Delhi District Court
Fir No. 202/10; State vs . Babloo & Anr. Page 1 Of 24 on 29 April, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 68/13
FIR No. 202/10
P.S. Mahendra Park
U/S: 394/397/411/34 IPC &
27/54/59 Arms Act
STATE
Versus
(1) BABLOO
s/o Om Pal
r/o C1385,
Jahangirpuri, Delhi
(2) KALAM @ IQLAM
s/o Noor Mohd.
r/o C450,
Jahangirpuri, Delhi
Date of Institution: 07122010
Date of arguments: 26042013
Date of judgement: 29042013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 07092010, on receipt of DD no. 8A, SI Madan Mohan along with FIR No. 202/10; State Vs. Babloo & Anr. Page 1 of 24 Ct. Ankit reached at the spot in front of Shed no. 3, Azadpur Subzi Mandi where complainant Sudesh Kumar produced accused Babloo and stated that Babloo was caught by the public and given beatings by them. It was a rainy day and there was mud in the Mandi. Accused Babloo was smeared with mud and his shirt was lost somewhere. Ct. Rajesh also reached at the spot. Complainant Sudesh Kumar gave his statement that he was watchman in Azadpur Subzi Mandi and was on night duty on that day. In the night time at about 3:30 am during patrolling when he reached in front of Shed no. 3, suddenly three boys came there and one of those boys pushed him. When complainant objected to the same, those boys started abusing him. Those boys were having a bag and one of the boys took out iron rod and two boys took out knives and pointed towards the complainant and asked him to hand over whatever he was having but when complainant resisted, one of the boys hit iron rod on the head of complainant due to which complainant received injuries. One boy having meat cutting knife in his hand took out Rs. 200/ and Election Icard forcibly from the pocket of shirt of complainant. Complainant raised noise and one boy having knife in his hand was caught by the public while the FIR No. 202/10; State Vs. Babloo & Anr. Page 2 of 24 other two boys managed to flee away from the spot. One of the boys who fled from the spot left the iron rod near the bag and the other boy also fled while waving the knife in the air.
2. It is also the case of the prosecution that on inquiry, the name of the boy caught by the public was revealed as Babloo and names of boys who fled from the spot were revealed as Pankaj and Iqlam. Public persons gave beating to Babloo and left from there. Someone called the police. On search of accused Babloo, Rs. 200/ and Election Icard were recovered. One meat cutting knife was also recovered from the right hand of Babloo. Pullanda was prepared of the recovered amount of Rs. 200/ and it was sealed. Sketch of the knife was also prepared and it was measured. The total length of the knife was 29 cms; blade was 18 cms; and handle was 11 cms. One iron rod was also recovered from the spot lying near the bag. Its total length was 30 cms. Knife and iron rod were also taken into possession. One school type bag of pink and sky colour was also recovered which was taken into possession. Complainant stated that Pankaj and Iqlam who fled from the spot were aged 24/25 years. Accused Babloo was got medically examined from BJRM hospital through Ct. Rajesh. After giving FIR No. 202/10; State Vs. Babloo & Anr. Page 3 of 24 bath, accused Babloo was again medically examined by a Medical Board and accused Babloo was admitted in BJRM hospital. Thereafter, FIR u/s 394/397 IPC and 27/54/59 Arms Act was registered. Accused Babloo was arrested in this case and he gave disclosure statement. Accused Babloo disclosed the names of his associates as Kalam @ Iqlam and Shani @ Pankaj. Accused Kalam @ Iqlam was arrested from his house but accused Shani @ Pankaj could not be arrested as his address was not known. On 16092010, accused Kalam @ Iqlam was identified by the complainant Sudesh Kumar in TIP. After completion of investigation, chargesheet was filed in the court u/s 394/397/411/34 IPC and 27/54/59 Arms Act against accused Babloo and Kalam @ Iqlam.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/394/34 IPC was framed against accused Babloo and Kalam @ Iqlam and in addition accused Babloo was also charged u/s 397 IPC to which both accused pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution has examined 11 witnesses. Statements of accused were recorded u/s 313 Cr.P.C. FIR No. 202/10; State Vs. Babloo & Anr. Page 4 of 24 therein they denied all the allegations made against them. Both accused opted not to lead defence evidence.
