Delhi District Court
Accused Committed Robbery vs State Of Uttar Pradesh And Another on 21 July, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC-248/18
CNR No.DLNE01-0090339-2016
FIR: 334/2017/2017
POLICE STATION: NEW USMANPUR
UNDER SECTIONS: 392/397/411/34 IPC
STATE
V
1. NADEEM @ FAIM
S/O WASIM
R/O HOUSE NO 1133, GALI NO 33
JAFRABAD
DELHI
2. NAVED @ MOHSIN @ AMAN
S/O SALEEM
R/O SARAI DHARI JAMAI MOHALLA
BAWAN CHOKI
BULAND SHAHAR
UP
3. NAVED
S/O DILSHAD
R/O KALYAN AKHARE WALI GALI
BRAHAMPURI ROAD
DELHI
.......... ACCUSED
INSTITUTION: 21.09.2017
ARGUMENT: 21.07.2020
JUDGMENT:21.07.2020 JUDGMENT
1. The Constitution of India guarantees protection of life and liberty to every SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 1/19 citizen and cast a duty on State to maintain law and order in society for securing peace and security to citizens. The State enacts penal laws to prescribe punishment for breach of law and order. It is duty of State to apprehend person who found guilty of committing breach of right of life, liberty or property guaranteed to citizens and put him to fair trial and punish in case he is found guilty. The Criminal Justice System punishes the guilty and protects the innocent. In present case Jaljeet Singh (hereinafter referred to as "the complainant") was employed as supervisor in Surya Construction Company, Garh Mukteshwar, UP. The complainant on 29.05.2017 came to Delhi and boarded DTC bus plying on route no 236 from ISBT, Kashmiri Gate for going to ISBT, Anand Vihar. The bus at about 6.30 pm crossed Yamuna River. The complainant was standing in middle of bus then three boys came from back side and out of which one boy put blade on neck of the complainant while another boy caught hold of the complainant. The third boy removed purse containing Rs.3,000/-, PAN Card and Aadhar Card from pocket of the complainant. The complainant raised alarm and those three boys were apprehended with help of public. HC Patil who was at duty at Police Booth, Shastri Park Red-light also reached there and brought three boys at police booth. The police was called and three boys identified as Nadeem @ Faim, Naved @ Mohsin @ Aman and Naved (hereinafter referred to as "the accused") were handed over to police. On search purse, Aadhar Card and PAN Card were recovered from possession of the accused Naved. Rs. 3,000/- were recovered from possession of the accused Naddem @ Faim and blade used in commission of offence was recovered from the accused Naved @ Mohsin @ Aman.
ASI Yashpal (hereinafter referred to as "the investigating officer") after receipt of DD No.92B along with Ct. Sanjeev reached at Police Booth, Shastri Park Red Light where the complainant produced a purse containing Aadhar Card, PAN Card, Rs.3000/- and a blade before the investigating officer. HC Patil also produced the accused before investigating officer. The investigating officer seized purse, Aadhar Card, PAN Card, Rs.3,000/- and blade and prepared sketch of the blade. The investigating officer recorded statement of the complainant and rukka SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 2/19 was prepared. FIR bearing no 334/2017 under sections 392/397/411/34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") was recorded. The accused were arrested. The investigating officer after completion of investigation charge sheeted the accused for the offences punishable under section 392/397/411/34 IPC. The charge sheet was filed before the court of concerned Metropolitan Magistrate.
2. The copies of charge sheet and annexed documents were supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). The concerned Metropolitan Magistrate vide committal order dated 08.09.2017 committed the case to the Court of Sessions and assigned to this Court for trial in accordance with law.
3. The charge for the offence punishable under section 392/34 IPC was framed against the accused vide order dated 17.10.2017. The accused Naved @ Mohsin @ Aman was also charged for the offence punishable under section 397 IPC. The accused pleaded not guilty and claimed trial.
