Delhi District Court
State vs 1. Devender on 16 March, 2020
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM: ADDL. SESSIONS JUDGE-03:
EAST DISTRICT: KARKARDOOMA COURTS: DELHI.
Sessions Case No.: 551/2019
State Versus 1. Devender
S/o Sh. Gopi Chand
R/o H. No. C-2/26,
Saboli Extn., Delhi.
2. Rajvinder Singh
S/o Sh. Avtar Singh
R/o H. No. 1/9234,
Gali No. 6, West Rohtas Nagar,
Delhi - 32.
FIR No. : 921/2015
Under Section : 109/395/34 IPC
Police Station : Krishna Nagar
Chargesheet Filed On : 11.12.2018
(qua accused Devender)
: 22.04.2019
(qua accused Rajvinder)
Chargesheet Allocated On : 07.02.2019
(qua accused Devender)
: 25.04.2019
(qua accused Rajvinder)
Judgment Reserved On : 13.03.2020
Judgment Announced On : 16.03.2020
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JUDGMENT
1. Shri Gian Popli, the complainant/victim, recorded his statement to the police inter alia alleging therein on on 17.12.2015 at about 6.15 a.m. he boarded bus route no.GL-23 bearing registration no. DL-1PC- 6521 from Anand Vihar Bus Stand and at that time 20-25 passengers were present in the said bus. It is also alleged that at the next stop, 5-6 boys, age group of 20-25 years, creating nuisance and on being suspected, he (complainant) went near the seat of conductor and requested him to got stopped but he did not pay any heed and signalled to those boys near to him (complainant) and those boys laid him (complainant) on the floor of the bus and out of them two caught hold of him by hands while two of them caught hold of him by his feet while one put his hands on his mouth and taken out Rs. 70,000/-; his driving licence; Aadhar card and other documents kept in the pocket of his pants. It is further alleged that during this incident, neither conductor nor driver helped him nor stopped the bus near police picket or PCR van and despite all this, those culprits were allowed to leave the bus after opening the back door of the bus. Complainant further alleged that when he (complainant) asked that he would report the matter about their connivance, conductor made call to his SC No.: 551/2019 State Vs. Devender etc. Page No.: 2 of 15 senior officers and called them in order to create pressure upon him. Thereafter he made call at number 100 and on inquiry name of conductor was revealed as Devender while name of driver was revealed as Rajvinder Singh further stating that this incident had occurred with the connivance of the driver and conductor of the said bus.
2. On the basis of the said complaint, present case bearing FIR No. 921/2015 Under Sec. 395 IPC PS Krishna Nagar was registered.
3. During the course of the investigations, Devender, conductor of the bus was arrested. Bus was seized and after conducting formal proceedings, case against accused Devender was filed before the court of learned Metropolitan Magistrate to face trial.
4. After compliance of provisions of Sec. 207 CrPC by the court of ld. MM, case was committed to the Court of Sessions as Section 395 IPC involved in the present matter is exclusively triable by it.
5. Vide order dated 01.04.2019 passed by ld. predecessor, charge under Section 109 IPC read with Sec. 395/34 IPC was framed against the said accused to which he pleaded not guilty.
6. lt is worthwhile to mention here that during the course of trial, supplementary challan against accused Rajvinder, driver of the bus, was also filed and same was also assigned to this court. Vide order dated SC No.: 551/2019 State Vs. Devender etc. Page No.: 3 of 15 25.07.2019 charge under Sec.109 IPC read with Sec. 395/34 IPC was framed against the said accused. To the said charge, this accused also did not plead guilty and claimed trial.
7. In order to bring home the guilt against both these accused persons, prosecution took help of six witnesses, who are as follows:-
PW-1 HC Ashwani, Duty Officer, proved the copy of he FIR as Ex.PW1/B with copy of the DD No. 9-A as Ex.PW1/D;
PW-2 Sh. Gyan Popli is the complainant/victim and proved his statement Ex.PW2/A. He is also a witness to the arrest of accused Devender/conductor of the bus and proved memos as Ex.PW2/C & D;
PW-3 Const. Gopal Singh joined the investigations of this case and is a witness to the arrest of accused Devender and proved the memos Ex.PW2/C & D and also Ex.PW3/A for the same. He also deposed that bus in question was seized vide memo Ex.PW3/B;
PW-4 HC Anil joined the investigations of this case on 19.01.2016 and is a witness to the arrest of two persons Sunil Kumar and Shahnawaz and proved the memos Ex.PW4/A to F. PW-5 ASI Yashpal is the Investigating Officer of the case, who put his endorsement Ex.PW5/A on the statement of complainant; prepared site plan and proved the proceedings conducted by him; and SC No.: 551/2019 State Vs. Devender etc. Page No.: 4 of 15 PW-6 ASI Suhash Chand is also part IO of the case who filed the chargesheet against accused Devender.
During the prosecution evidence, witnesses HC Veerpal Malik; Const. Kamal Singh and Const. Veerpal were dropped at the request of ld. Addl.PP being unnecessary witnesses related to two person who have already been discharged as TIP was failed.