5. I have heard Ld. Amicus Curiae and Ld. APP for State and have perused the entire records.
6. Ld. Amicus Curiae for the accused persons argued that it is the case of the prosecution that accused Babloo was apprehended by the public at the spot and beaten and how it can be possible that there is no mud found on the identity card, Rs. 200/ and a knife recovered from him. The Ld. Amicus Curiae further argued that no knife was used by the accused Babloo. The knife was planted upon the accused Babloo. No disclosure statement was made by the accused and nothing has been recovered from the accused persons. The accused Kalam @ Iqlam was already shown to the witness. The accused persons have been identified at the instance of IO concerned. No public witness was joined during investigation. All the proceedings were conducted by the police officials while sitting in the PS. The nature of injury is simple as per the MLC of the injured. There are contradictions in the testimony of PWs. The testimony of complainant/ PW3 is not trustworthy. The police has not FIR No. 202/10; State Vs. Babloo & Anr. Page 5 of 24 investigated the case fairly.
7. Ld. APP for State argued that the accused Babloo and Iqlam along with their associate committed robbery and the accused Babloo also used the deadly weapon i.e. knife while robbing the complainant. Two currency notes in the denomination of Rs. 100 each, election Icard belonging to the complainant and also the knife were recovered from the accused Babloo. One iron rod and one bag were also found lying at the spot. The MLC, which reveals the injury on the person of the complainant, has also been proved on record. The complainant identified accused Iqlam in the TIP. The complainant also identified the accused persons, currency notes, Election Icard, knife, iron rod by which he was hit on his head and also the bag in the court. The Ld. APP for the State further argued that the accused persons may even be convicted on the sole testimony of complainant if his testimony is found trustworthy and reliable. The Ld. APP also argued that accused persons cannot get benefit of defective investigation. Further, the contradictions in the testimony of PWs are the minor contradictions which do not affect the merit of the case. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in FIR No. 202/10; State Vs. Babloo & Anr. Page 6 of 24 the case of Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1); Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920.
8. In view of the above arguments of the Ld. Amicus Curiae and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused persons had committed the offence as charged or whether they have been falsely implicated. PW3 Sudesh Kumar is the complainant and he stated that on the intervening night of 06/07092010, as per instructions of his contractor, he was on night duty. During patrolling, at about 3:30 am, when he reached in front of Road no. 3, suddenly three boys came and one of them pushed him. When he objected, they all started abusing him. One of them was having a bag with him and he took out one iron rod from the said bag and two boys took out knives and threatened PW3 "jo kuch hai nikal kar de". When PW3 objected, accused Kalaam (correctly identified) gave a blow with iron rod on his hand, due to which he received injury. Accused Babloo (correctly identified) forcibly took out Rs. 200/ and election Icard from the pocket of his shirt. PW3 raised alarm and FIR No. 202/10; State Vs. Babloo & Anr. Page 7 of 24 thereafter, two accused fled away from the spot. Accused Babloo was apprehended by the public persons at the spot. Accused Kalam threw the iron rod on the spot while fleeing the spot. Public persons gave beatings to accused Babloo. Police also arrived and on interrogation, accused Babloo revealed the names of his associates as Pankaj and Kalaam. Custody of accused Babloo was handed over to IO.
9. PW3 further stated in his examination in chief that on search of accused Babloo, his election Icard and Rs. 200/ were recovered from the left hand of accused and a knife was recovered from the right hand of accused Babloo. The said Rs. 200/ were wrapped in a cloth and converted into pullanda and sealed with the seal of MM and his Icard and said pullanda were taken into possession vide seizure memo Ex. PW3/A bearing signatures of PW3 at point A. IO prepared sketch of the knife recovered from accused Babloo vide memo Ex. PW3/B bearing signatures of PW3 at point A. The iron rod found at the spot and knife recovered from the possession of accused Babloo were also taken into possession after preparing two separate pullandas and sealing the same with the seal of MM vide memos Ex. PW3/C and PW3/D. One school FIR No. 202/10; State Vs. Babloo & Anr. Page 8 of 24 bag was also found lying at the spot which was taken into possession vide memo Ex. PW3/E. IO recorded statement of PW3 vide Ex. PW3/F. PW3 identified the currency notes in the denomination of Rs. 100 each vide Ex. P1 and election Icard as Ex. P2 which were robbed by the accused persons and recovered from the possession of accused Babloo. PW3 also identified knife Ex. P3 recovered from accused Babloo; iron rod Ex. P4 hit on his head which was lying on the spot along with one bag Ex. P5.