4. The prosecution examined Jalpreet as PW1, HC Kishan Singh as PW2, Ct. Sanjeev as PW3, HC Patil as PW4, Ct. Laxmi Narayan as PW5 and ASI Yashpal as PW6. PW1 is the complainant. PW2 being duty officer registered FIR bearing no.334/17 under sections 392/397/411/34 IPC. PW3 participated in the investigation along with PW6 ASI Yashpal. PW4 was on duty at Shastri Park Red- light and brought the accused after being apprehended to police booth. PW5 on 29.05.2017 recorded DD No 92 B. PW6 being investigating officer conducted investigation.
The prosecution proved DD 92 B No as Ex. PW5/A, statement of the complainant as PW1A, endorsement on statement of the complainant as Ex.PW6/A, computerized copy of FIR as Ex.PW2/B, endorsement on rukka as Ex.PW2/A, seizure memo of purse, Aadhar Card, PAN Card as Ex.PW1/B, sketch of blade as Ex.PW1/D, seizure memo of blade as Ex.PW1/C, arrest memos of the accused as PW1/E to Ex.PW1/G, personal search memos of the accused as Ex.PW3/A to Ex. PW3/C, site plan as Ex.PW1/H, pointing out memo as SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 3/19 Ex.PW3/D and disclosure statements of the accused as Ex.PW6/B to Ex.PW6/D. The prosecution witnesses also identified Aadhar Card, PAN card and blade as Ex.P1, Ex.P2 and Ex.P3 respectively, photocopies of currency notes and purse as Ex.P4 and Ex.P5. The prosecution evidence was ordered to be closed vide order dated 28.02.2019.
5. The statements of the accused were recorded under section 313 Cr.P.C. vide proceedings dated 18.03.2019 wherein they denied the incriminating evidence and pleaded false implication and innocence.
6. Sh.Masood Ahmed, Additional Public Prosecutor for the State, Sh. Mohd. Arif, Advocate for the accused Naved and Sh. Rishi Chawla, Advocate/LAC for the accused Nadeem @ Faim and Naved @ Mohsin @ Aman heard. The counsel for the accused Naved also submitted written arguments which are perused. Record perused.
7. The Additional Public Prosecutor argued that the prosecution from quality and quantity of evidence proved guilt of the accused beyond reasonable doubt and primarily relied on testimony of PW1 the complainant. The defence counsels argued that the prosecution could not prove its case as per law and in arguments referred testimonies of prosecution witnesses. In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maharashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 4/19 and realistic. In State of U.P V Shankar, AIR 1981 SC 897 it was observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bihar, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suffering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 5/19 available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
8. Section 390 IPC deals with robbery. It provides that in all robbery there is either theft or extortion. Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain, or fear of instant death or instant hurt, or of instant wrongful restraint. Section 392 IPC provides punishment for robbery. Section 397 IPC attracts if at the time of committing robbery or dacoity, the offender uses a deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person. Section 397 IPC does not create any substantive offence and simply prescribes a minimum sentence for the offence of robbery under the aggravating circumstances. It reads as under:-
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
9. The prosecution to prove its case examined PW1 the complainant and PW6 the Investigating Officer. The role of a witness is paramount in the Criminal Justice System of any country. A witness has relevant information about a crime. A Witness is an important constituent of the administration of justice. The witness by giving evidence linking to the charge of the offence performs a sacred duty of assisting the court to discover the truth. A witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence. A witness by giving evidence relating to the commission of an offence performs a sacred duty of assisting the court to discover the truth. The witnesses play an integral role in the dispensation of justice. The Supreme Court in Mahender Chawla V Union Of SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 6/19 India, Writ Petition (Criminal) No. 156 / 2016 decided on 5 December, 2018 it was observed as under:-
Witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The instrument of evidence is the medium through which facts, either disputed or required to be proved, are effectively conveyed to the courts. This evidence in the form of documentary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with conviction of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system.
