are that on 23.03.2015, the complainant Hari was returning home from his work place at H17 Kailash Colony on foot. When he reached near Arya Samaj Mandir, at about 7.00 p.m, both the respondents came from the front side.
One of them caught hold of his collar. Both of them started beating him. They snatched his mobile phone make Nokia and removed Rs.1,000/ from the pocket of his shirt. He raised the alarm 'ChorChor'. Two police officials who were on patrolling i.e PW5 and PW6 apprehended both the respondents. Information was sent at the police station Greater KailashI from where PW7 came. From the search of both the respondents, mobile phone and cash were recovered in the presence of the complainant. Both the respondents were arrested. The complainant was got medically examined. After the investigation, both the respondents were challaned.
5. In this case, the prosecution examined the complainant as PW1, Record Clerk, AIIMS as PW3, Duty Officer as PW4, both the constables as PW5 and PW6 and IO as PW7. Ld MM vide impugned judgment held that PW1 cannot be treated as reliable witness as he has contradicted the story of prosecution. During his examination he did not support the version of his complaint. He resiled from his statement. He was crossexamined and reexamined on several points by the prosecution. No public person was joined to witness the recovery. It was held that the guilt of the respondents has not been proved beyond reasonable doubt and they are liable to be acquitted on benefit of doubt.
6. Perusal of the testimony of PW1/complainant would show that on 23.03.2015 when he reached near Arya Samaj Mandir at about 7.00 CA No. 204728/16 Page No. 2/7 3 p.m, both the respondents whom he identified correctly came from front. One of them caught hold of his collar. Other was holding a stone. Both of them beat him and snatched his mobile phone make Nokia and removed Rs.1,000/ from the pocket of his shirt. His testimony would further show that two policemen came there and apprehended both of them. He proved his complaint Ex. PW 1/A and the documents including the recovery memo Ex. PW 1/H. He has stated that both the respondents were arrested in his presence and he signed their arrest memos. He was crossexamined by Ld. Addl. PP where he admitted that when the respondents snatched his mobile phone and removed the currency notes, he had raised alarm and thereafter the police officials apprehended them. He also admitted that the respondent Sonu had asked him to hand over what he was having and when he refused, the other respondent Amit caught hold of him and Sonu snatched his mobile phone and currency notes. He identified the case property Ex. P1 and Ex. P2.
7. Although in his crossexamination, he stated that since it was dark, he cannot identify the accused persons/respondents but it is relevant to mention that when he was examined on 17.07.2015, he correctly identified the accused persons/respondents. It was during his cross examination vide dated 03.11.2015, he did not identify the accused persons/respondents. That being the position, the chances of winning over PW1 by the accused persons/respondents cannot be ruled out. Testimonies of PW5 and PW6 who reached the spot on hearing the noise 'chorchor', would show that they had apprehended the accused persons/respondents on the spot and informed the local police station. PW7 has stated that from the search of accused/respondent Sonu, Nokia phone Ex. P1 and cash Rs.1,000/ Ex. P2 were recovered. All the aforesaid witnesses were cross CA No. 204728/16 Page No. 3/7 4 examined at length but nothing material came to doubt on their veracity.
8. In the case of State of UP Vs. Chetram, AIR 1989 SC 1543 it was held that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. In the case of Sayed Akbar Vs. State of Karnataka, AIR 1979 SC 1843 it was held that the evidence of the prosecution witness cannot be rejected wholesale merely on the ground that prosecution had dubbed him 'hostile' and had cross examined him. In Rabinder Kumar Dey Vs. State of Orissa, AIR 1977 SC 170, it was held that mere fact that witness is declared hostile by the party calling him and allowed to be cross examined does not make him unreliable evidence so as to exclude his evidence from consideration all together. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. In the case of Bhe Ram Vs. State of Haryana, AIR 1980 SC 957, the trial court had rejected whole of the testimony of the witness on the ground that one of his statements was proved to be false. The Supreme Court held that the evidence was wrongly rejected. The principles of falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds. It was held in Khujji @ Surendra Tiwari vs The State Of Madhya Pradesh, 1991 AIR 1853 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In Alma Vs. State of MP, AIR 1991 SC 1519, it was held that CA No. 204728/16 Page No. 4/7 5 reliance could be placed upon the hostile witness in reference to the accused about whom his testimony was truthful and natural. The testimony of a hostile witness requires closer scrutiny because he is contradicting himself and that portion of his statement which is consistent with the prosecution or defence may be accepted.