10. During crossexamination, PW3 stated that he was taken to hospital when the sun was about to rise but the exact time he could not recall. PW3 volunteered that prior to him, accused Babloo was taken to hospital. PW3 could not recall how accused Babloo was taken to hospital. PW3 also stated that at the time of incident also, six or seven public persons were there who were unloading the apple cartons from the truck. PW3 denied the suggestion that after arrival of the police, he was immediately shifted to hospital. He volunteered that paper work was completed by the police first. He signed 5 or 6 documents during investigation at the spot on same day. PW3 also stated that police prepared all the documents near pole no 6 from the side of Shed no. 3. PW3 FIR No. 202/10; State Vs. Babloo & Anr. Page 9 of 24 denied the suggestion that he signed the documents in the hospital. He also denied that accused Babloo was not apprehended on the spot in his presence. PW3 stated that he had never seen the accused Babloo before the date of incident. He denied that he had not seen the knife, rod and bag Ex. P3 to P5 on the spot. He also denied that nothing was recovered from the accused Babloo. PW3 further stated in his crossexamination that his duty hours were from 8 pm to 8 am next day and he was not having any mobile phone. PW3 stated that he contacted his contractor after telling number to a driver, who informed contractor and he talked to the contractor on the mobile phone. PW3 stated that no relative of his reached the spot as they were residing in Haryana. PW3 denied the suggestion that accused was not present at the spot or that he identified the accused at the instance of IO.
11. Undoubtedly, PW3 is the victim in this case and the accused persons caused injury on the person of the complainant/ PW3 who has also identified them. Even, the accused Babloo was apprehended at the spot. PW3 also identified the currency notes Ex. P1, his election Icard Ex. P2 and knife recovered from the accused Babloo. PW3 further identified the iron rod Ex. P4 and one FIR No. 202/10; State Vs. Babloo & Anr. Page 10 of 24 bag Ex. P5 which were used by the accused persons at the time of committing robbery and the same were found at the spot itself. In this regard, I would place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted. In the present case, the testimony of PW3 has not only inspired the confidence but he is also trustworthy. Moreover, PW9 Sh. Neeraj Gaur, Ld. MM, Rohini FIR No. 202/10; State Vs. Babloo & Anr. Page 11 of 24 proved the application for TIP of accused Kalam @ Iqlam as Ex. PW9/A and also TIP proceedings of accused Kalam @ Iqlam as Ex. PW9/B.