10. PW-1 the complainant supported the case of the prosecution and deposed that on 29.05.2017 he came to Delhi and boarded a DTC Bus plying on route no 236 from Kashmiri Gate for going to Anand Vihar, ISBT. The complainant was standing in middle of the bus then the accused came from behind and surrounded him. The accused Naved @ Mosin @ Aman put blade Ex.P3 on his neck and the person standing on right side caught hold of his right hand and third person removed black colour purse having Rs. 3,000/- Aadhar Card and PAN Card from back pocket. The complainant raised alarm and the accused were captured by public. The police was informed. The bus was stopped near Red-light, Shastri Park. The police reached there and the accused were handed over to police. The purse Ex.P5 containing Aadhar Card Ex.P1 and PAN Card Ex.P2 Card was recovered from the accused Naved and Rs. 3,000/- were recovered from the accused Nadeem. The blade Ex.P3 was recovered from Naved @ Mosin @ Aman. The statement Ex.PW1/A of the complainant was recorded by the police. PW1 the complainant in cross examination denied suggestions that none of the accused had robbed him or that no such incident happened in the bus or that PW1 the complainant neither traveled in the bus nor purchased any ticket or that altercation took place between PW1 the complainant and the accused at the Shastri Park bus SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 7/19 stand and then PW1 the complainant falsely implicated the accused. The prosecution also examined HC Patil as PW4 who reached at spot from police booth and deposed that on 29.05.2017 at about 07:00 PM he brought the accused and complainant at police booth. On search one black colour purse containing Aadhar Card and PAN Card was recovered from the accused Naved and Rs. 3,000/- were recovered from the accused Nadeem @ Fahim and blade was recovered from the accused Naved @ Mohsin @ Aman. PW4 HC Patil in cross examination deposed that blade Ex.P-3 was seized in his presence at the spot and denied suggestions that he did not bring the accused and complainant to nearby police booth or that the accused did not commit any crime.
11. The prosecution also examined Investigating Officer as PW6 and Ct. Sanjeev as PW3 who on 29.05.17 after receipt of DD No.92B Ex.PW5/A reached at Police Booth, Shastri Park Red-light where PW1 the complainant produced a purse Ex.P5 containing Aadhar Card Ex.P1, PAN Card Ex.P2, blade Ex.P3 and Rs.3000/- Ex.P4 and narrated the incident. PW4 HC Patil also produced the accused. PW6 the Investigating Officer seized case property vide seizure memo Ex.PW1/B and blade Ex.P3 vide seizure memo Ex.PW1/C after preparing its sketch Ex.PW1/D. The accused were arrested after registration of FIR Ex.PW2/B. PW6 the Investigating Officer in cross examination deposed that he inquired about the passenger ticket from PW1 the complainant but same was already misplaced. PW6 the Investigating Officer denied suggestions that the purse did not belong to the complainant or that the purse was planted on the accused or that blade Ex.P3 used by the accused is easily available in the market, houses, toilet or barbour shop or that the accused were made to sign on the blank papers. PW3 Ct. Sanjeev denied suggestions that police had obtained signatures on the blank papers or that no accused was apprehended at the spot. The prosecution from quality and quantity of evidence could establish following facts:-
i. PW1 the complainant on 29.05.2017 boarded a DTC Bus plying on route no 236 and was standing in middle of the bus. The accused came and surrounded PW1 the complainant. The accused Naved @ Mosin @ Aman put SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 8/19 blade Ex.P3 on neck of PW1 the complainant and a black colour purse having Rs. 3,000/-, Aadhar card and PAN Card was removed.
ii. PW1 the complainant raised alarm and the accused were captured by public. PW4 HC Patil also reached at spot from Police Booth and brought the accused to police booth. The police came and the accused were handed over to police. The purse Ex.P5 containing Aadhar Card Ex.P1 and PAN Card and Ex.P2 Card were recovered from the accused Naved and Rs. 3,000/- were recovered from the accused Nadeem. The blade Ex.P3 was recovered from the accused Naved @ Mosin @ Aman. The statement Ex.PW1/A of PW1 the complainant was recorded.
iii. PW6 the Investigating Officer seized case property vide seizure memo Ex.PW1/B and blade Ex.P3 vide seizure memo Ex.PW1/C after preparing sketch Ex.PW1/D. The accused were arrested after registration of FIR Ex.PW2/B. No public person joined in investigation.