9. In this country, it is rare to come across the testimony of a witness which does not have fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence in toto State of UP vs. Shanker, AIR 1981 SC 897.
10. In the case of Krishna Vs. State of Karnatka, 2010 Crl. L. J. 1515, the witness had fully supported the prosecution case in his examination in chief as to any material and relevant fact but turned hostile to the prosecution in his cross examination made on behalf of the accused on a later date and stated contrary to his evidence in his examination in chief as to the said fact. It was held that evidence of such hostile witness in his examination in chief has to be accepted as true if it is not shown that what he stated in his examination in chief was not stated by him at the earliest opportunity in his statement recorded under section 161 CrPC by the investigating officer.
11. The facts of the present case are similar to the case, supra as in the present case, the complainant/PW1 has fully supported the prosecution case in his examination in chief but turned hostile during further examination/ cross examination on a later date and has stated CA No. 204728/16 Page No. 5/7 6 contrary to his evidence in his examination in chief as to the identity of accused persons/respondents. Hence, his evidence in his examination in chief is to be accepted as true.
12. It is true that public persons had gathered on the spot and the place of incident was a public place and no public persons were joined but it would not itself make the prosecution case suspect. Joining public witness is a rule of caution and not the rule of law. If the testimony of police officials is consistent and cogent, it can become basis of the conviction of the accused. In this case, recovery from the possession of the accused persons/respondents is proved beyond reasonable doubt. Both the accused persons/respondents were together when they wrongfully restrained the complainant/PW1. They in furtherance of common intention caught the collar of PW1 and snatched his mobile phone Ex. P1 and removed cash of Rs.1,000/ Ex. P2 from the pocket of his shirt. Both the accused persons/respondents were apprehended on the spot. There was no reason for the complainant or the police party to falsely implicate the accused persons/respondents. MLC Ex. PW 3/B which is proved by PW3 shows that PW1 sustained small cut over upper lip in the incident.
13. I am of the view that prosecution has proved that both the accused persons in furtherance of common intention committed the robbery of mobile phone and cash belonging to the complainant/PW1 and in that process, they voluntarily caused injuries on the person of the complainant/PW1. I hold both the accused persons/respondents No. 1 and 2 guilty of the offence punishable u/s 394/34 IPC and convict them thereunder and set aside the impugned judgment.
14. I have heard the Ld. Counsel for the respondents on the point of sentence. Respondent No. 1 remained in custody for more than one year CA No. 204728/16 Page No. 6/7 7 during trial. Respondent No. 2 remained in custody for about eight months. They are the young men and have family to support.
15. Looking into the facts and circumstances of the case, the age and antecedents of the respondents, I sentence both the respondents to undergo Rigorous Imprisonment for a period of nine (09) months and to pay fine of Rs.5,000/ each in default thereof to undergo simple imprisonment for a period of two months. They are given the benefit of Section 428 CrPC Out of the fine amount if realized, Rs.5,000/ be paid to the complainant after the expiry of period of appeal or revision.
16. Case property be returned to the complainant after the expiry of period of appeal or revision.
17. Appeal file be consigned to the Record Room. Trial Court Record be sent back with the copy of this order.
18. Attested copy of judgment/order, copy of charge, evidence, statement under section 313 CrPC, exhibited documents be given to the convicts, free of cost.
Announced in open court ( SANJIV JAIN)
on 15.04.2017. Addl. Sessions Judge(Spl, FTC)
South East District, New Delhi
CA No. 204728/16 Page No. 7/7