12. PW2 Dr. Sumit Arora, JR, BJRM Hospital proved the MLC Ex. PW2/A of Sudesh @ Malak prepared by him. On 26112010, PW2 opined the nature of injury as simple in the MLC Ex. PW2/A. PW5 Dr. K. Goel, CMO, Mortuary Subzi Mandi stated that on 07092010, he was working in BJRM hospital and a Medical Board headed by him was constituted by MS, BJRM hospital for reexamination of accused Babloo, 22 years. He proved the MLC of accused Babloo as Ex. PW5/A. PW6 Dr. Deepak Chugh, MO, BJRM hospital stated that on 07092010 he was posted at BJRM hospital as CMO. At about 5:10 am, JR Resident Casualty, Dr. Pawan Sisodia examined Babloo in his presence vide MLC Ex. PW6/A upon which he identified signatures of Dr. Pawan at point A and bearing his name at point B. PW7 Dr. Ajay Sonker, HOD, Surgery, BJRM hospital and PW10 Dr. Bhim Singh, MD, BJRM hospital were also members of Committee headed by Dr. K. Goel regarding reexamination of Babloo vide MLC Ex. PW5/A. FIR No. 202/10; State Vs. Babloo & Anr. Page 12 of 24
13. PW1 HC Rajpal, Duty Officer proved the FIR as Ex. PW1/A and endorsement on the rukka as Ex. PW1/B. PW1 recorded DD no. 19A regarding registration of FIR. PW1 also proved DD no. 8A dated 07092010 as Ex. PW1/C. PW4 Ct. Rajesh Kumar stated in his examination in chief that on the intervening night of 06/07092010, while patrolling, he reached Shed no. 3, New Subzi Mandi where he found Ct. Ankit, SI Madan Mohan, injured Sudesh and Babloo. Babloo was not having any shirt on his body and was smeared with mud. He came to know that Babloo was beaten by public. PW4 identified accused Kalaam as accused Babloo. PW4 was crossexamined by Ld. APP for State on the point of identification of accused Babloo and he correctly identified him. PW4 further stated in his examination in chief that in the left hand of accused Babloo, Rs. 200/ and election Icard were found and in the right hand, he was having one meat cutting knife. SI Madan Mohan took the knife from the accused and prepared its sketch Ex. PW3/B and then seized vide memo Ex. PW3/D. SI Madan Mohan seized Rs. 200/ and election Icard vide memo Ex. PW3/A. One iron rod was also lying there which was seized vide memo Ex. PW3/C. One sky blue colour school bag was FIR No. 202/10; State Vs. Babloo & Anr. Page 13 of 24 also found there and it was seized vide memo Ex. PW3/E. Accused Babloo was medically examined at BJRM hospital. Accused Babloo was again medically examined through Medical Board at BJRM hospital as some injuries were noticed on his body later on. Injured Sudesh was also medically examined. PW4 identified the currency notes as Ex. P1; election Icard as Ex. P2; knife as Ex. P3; iron rod as Ex. P4 and bag as Ex. P5. In his examination in chief, PW8 Ct. Yogesh Kumar stated that on 08092010, he along with SI Madan Mohan went to BJRM hospital where accused Babloo met them and SI Madan Mohan interrogated him. Accused Babloo was arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B. Accused Babloo made disclosure statement vide Ex. PW8/C. As accused Babloo was having injuries, he was left in the hospital and they went in search of accused Kalam and reached CBlock, Jahangirpuri. Accused Kalam met them and he was brought to PS Mahendra Park. Accused Kalam made disclosure statement Ex. PW8/D. Accused Kalam was arrested vide memo Ex. PW8/E and his personal search was conducted vide memo Ex. PW8/F. PW9 Sh. Neeraj Gaur, MM, Rohini proved application for TIP of accused Kalam @ Iqlam FIR No. 202/10; State Vs. Babloo & Anr. Page 14 of 24 as Ex. PW9/A; TIP proceedings Ex. PW9/B whereby the complainant Sudesh correctly identified the accused Kalam.
14. PW11 SI Madan Mohan stated in his examination in chief that on 07092010, on receipt of DD no. 8A Ex. PW1/C regarding a quarrel at Shed no. 3, Subzi Mandi, Azadpur, Delhi, he along with Ct. Ankit went to the spot where complainant Sudesh Kumar met them and produced accused Babloo before them. Accused Babloo was smeared with mud as it was a rainy day. Complainant Sudesh told them that two other associates of Babloo had run away. Complainant further disclosed that accused Babloo and his other associates committed robbery with him after using two knives and iron rod. Ct. Rajesh also reached there during patrolling. On formal search of accused Babloo, one election Icard and Rs. 200/ cash of complainant were recovered which were identified by complainant and which were robbed by the accused. One knife was also recovered from the right hand of accused Babloo. The recovered cash amount was converted into pullanda and sealed with the seal of MM and the parcel and election Icard were taken into possession vide seizure memo Ex. PW3/A. Sketch Ex. PW3/B of the knife was prepared and it was measured. The FIR No. 202/10; State Vs. Babloo & Anr. Page 15 of 24 knife was converted into cloth pullanda and seized vide memo Ex. PW3/D. The iron rod found at the spot was also converted into cloth pullanda and seized vide memo Ex. PW3/C. One bag of pink and sky blue colour found at the spot and accused Babloo told that they carried the weapons and rod in the said bag was seized vide memo Ex. PW3/E. Statement of Sudesh Kumar was recorded vide memo Ex. PW3/F.
