Delhi District Court
State vs . Surender Singh @ Pappu on 5 July, 2019
IN THE COURT OF SHRI SANJAY SHARMAI :
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
SC No. 834/16
State Vs. Surender Singh @ Pappu
FIR No. 1040/2015
P.S. Vivek Vihar
u/s 394/397/411/34 IPC
State
Versus
Surender Singh @ Pappu S/o Sh. Niranjan Singh
R/o H.No. 28/102, Kasturba Nagar
Shahdara, Delhi.
Date of institution : 05.03.2016
Date of reserving judgment : 01.07.2019
Date of judgment : 04.07.2019
JUDGMENT:
Complainant Vikas Malik made a complaint to PS Vivek Vihar on 23.10.2015 on the basis of which the present case was registered. In his complaint, he alleged that on 22.10.15 at about 09.45 PM, when he alongwith his children was present at Main Road, near Kasturba Nagar red light after seeing Ravan Dahan, one person who was having a sword in his hand, was rebuking and assaulting the passersby and he also slapped the rickshaw puller in which children of the complainant were sitting. When the complainant objected to it, the accused hit him on his right hand with the sword and when the complainant slapped the accused to save himself, 34 associates of accused came there and started slapping SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 1 of 11 and giving fist blows to him and also caused injuries to him on his right cheek with a blade. They also snatched his purse containing Rs. 5,000/, ATM Card of PNB Bank, PAN Card, Driving License and Voter ID Card. Thereafter, the complainant got himself treated at Dr. Hedgrewar Hospital from where information was made to the local police and the case was registered.
2. During investigation, on 23.10.15 at about 08.00 pm, complainant came at the PS and informed that he had seen the accused standing in front of a house from where the accused was arrested and he disclosed his name as Surender Singh @ Pappu. He confessed the crime and got the articles recovered. Accordingly, chargesheet was filed against accused for the offences punishable u/s 394/397/411/34 IPC.
3. Copies were supplied to accused Surender Singh @ Pappu as required under Section 207 Cr. PC and case was committed to the Sessions Court. After hearing arguments, a charge for the offences punishable under Section 394/397/34 IPC was framed against the accused vide order dt. 07.04.16.
4. At the trial, the prosecution examined 10 witnesses in all.
PW1 was the complainant who deposed about the incident and proved his statement as Ex.PW1/A. He also proved the arrest memo of the accused as Ex. PW1/B, his personal search memo as Ex. PW1/C and his disclosure statement as Ex. PW1/D. He further proved the seizure memo of his purse containing voter I Card, ATM Card, driving license and PAN Card etc. as Ex. PW1/E and further proved the site plan as Ex. PW1/F. PW2 Smt. Renu Malik was the wife of the complainant and she SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 2 of 11 too deposed about the incident.
PW3 HC Rajpal was the MHC(M) who proved the relevant entries in register no. 19 as Ex. PW3/A. PW4 Ct. Rahul Kumar had joined the investigation with the IO and was present when the accused was arrested and recoveries were effected and deposed about the same.
PW5 Dr. Shani Kumar proved the MLC of the complainant as Ex. PW5/A. PW6 ASI Jai Ram was the Duty Officer who recorded the FIR and proved it as Ex. PW6/A as also the endorsement on the rukka as Ex. PW6/B. PW7 Ct. Surender Kumar was the DD Writer on the day of incident and had recorded the DD about the incident which he proved as Ex. PW7/A and the copy of original roznamcha as Ex. PW7/A1.
PW8 ASI Bhagwat Singh was the Duty Const. At Dr Hedgrewar hospital where the complainant was admitted and he had informed this fact at the PS. PW9 ASI Kavinder Singh had reached the hospital on receiving information but the injured was not found who subsequently reached the PS and gave his complaint Ex. PW1/A on which he made his endorsement Ex. PW9/A. PW10 SI Kulbir Rana was the main IO of the case who deposed about the investigation conducted by him. He also proved the site plan of the place of recovery of robbed articles as Ex PW10/A
5. Statement of the accused was recorded u/s 313 Cr.P.C. and SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 3 of 11 the entire incriminating evidence was put to him which he denied and pleaded innocence.
6. The accused also examined a witness in his defence namely DW1 Sh. Balkar Singh who deposed that on 22.10.15 at about 09.45 PM, the accused was lying on road in unconscious condition and he had taken him to his house. He also deposed that the accused was not having any injury mark on his body though he appeared to have been beaten. He further deposed that the accused was getting treatment from IHBAS and that some persons were beating the accused while claiming themselves as police officials. On the next day, he went to the house of the accused when he was informed that he was still unconscious and thereafter, the police officials took him from his house.
All the witnesses were duly cross examined.