12. PW1 the complainant deposed that the accused Naved @ Mohsin @ Aman put blade Ex.P3 on his neck. The defence counsels argued that as per prosecution blade Ex.P3 was only put on neck of the complainant and in strict sense blade Ex.P3 was not used in commission of alleged offence. The Additional Public Prosecutor argued that a deadly weapon i.e. blade Ex.P3 was used in commission of offence. A deadly weapon must have been used at the time of committing robbery. The word 'uses' should be given a wider meaning and should not be confined merely to cutting, stabbing or shooting but also to carrying the weapon for the purpose of overwhelming the victim. Section 34 IPC has no application in the construction of section 397 IPC. The expression 'the offender' does not include persons who participated in the commission of robbery but do not use deadly weapon. In Phool Kumar V Delhi Administration, (1975)3SCR917 the term "offender" under Section 397 IPC was confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. The use of weapon by offender for creating terror in mind of victim is sufficient even no injury has been inflicted. It need not be further shown to have been actually used for cutting, SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 9/19 stabbing or shooting, as the case may be. In Ashfaq V State, AIR 2004 SC 1253, it was held that what is essential to satisfy the words 'uses' for the purpose of Section 397 IPC is the robbery being committed by an offender who was armed with deadly weapon which was within the vision of victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. It was also observed in Vinod Kumar and Others V State, 2007 (2) JCC 1011, that it is not necessary in order to attract Section 397 IPC, the deadly weapon is to be used in the sense that by use of it the person has to be injured. The use of weapon of also there when the weapon is brandished and a person of robbed/looted under the fear of his life caused by weapon. In Dilawar Singh V State of Delhi, (2007) 12 SCC 641, the ingredients of Section 397 IPC and the meaning of the word "offender" for the purpose of Section 397 IPC were discussed by the Supreme Court as under:-
22. The essential ingredients of Section 397 IPC are as fol- lows:
1. Accused committed robbery.
2. While committing robbery or dacoity
(i) accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envis-
ages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular ac- cused who uses the deadly weapon or does any of the acts mentioned in the provision. But other accused are not vicari- ously liable under that Section for acts of co-accused.
In Dig Bahadur @ Rahul @ Vinod V State, Crl. A. 333/2011decided on 1st December, 2017 it was observed by Delhi High Court that since neither any knife was possessed, used or recovered nor any injury was suffered by the complainant at the time of commission of robbery, the appellant could not have SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 10/19 been convicted under section 397 IPC. The appellant was acquitted of the charge under Section 397 IPC. In Murlidhar V State, Crl.A.279/2002 decided on 1st June, 2018 no physical hurt was caused to victims and it was observed by Delhi High Court that recovery of the weapon is not a necessary ingredient for a conviction under Section 397 IPC. In Mumtaz V State, 2018 SCC On Line Del 9534 though recovery of the knife was made on the statement of the appellant, however, no specific attributions were made to the appellant carrying a knife at the day of the incident. It was held that no culpability could be fixed against the appellant under Section 397, for which the use of a knife is a sine qua non. Accordingly, while upholding his conviction under Section 392 IPC along with Section 27 of Arms Act, the High Court set aside the appellant's conviction and sentence under Section 397 IPC. The 'Use' of the same to threaten is sufficient. The accused used the knife which was within the vision of victims who were terrorized and threatened due to the use of the same and made to part with valuables.
13. The testimony of PW1 the complainant reflects and proved beyond any doubt that the accused Naved @ Mohsin @ Aman put a blade Ex.P3 on his neck and was identified by PW1 the complainant and PW6 Investigating Officer ASI Yash- pal. The accused Naved @ Mohsin @ Aman was having a weapon i.e. blade Ex.P3 at the time of committing offence which he used and put on neck of PW1 the com- plainant PW3. Weapon i.e. blade Ex.P3 was used to threaten PW1 the complainant and was within his vision. PW1 the complainant although did not receive any in- jury but was terrorized and threatened by the accused Naved @ Mohsin @ Aman by the use of weapon i.e. blade Ex.P3 to part with his belongings. The prosecution proved that the accused Naved @ Mohsin @ Aman used weapon of offence Ex.P3 at the time of committing robbery.