15. PW11 further stated in his examination in chief that since accused Babloo was having injuries, he was medically examined at BJRM hospital through Ct. Rajesh vide MLC Ex. PW6/A. Accused Babloo was again sent to BJRM hospital for medical examination as all injuries were not mentioned in the MLC. Thereafter, accused Babloo was examined through Medical Board vide MLC no. 14894 Ex. PW5/A. Complainant was also got medically examined in BJRM vide MLC Ex. PW2/A. On the basis of statement of complainant, IO prepared the rukka Ex. PW11/A and got the FIR registered through Ct. Rajesh. PW11 prepared the site plan Ex. PW11/B at the instance of complainant. On 08092010, PW11 along with Ct. Yogesh went to BJRM hospital and accused Babloo was arrested vide memo Ex. PW8/A and his personal FIR No. 202/10; State Vs. Babloo & Anr. Page 16 of 24 search was conducted vide memo Ex. PW8/B. Accused Babloo gave disclosure statement Ex. PW8/C. Thereafter, coaccused Kalam @ Iqlam was arrested from H. No. C450, Jahangirpuri vide arrest memo Ex. PW8/E and personal search was conducted vide memo Ex. PW8/F. Accused Kalam also gave disclosure statement Ex. PW8/D. On 16092010, judicial TIP Ex. PW9/B of accused Kalam was got conducted and complainant Sudesh correctly identified him. PW11 also identified currency notes as Ex. P1; election Icard as Ex. P2; knife Ex. P3; iron rod as Ex. P4 and bag as Ex. P5 and stated that Ex. P4 and P5 were found lying at the spot.
16. During crossexamination, PW4 stated that there was no mud on the currency notes Ex. P1 and on the election Icard Ex. P2. PW4 deposed that there was no mud on the knife and rod. The court made observation that dust came out when the parcel containing rod was opened and dust also came of the knife. PW4 stated that he cannot specify the place where SI Madan Mohan did the writing work but it was in Shed no. 3. PW4 denied the suggestion that he did not reach the spot or that all the proceedings were recorded in the PS. PW4 also denied that he was not able to FIR No. 202/10; State Vs. Babloo & Anr. Page 17 of 24 identify accused Babloo as he had not seen him before that day. PW4 further stated that on that day, I was on night duty from 12 midnight to 6 am. During crossexamination, PW8 stated that he was not knowing Kalam before that day. He volunteered that address of Kalam was given by accused Babloo. He further stated that they reached the house of accused by asking from the local residents. PW8 could not recall the house numbers situated adjacent to the house of Kalam, but his house was near the cinema hall, however, he stated that as far as he remember, it was double storey house. PW8 further stated that information about the arrest of accused was given to his mother. PW8 denied the suggestion that he never visited the house of accused Kalam. PW8 further stated in crossexamination that no relative of Babloo met them in the hospital. He denied the suggestion that accused Babloo did not make any disclosure statement or that all the proceedings were recorded in the PS or that he deposed falsely at the instance of IO. In crossexamination, PW9 stated that he had not taken any ID proof of the witness. It was observed by the court that witness was identified by SI Madan Mohan at the time of TIP.