7. I have heard Sh. Mukul Kumar Ld. Addl. PP for the State and Sh. AK Bhatt Ld. Counsel for the accused.
8. It was submitted by the Ld. Addl. PP that both PW1 and PW2 have duly corroborated the incident and PW5 has proved the injuries on the person of PW1. It was also submitted that the recoveries have been effected at the behest of the accused which have been duly proved and thus, prayed for the conviction of the accused.
9. On the other hand, Ld. Counsel for the accused submitted that the accused is innocent and has been falsely implicated. It was submitted that the recoveries have been planted. Ld Counsel further submitted that the accused has already been taking treatment from IHBAS as deposed by DW1 and as such there is no question of his being involved in the alleged incident. He further pointed out towards the SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 4 of 11 contradictions appearing in the testimony of the witnesses.
10. The accused has been charged with the offence of robbery. This offence has been very well explained in State of Maharastra Vs. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom.), wherein it has been held as under :
"In order that theft may constitute robbery, prosecution has to establish -
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or
(b) or (c) coexist with (d) and (e) or there is a nexus between any of them and (d), (e) would amount to robbery".
11. The version of the complainant/PW1 is not palpable. He deposed that the incident took place on 22.10.2015 at about 9.4510.00 pm at Main Road, Kasturba Nagar, on the occasion of Ravandahan (Dusshera). At that time, indisputably, there is a huge rush and this fact SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 5 of 11 was admitted by PW1 in his crossexamination. In such an atmosphere, robbery, as alleged, is not possible. No public witness has been cited by the prosecution to corroborate the version of the complainant though several of them would have been available.
12. It was deposed by PW1 that the accused was having a sword in his hand and was rebuking the passers by and was assaulting them. In the crossexamination, he deposed that the accused had assaulted and misbehaved with 23 persons prior to committing the incident with him but he never deposed that the accused had robbed anyone else apart from him at that time. It was also not deposed by him that the accused was demanding money or other belongings from other persons. This is not a natural conduct of a robber or a thief. The disclosure statement of the accused, assumes importance in this regard wherein he stated that he had consumed liquor and under intoxication he had gone behind the stage where the act of Ramlila was being performed from where he picked up a sword and came to the Main Road, Kasturba Nagar, where he started beating public at the point of the sword. Though the disclosure statement is not admissible but in the present case it explains the state of mind of the accused that he had no mensrea for committing robbery but was indiscriminately assaulting people.
13. It was also deposed by PW1 that the accused had firstly slapped the rickshaw puller who was carrying his wife and children and when he objected, the accused assaulted him with the sword on his right hand. Till that time, neither the accused demanded the belongings from the witness nor tried to take them out from his possession. It was further deposed by PW1 that in the meanwhile, 34 associates of the accused SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 6 of 11 came at the spot. The identity of those persons remained unknown till the conclusion of the investigation despite the accused having been taken on police remand. He deposed that out of those persons, someone caused injuries on his right cheek with a blade. He never deposed that those persons tried to extort money or steal his belonging on the point of any weapon. Thus, no robbery was committed by the alleged associates of the accused.
14. It was further deposed by PW1 that after he was injured by the alleged associates of the accused, the accused snatched his purse containing cash and documents. He never deposed that the said snatching was done by the accused at the point of the sword or by putting him or his wife and children under the fear of hurt or death. The conduct of the complainant/PW1 after the incident was also not natural since he never called the PCR nor approached the PS but went to his house and from there to Dr. Hedgrewar Hospital. The information to the local police was given only by the Duty Constable at the hospital, namely PW8 who in his deposition deposed that the complainant got injured in a quarrel. It means that there was no element of robbery by that time. It also means that till that time, the complainant/PW1 had not disclosed the act of robbery by the accused to the Duty Constable. Thus, the alleged act of the accused are not covered within the definition of robbery as explained in the judgment of Joseph Mingle Koli's case (supra).
15. It was further deposed by PW1 that on the next day of incident, i.e. 23.10.2015, he saw the accused standing at the shop of Raju Meat wala. It is again an unnatural conduct of a robber who would not make himself available to public view in the nearby vicinity on the next SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 7 of 11 day of committing an offence. The complainant/PW1 made inquiries about the accused on his own and came to know about his name, address and occupation. He never disclosed the source from where he got to know the name and address of the accused or that he was a TSR driver. He went to the PS, apprised the IO about the same and got the accused arrested from his house. This again makes the story of the complainant unnatural and impalpable. Infact, the complainant himself made the entire investigation about the accused.