14. The defence counsels argued that blade Ex.P3 stated to be used in commission of offence is not a deadly weapon and is easily available in market. The Additional Public Prosecutor argued that blade Ex.P3 was put on neck of PW1 the complainant which might have caused fatal injury. The blade Ex.P3 was a sharp SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 11/19 edged weapon and is capable of causing death so blade Ex.P3 is a deadly weapon. In criminal law, the term "deadly weapon" refers to a firearm, or any other object that is used or intended to be used in such a way that it could cause death or serious injury to another human being. What constitutes a deadly weapon was considered by the superior courts. The Delhi High Court in Balak Ram V State, 1983 DLT 142 in context of a knife observed that what would make a knife deadly is its design and method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved and prosecution should prove that the knife used the accused was a deadly weapon. In Mohan Singh V State, 1987(13) DRJ 176, it was held that in order to bring home a charge under Section 397 the prosecution is duty bound to produce convincing evidence that the knife used by the accused was a deadly weapon. It is, therefore, a question of fact to be proved and prosecution should prove that the knife used by the accused was a deadly weapon. Similar observation is made in Kalu @ Saleem V State, Crl. A. No. 1431/2011 decided on 14.12.2012 by the Delhi High Court. The Delhi High Court in Sukhvinder Singh V State (Govt. of NCT of Delhi), Crl.A. 1358/2012 decided on 01st April, 2014 observed that vegetable knife is not a deadly weapon. The Delhi High Court in Roshan Lal V State of Delhi, Crl.A.No.448/2000 decided on 15th March, 2017 observed as under:-
No doubt, to convict the accused the evidence of the injured witness is sufficient but for convicting the accused for the of- fence under Section 397 of IPC, the prosecution must pro- duce convincing evidence that the knife used by the accused was a deadly weapon. It is therefore a question of fact to be proved by the prosecution that the knife used by the accused was a deadly weapon.
15. The Delhi High Court in Deepak V State (GNCT of Delhi), Crl.A.406/2014 decided on 06th February, 2017 considered whether surgical blade stated to be used in commission of offence was a deadly weapon. It was observed that nothing has emerged in the evidence of the prosecution witnesses that the surgical blade al-
legedly used in the incident was a 'deadly' weapon. The High Court referred Sanjay V State of NCT Delhi, Crl.A.406 and 591/2006 decided on 21.12.2009 SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 12/19 wherein it was held that there is no evidence or opinion on record to show that the blade recovered from the appellant was such, as would ordinarily result in death by its use. What would make a blade deadly is its size, design and shape etc. and a weapon cannot be said to be a deadly weapon merely because the witnesses de- scribed it as a surgical blade. In Deepak it was observed as under:-
In order to bring home a charge under Section 397 IPC, the prosecution must produce convincing evidence that the weapon used for committing crime was 'deadly' weapon. Since no convincing evidence has come on record to show that the surgical blade used in the crime was a 'deadly' weapon, its benefit must go to A-1 and his conviction and sentence under Section 397 IPC cannot be sustained and are set aside.
It was observed in Gulfam @ Zahoor V State, Crl. Appeal 391/16 decided on 03.02.2020 by the High Court of Delhi that a paper cutter is also a species of knife as it has a handle. The blade is capable of delivering a fatal injury. It was further observed that the paper cutter was placed on the neck of the complainant and a deep cut on the neck by said instrument could be fatal.
16. PW1 the complainant identified the accused Naved @ Mohsin @ Aman who put blade identified as Ex.P3 on his neck. PW4 HC Patil deposed that on 29.05.2017 he brought the accused and complainant at police booth after incident and on search one blade identified as Ex.P3 was recovered from the possession of the accused Naved @ Mohsin @ Aman. The sketch Ex. PW1/D of blade was also prepared and seized vide seizure memo Ex. PW1/D. PW6 the investigating officer ASI Yashpal also deposed that he prepared sketch Ex.PW1/D of the blade Ex.P3 and seized vide seizure memo Ex.PW1/C. The sketch Ex.PW1/D is also perused.