Detailed testimony of the witnesses concerned will be discussed at relevant time of judgment.
8. All the incriminating evidence which has come on record has been put to both the accused persons under Section 313 CrPC. These accused denied all the incriminating evidence put to them and pleaded their false implication.
9. Accused Devender further pleaded that he could not intervene the matter due to fear as the culprits were having weapons in their hands and they might cause injuries to him and also rob him as he was having cash being conductor of the bus.
10. Accused Rajvinder Singh further pleaded that being driver of the bus his main focus was on the road while driving the bus and he did not hear any noise. He further pleaded that he never opened the back side SC No.: 551/2019 State Vs. Devender etc. Page No.: 5 of 15 gate of the bus nor slow down the bus and there is no question of opening the rear gate of the bus in the mid way and no question of helping the accused persons. Neither of these accused opted to lead Defence Evidence.
11. I have heard the submissions of Sh. A.K. Mishra, ld. Addl. PP for the State and ld. defence counsels for accused persons. I have also perused the material available on record with the law on the issues in question.
12. Ld. Addl. P.P. for the State argued that the prosecution has proved its case beyond all reasonable doubt by examining the prosecution witnesses who in clear and unequivocal terms stated that accused are responsible for the crime committed in the present matter. Ld. Addl. PP for the State further contended that there is no reason for implication of the accused persons as no ill-will, grudge or enmity has either been alleged or proved against the material public witness/complainant. Ld. Addl.PP for the State further contended that presence of both these accused persons is admitted by themselves even on date, time and place of incident. Ld. Addl. PP prayed for conviction to these accused persons, for the offence for which they have been charged with.
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13. Per contra, ld. defence counsels submitted that mere presence of any person at the spot on the day, time and place of incident cannot be reason for their implication in the offence alleged on the victim.
14. Ld. counsel for accused Rajvinder, driver of the bus, contended that the star and key witness of the case, PW-2 Gyan Popli did not implicate the accused Rajvinder, driver of the bus as being responsible for the crime and even during his cross-examination conducted on 17.08.2019 on behalf of accused Rajvinder in clear and unequivocal terms stated as - "It is correct that there is no foul play committed by driver in the crime committed with me. It is correct that when driver drove the vehicle, his focus is towards front side. It is also correct that in the center back mirror, the complete background is not covered." - and this all goes in favour of this accused and same is entitled for acquittal of the accused. Ld. defence counsel prayed for acquittal of the said accused.
15. Sh. K.K. Tyagi, ld. counsel for accused Devender that admittedly despite presence of so many other passengers in the bus at the time of the incident, as none came forward to help the victim, this accused was also unable to help the victim and this conduct of the accused has been taken as involvement of the accused in the crime is no ground for SC No.: 551/2019 State Vs. Devender etc. Page No.: 7 of 15 conviction. Ld. defence counsel further contended that accused in clear words stated that on account of weapons in the hands of the actual culprits, he became terrified and later on got stopped the bus at appropriate time. Ld. counsel for this accused further submitted that during examination-in-chief conducted on this witness on 17.08.2019 this witness in claar and specific terms staed as - At that time, conductor replied me that the assailants may stab him with knife - shows the clear picture abut intentions of the said accused and futrher during cross-examination conducted on this witness on 17.08.2019 on behalf of this accused, this witness in clear terms stated as - I did not see any police picket from the place of incident to the place where bus was stopped - and this all favours the accused. Ld. defence counsel further contended that during cross- examination witnesses admitted the suggestions put to him by ld. Addl.PP to the said effect and niddle nodle testimony of the said witness cannot be relied upon. Ld. counsel further contended that all this makes the prosecution case doubtful.
16. Both counsels for the accused persons contended that prosecution has to prove its case beyond all reasonable doubts and prosecution has failed to do so and thus, submitted that both these accused are entitled for acquittal and prayed for their acquittal. SC No.: 551/2019 State Vs. Devender etc. Page No.: 8 of 15
17. Having carefully gone through the entire material on record and have considered the rival submissions of the parties in the light of the law laid down on the issue in question after due care.
18. Admittedly, in the present matter the star and key witness of the case is PW-2 Gyan Poply, the complainant/victim.
19. Court will analysis the testimony of this witness on touchstone. This witness during his examination-in-chief conducted on 17.08.2019 in clear words stated as - "I requested to the conductor of the said bus to stop the bus and he got stopped the bus after some distance xxxxin the meanwhile the assailants have run away from the bus after committing the crime." The presence of this accused at the spot on the day and time of the incident is not denied. It was the primary duty of this accused being conductor to make whistle or make any other gesture to get bus stopped at place where accused persons might be apprehended by police or not to stop at that place to facilitate the accused persons to flee away. This all shows the conduct of this accused. Being public servant, he is more duty bound to help the public person(s) in that situation. Admittedly, no ill-will, enmity or grudge has either been alleged or proved against the present accused for his involvement in the present matter. It is also to be kept in SC No.: 551/2019 State Vs. Devender etc. Page No.: 9 of 15 mind that the witness failed to identify the accused persons Rajvinder who was arrested pursuance to the disclosure statement of this accused and this shows the genuine and truthful conduct of PW-2 Gyan Popli.