16. In his examinationinchief, PW1 deposed about the recovery of his purse from a garbage house, containing his Voter ID Card, ATM card etc. but in his crossexamination, he deposed that he was not present with the police officials when his purse was recovered. Thus, he contradicted his own version regarding the recovery of purse at the pointing out of the accused in his presence. It is also to be noted that PW1 in his crossexamination deposed that on 23.10.2015, i.e. on the next day of the incident, he had gone to Jhilmil Colony to withdraw money from ATM with his brother. If his ATM Card had already been robbed, then how and why he went to withdraw money from the ATM which shows that the ATM Card was with him and was never robbed. He never clarified if he was having any other ATM Card nor that he got his ATM Card blocked after the robbery. Thus, he himself belied his version.
17. In his further crossexamination, he deposed that the accused was not arrested in his presence and that his signatures on the arrest memo of the accused were obtained in the PS. He also deposed that his signatures were obtained on his statement and some documents identified by him but had not gone through the contents of those documents before SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 8 of 11 signing them. It shows that none of the documents proved by him were prepared in the manner as deposed by him. It also shows that neither the accused was arrested as deposed by him nor any recovery was effected from him for the sole reason that no robbery had ever taken place and therefore, there is every possibility of the recoveries having been planted upon the accused.
18. The only other witness of the incident examined by the prosecution was PW2 who was none other than the wife of PW1. In her examinationinchief, though she corroborated the acts of the accused but deposed that 34 alleged associates of the accused, who reached the spot, gave beatings to her husband with fists and leg blows, contrary to the version of the complainant/PW1 that someone from them caused injury on his right cheek with a blade. In her crossexamination , she too admitted that there was crowd on the road. In her further cross examination, she deposed that there were 810 companions of the accused and that she had not seen who had taken out the purse of her husband during the incident. Thus, she herself contradicted her previous statement. In such circumstances, it is difficult to sustain the charge of robbery against the accused or the recovery of the alleged stolen articles of the complainant at the pointing out of the accused.
19. The other two witnesses of recovery are PW4 Ct. Rahul Kumar and the PW10/IO but in the light of the depositions of PW1 and PW2, as aforesaid, it is unsafe to rely upon the testimony of these two witnesses and to return a finding of guilt of the accused in respect of the charges of robbery.
20. The complainant had also sustained injuries as deposed by SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 9 of 11 him. The said injuries were proved by PW5 as superficial incised wound over right back of ear and right cheek of size about 2 cm and 10 cm vertical. Another injury was observed as incised wound over right arm of size 1.5 cm X 0.5 cm. The doctor also observed burn over the right calf of the complainant of size 5 cm X 5 cm. The injuries have been opined to be simple. Injury No. 3, i.e. burn injury, remained unexplained in the entire testimony of PW1. However, the other injuries corroborate with the version of PW1 when he deposed that the accused assaulted him with the sword. It is noteworthy that there was no crossexamination of PW5 and the accused has failed to explain the injury on the person of the complainant. No suggestion was ever given to PW1 and PW5 if the said injuries were self inflicted or were caused in any other manner. It is a settled law that if there is no crossexamination of a fact deposed by the witness, the same is deemed to have been admitted.
21. It was argued by Ld. Counsel for the accused that the weapon of offence, i.e. the sword, was never recovered during investigation. However, nonrecovery of the weapon of offence is not of much importance when the injury has been proved through ocular evidence.
22. In Mohinder Vs. State 2010 VII AD (Delhi) 645, it was held that :
"Nonrecovery of weapon of offence during investigation is not such an important factor to neutralize the direct evidence of complicity of the accused in the murder of the deceased. This judgment was followed in Chunni Lal Vs. State of Delhi (Crl. Appeal No. 262/2003 dt. 08.8.2013.)".
23. The accused examined DW1 who deposed that he had found SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 10 of 11 the accused in an unconscious state on 22.10.2015 at about 9.45 pm and had taken him to his house but till the completion of the investigation he never informed the police about it. He also deposed that the accused was getting treatment from IHBAS but no document in support of this fact was placed on record either by this witness or by the accused. Hence, the testimony of the sole defence witness is not trustworthy.
24. It is, thus, clear that the accused though inflicted injury upon the complainant with the sword resulting into incised wound, no robbery, as alleged, was ever committed by him. Accordingly, accused Surender Singh is acquitted of the charges under Section 394/397 IPC, but is held guilty for the offence punishable under Section 324 IPC and is convicted accordingly for the said offence. Digitally signed by SANJAY SANJAY SHARMA ANNOUNCED IN OPEN COURT SHARMA Location: Delhi Date: 2019.07.04 ON 04th day of July 2019 16:56:57 +0530 (SANJAY SHARMAI) Addl. Sessions Judge05 (Shahdara) Karkardooma Courts, Delhi SC No. 834/2016 FIR No.1040/2015 PS Vivek Vihar State Vs. Surender Singh @ Pappu 11 of 11