17. During crossexamination, PW11 stated that he was on FIR No. 202/10; State Vs. Babloo & Anr. Page 18 of 24 duty from 8 pm to 8 am on 06092010 to 07092010. He further stated that he along with Ct. Ankit immediately left the PS on his own scooter no. DL5SL4827 and reached the spot at about 4:30 pm and when they reached the spot, complainant along with accused met them there whereas the other public persons had already left the spot. Personal search of accused Babloo was conducted by PW11. PW11 also stated that first of all, he conducted formal search of accused and subsequently the seizure proceedings were conducted by him and he prepared four seizure memos. PW11 stated that accused was smeared with mud. PW11 denied the suggestion that nothing was recovered from the possession of accused Babloo or that he was deposing falsely. PW11 further stated that Ct. Rajesh was present besides him and Ct. Ankit as Ct. Rajesh met them while patrolling the area. PW11 also stated that as no public person met them at the spot, therefore, the memos were not signed by any public persons except the complainant and Ct. Rajesh. PW11 prepared the sketch of the knife and it was measured with scale. Four pullandas were prepared by PW11. No document was prepared in the absence of Ct. Rajesh as he went to the hospital with accused Babloo. PW11 FIR No. 202/10; State Vs. Babloo & Anr. Page 19 of 24 further stated that he tried to search the other public witness. The shirt of accused Babloo was got torn as he was beaten by the public and the said shirt was found lying on the ground. PW11 also stated that in the chowki, they had given accused Babloo the clothes to change. One other Ct. Jai Karan was sent from the Chowki to bring the clothes for Babloo.
18. PW11 further stated in his crossexamination that they left the chowki at about 7:15/ 7:30 am for medical examination of Baloo and complainant was also with them. Accused Babloo was again medically examined at about 5:30 pm by the Medical Board. PW11 stated that he remained in the hospital till 5:30 pm and after sending the rukka, they immediately left the hospital. Rukka was prepared in the hospital and it was started writing at about 5:10 pm. PW11 further stated that they went to the spot and reached there at about 5:45 pm. Ct. Rajesh also reached the spot along with copy of FIR and rukka. Sonu, brother of accused Babloo was informed about the arrest of accused Babloo. PW11 stated that he prepared the site plan of the spot while sitting at Patri of Shed no. 3 at the instance of complainant and also recorded his supplementary statement and thereafter, he was discharged at about 7 pm. PW11 FIR No. 202/10; State Vs. Babloo & Anr. Page 20 of 24 remained at the spot till 8:30 pm. PW11 took the parcels at about 9:30 pm to PS along with Ct. Rajesh. PW11 further stated that on 08092010, he along with Ct. Yogesh went to BJRM hospital at about 6 pm. At the time of interrogation of accused Babloo, no staff or patient was joined in the hospital. PW11 also stated that from the hospital, they went to the house of accused Kalam on his own scooter. PW11 did not know the accused Kalam prior to that day. PW11 stated that house of accused Kalam was situated in a thickly populated area. The father of accused was present in the house. Accused Kalam was interrogated on the ground floor of the house. PW11 stated that they reached the PS at about 8:30 pm. PW11 denied the suggestion that accused Kalam was shown to the complainant in the PS. PW11 also denied that no disclosure statement was made by the accused persons or that nothing was recovered from them, or that he was deposing falsely.
19. The Ld. Defence counsel argued that the police has not fairly investigated and the investigation is defective. Ld. APP for State argued that if there is a defective investigation, the accused persons cannot take the benefit of it. It is relevant to mention here that even if the investigation is defective or faulty, the accused FIR No. 202/10; State Vs. Babloo & Anr. Page 21 of 24 persons cannot be acquitted solely on account of defective or faulty investigation. In this regard, I would place reliance upon the Judgment reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
20. Let us examine whether there are contradictions in the testimonies of PWs. I have found that there are some contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. So far as public FIR No. 202/10; State Vs. Babloo & Anr. Page 22 of 24 witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused persons for nonjoining of independent public witnesses. In this context, I am supported with the judgements reported in the case of State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC
194. The complainant is the natural witness who has not only identified the accused persons who committed robbery but also used the rod and knife which have also been recovered with the other items i.e. Rs. 200/, Election Icard, bag. Doctors have also proved the injury caused by the accused persons on the person of injured/ PW3. The Ld. Amicus Curiae for the accused persons crossexamined PW3 but nothing has come out from the cross FIR No. 202/10; State Vs. Babloo & Anr. Page 23 of 24 examination of PW3 which could rescue the case of the accused persons.
21. In view of the my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold both accused namely Kalam @ Iqlam and Babloo guilty and convict them u/s 392/394/34 IPC. Accused Babloo is also held guilty and convicted for the offence u/s 397 IPC.
(YASHWANT KUMAR) ADDL.SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 29042013 FIR No. 202/10; State Vs. Babloo & Anr. Page 24 of 24