20. This accused has been charged for the offence punishable under Sec. 109 IPC read with Sec. 395 IPC.
21. Section 109 IPC is reproduced as under:
"Whoever abets any offence shall, if the act abetted is committed in consequences of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punishment provided for the offence."
22. In a case reported as Ramakant Tiwari Vs. State, 2007 Crl LJ (NOC) 306 (MP): Gajjan Singh Vs State 2014 CrLJ NOC 388, it was clearly observed that as it was alleged that the accused has facilitated the main accused for committing rape upon the victim, the accused had taken a separate room in a lodge so that he could shift her to that room, the accused instead of helping and protecting victim, did everything to help the main accused and as such, conviction of accused under Sec. 376 IPC read Sec. 109 IPC was held proper. Apart from that in case reported as Parveen Pradhan V. State of Uttaranchal, 2012 (10) JT 478 it is SC No.: 551/2019 State Vs. Devender etc. Page No.: 10 of 15 observed that offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done byther p4reson who has been abetted. Abetment may be by instigation, conspiracy or intentional aid as provided under section 107 of the Code. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation.
23. Though accused persons who could not be identified by victim during their disclosure statement did not name the present accused namely Devender but it is beyond doubt a crime has been committed on the victim on the date, time and place of incident in the presence of this accused and he could very easily make efforts to get the bus stopped at place where accused persons could be apprehended but accused failed to do so.
24. Under the over all circumstances and observations, this court is of the view that though prosecution has failed to bring home the guilt of the accused for the offence punishable under Sec. 109 r/w 395/34 IPC but enough material has come on record to the effect that provisions of Sec. 385 IPC are attracted in the present matter and case of accused Devender comes within the ambit of Sec. 109 IPC read with Sec. 385/34 IPC. As such, prosecution has proved its case beyond all reasonable doubts SC No.: 551/2019 State Vs. Devender etc. Page No.: 11 of 15 against this accused namely Devender S/o Sh.Gopi Chand for offence punishable under Sec. 109 IPC read with Sec. 385/34 IPC. Accordingly, accused Devender S/o Sh. Gopi Chand is acquitted for the offence punishable under Sec. 109 IPC read with Sec. 395/34 but is held guilty for the offence punishable under Sec. 109 IPC read with Sec. 385/34 IPC and is convicted.
25. Now court shall deal with the case qua accused Rajvinder, the driver of the bus in question.
26. The star and key witness of the present case, as mentioned above, is PW-2 Gyan Popli. This witness was examined and cross- examined on 17.08.2019. During his examination-in-chief, he did not name this accused being responsible for any crime committed upon him or as charged in the present case. This witness was cross-examined on behalf of the State and during said cross-examination conducted on behalf of State admitted the suggestion as - "It is also correct that after robbing me, the coductor and driver of the bus assisting to the assailants and then opened the rear door of the bus and helped the assailtns/pick pocketers to flee away from the bus."
27. However, during cross-examination conducrted on this witness on behalf of accused Rajinder, on the same daty, this witness admitted the SC No.: 551/2019 State Vs. Devender etc. Page No.: 12 of 15 suggestions as - "It is correct that there is no foul play committed by driver in the crime committed with me. It is correct that when driver drove the vehicle, his focus is towards front side. It is also correct that in the center back mirror, the complete background is not covered."
28. There is no dispute to the fact that main focus of the driver is always be on the road and particularly when he drives so big vehicle with passengers on a public road or at any other place. Apart from that, victim/complainant in clear words admitted that no foul play was being committed by driver i.e. present accused and also that in the center back mirror, the complete background was not covered.
29. It is also admitted position of the law that it must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of law. For holding this view, I am supported with the case reported as SC No.: 551/2019 State Vs. Devender etc. Page No.: 13 of 15 Nallabothu Venkaiah Vs. State of Andhra Pradesh, 2002 VI AD (SC)
521. Apart from that, it is also duty of the court to all the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not presides to see that no innocent man is unpunished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. (Ref. State of UP V. Anil Singh AIR 1988 SC 1998).
30. With the above observations and discussion made above, this court is of the view that prosecution has miserably failed to prove its case against accused Rajvinder Singh S/o Sh. Avtar Singh for the offence punishable under Sec. 395 IPC read with Sec. 109 IPC for which accusedd has been charged with and as such, said accused namely Rajvinder Singh S/o Sh. Avtar Singh is acquitted for the said offence punishable under Section 109 IPC read with Sec. 395/34 IPC or any other offence.
31. Sum up of the above discussion is that prosecution has fully proved its case against accused and as such, Devender S/o Sh.Gopi Chand is held guilty for the offence punishable under Sec. 109 IPC SC No.: 551/2019 State Vs. Devender etc. Page No.: 14 of 15 read with Sec. 385/34 IPC and is convicted. While prosecution has failed to prove its case against the accused, and as such, accused namely Rajvinder Singh S/o Sh. Avtar Singh is hereby acquitted for the said offence punishable under Section 109 IPC read with Section 395/34 IPC.
Announced in the open Court on 16th day of March, 2020 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
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