The perusal of sketch Ex.PW1/D reflects that blade Ex.P3 was having sharp edges and commonly used and available in house, barber shops etc. The accused Naved @ Mohsin @ Aman put blade Ex.P3 on the neck of PW1 the complainant and a deep cut on neck might be capable of causing fatal injury to PW1 the complainant. The weapon used in commission of offence must be a deadly weapon to attract section 397 IPC. The blade Ex.P3 cannot be termed as a deadly weapon. The blade SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 13/19 Ex.P3 is not a deadly weapon.
17. The defence counsels argued that PW6 the Investigating Officer ASI Yashpal did not include any public person in the investigation despite availability and the accused cannot be convicted on basis of testimony of PW1 the complainant. The Additional Public Prosecutor argued that testimony of PW1 the complainant is sufficient to prove guilt of the accused.
The evidence of the complainant who is the victim of the offence has to be accorded great weightage and a special status in law. The deposition of the complainant should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. The convincing evidence is required to discredit a complainant who is the victim of the crime. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It was observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455 observed as under:-
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
18. No public person was included in the investigation as reflected from cross examination of prosecution witnesses. PW1 the complainant in cross examination SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 14/19 deposed that none of the passenger was made witness by the police despite the accused were captured by the public. The investigating officer did not question any public person in presence of PW1 the complainant. PW4 HC Patil in cross examination deposed that at spot some public persons were present. PW6 Investigating Officer in cross examination deposed that the residential complex, petrol pump and residential houses were situated away from the spot but traffic police was present at the red light but he did not ask traffic official to join the investigation. The spot was a crowded place and he asked one or two public persons to join investigation but none agreed. PW6 the Investigating Officer denied suggestion that the accused were not nabbed by the public persons and due to this reason no public person joined in the entire investigation PW3 Ct. Sanjeev in cross examination deposed that no public witness was examined in his presence at the spot. It is apparent from evidence led by the prosecution that PW6 the Investigating Officer did not include any public person in investigation despite many public persons were available at spot. The prosecution case as such is primarily based on testimony of PW1 the complainant as no public person was included in investigation.
The conviction can be based upon the sole testimony of the complainant who is the victim of crime. The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. Even if there is one eye witness and his testimony is up to the mark, the conviction can be based upon the same. In Namdeo V State of Maharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-
"In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 15/19 rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect".
The testimony of PW1 the complainant is trustworthy, reliable and is not suffering from any infirmity. The testimony of the complainant PW3 can be relied upon. The prosecution witnesses are cross-examined at length but there is nothing in their respective cross-examination which can shake credibility and reliability of testimony of PW1 the complainant. The testimonies of witnesses examined by the prosecution are cogent, consistent and are corroborating each other in material particulars. If the investigating Officer did not or could not include any public officer in investigation it is not fatal to case of the prosecution. The testimony of PW1 the complainant is sufficient to prove guilt of the accused.
19. The defence counsels argued that there are major contradictions in respective testimonies of prosecution witnesses and by referring these contradictions in respective testimonies of prosecution witnesses argued that these contradictions are raising doubts as to case of prosecution. The defence counsels stated that PW1 the complainant in complaint Ex.PW1/A mentioned that he conducted search of the accused in presence of police while in deposition PW1 the complainant deposed that police conducted search of the accused and PW3 Ct. Sanjeev and PW6 Investigating Officer deposed that PW4 HC Patil and PW1 the complainant handed over money, purse and blade to them. PW1 the complainant deposed that PW6 Investigating Officer never asked bus ticket from him but PW6 Investigating Officer deposed that he asked bus ticket from PW1 the complainant but he informed that bus ticket was misplaced. PW1 the complainant in cross SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 16/19 examination deposed that police did not examine any public witness in his presence while PW6 Investigating Officer deposed that he asked two public persons to join investigating officer.
20. Mere marginal variations in the statements of witnesses cannot be dubbed as improvements. Every contradiction discrepancy or improvement is not fatal for prosecution. It is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case. The Supreme Court in Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh and another, (2015) 7 SCC 48held as under:-
When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
The Supreme Court in Bhagwan Jagannath Markad and oth- ers V State of Maharashtra, (2016) 10 SCC 537 observed as under:-
While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.
Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
The discrepancies as pointed out by the defence counsels are minor and insignificant and do not have any fatal effect on the prosecution case.
21. The defence counsels stated that there are major lacunas in investigation conducted by PW6 Investigating Officer and argued that it was unlikely that three SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 17/19 persons without using a weapon committed robbery in a crowded bus and were not beaten by public as PW6 Investigating Officer in cross examination admitted that none of the accused received injury. The recovery of purse, blade and other articles is planted on the accused. DTC bus stated to be plying on route no 236 not used to pass through Shastri Park. The case property was not produced before the court. It is not proved that how and when the accused divided looted articles. PW6 Investigating Officer in entire chain of investigation did not mention number of currency notes of total denomination of Rs.3,000/- in any document. The prosecution could not prove place of occurrence as PW3 Ct. Sanjeev deposed that place of occurrence was situated near Iron Bridge (Loha Pul) but in fact there is no Iron Bridge near alleged place of incident. Site plan Ex. PW stated to be prepared at the instance of PW1 the complainant is not legally proved and is incorrect as per factual position of the place of alleged incident. PW1 the complainant, PW3 Ct. Sanjeev and PW6 Investigating Officer never visited at place of alleged incident.
22. There is no specific provision in Cr.P.C. to deal with irregularities committed by investigation officer (IO) in the course of investigation. The error, illegality or defect in investigation does not have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused (Union of India V Prakash P. Hinduja, AIR 2003 SC 2612). If the prosecution case is established by the evidence adduced, any failure or omission on the part of the investigating officer cannot render the case of the prosecution doubtful (Sambu Das V State of Assam, AIR 2010 SC 3300). The accused cannot be acquitted on the sole ground of defective investigation.
23. The argument advanced by the defence counsels that the accused did not receive any injury when they were apprehended by public in bus is based on conjecture and surmise. The prosecution witnesses deposed about recovery of purse Ex.P5, blade Ex.P3, and other documents Ex.P1 and Ex.P2 and there is no reason to disbelieve testimonies of prosecution witnesses regarding recovery of case properties. The route of bus and division of robbed articles are hardly having any impact on prosecution case as these facts are not in issue. The case property SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 18/19 was produced before the court and identity of case property was not disputed by the accused. If currency numbers are not mention by the PW6 Investigating Officer in any document prepared during investigation then it may be mere irregularity and not illegality. The prosecution also proved place of occurrence. The above mentions arguments advanced by defence counsels are without any basis.
24. The accused in their respective statements under section 313 Cr.P.C pleaded their innocence and false implication. The defence in cross examination of PW1 the complainant took defence that the accused were falsely implicated due to alter- cation between PW1 the complainant and the accused at bus stand. The defence as taken by the accused is sham, without any basis and not consistent with evidence. The plea/defence of the accused that they were falsely implicated does not inspire any confidence.
25. The prosecution from the quality and quantity of the evidence could prove beyond reasonable doubt that the accused Nadeem @ Faim, Naved @ Mohsin @ Aman and Naved on 29.05.2017 in DTC bus plying on route no 236 in furtherance of their common intention committed robbery of purse Ex.P5 containing Rs. 3,000/- Ex.P4, Aadhar Card and PAN Card Ex.P1 and Ex.P2 from the PW1 the complainant Jaljeet Singh. The accused Naved @ Mohsin @ Aman during the commission of offence used blade Ex.P3 which was not a deadly weapon. Accordingly, the accused Nadeem @ Faim, Naved @ Mohsin @ Aman and Naved are convicted for offence punishable under Section 392/34 IPC. The accused Naved @ Mohsin @ Aman is acquitted for the offence punishable under section 397 IPC. Sudhir Digitally signed by Sudhir Kumar Jain Location:
ANNOUNCED IN THE OPEN Kumar Karkardooma
courts, Delhi
COURT ON 21st JULY, 2020
Jain Date: 2020.07.21
16:14:02 +0530
(DR. SUDHIR KUMAR JAIN)
DISTRICT AND SESSIONS
JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC 261/17 FIR NO 384/17 STATE V NADEEM @ FAIM & OTHERS 19/19