Delhi District Court
State vs 1. Akash @ Arun Kumar on 16 January, 2018
In the Court of
Dr. Satinder Kumar Gautam: ASJ-03(East):
Karkardooma Courts: Delhi.
S.C. No: 1089/2016
Old SC No. 92/2014
dated 05.02.2014
(ID No.: 02402R0056392014)
State Versus 1. Akash @ Arun Kumar
S/o Sh. Ram Chander
R/o 17/282, Trilokpuri,
Delhi.
2. Rahul @ Tapan
S/o Sh. Kishan Phalwan
R/o 16/46. Trilokpuri, Delhi
3. Avinash
S/o Sh. Ashok
R/o 17/331. Trilokpuri, Delhi.
FIR No. 399/2013
PS. Mayur Vihar
U/s. 392/397/411/34 IPC
Chargesheet Filed On : 15.01.2014
Chargesheet Allocated On : 05.02.2014
Court Presided over on : 06.11.2017
Judgment Reserved On : 06.01.2018
Judgment Announced On : 16.01.2018
Final Decision : Acquittal under Sec. 392/34 and 397 IPC.
Akash @ Arun Kumar convicted
under Sec. 25/54/49 Arms Act;
Accused persons Rahul @ Tapan
and Avinash convicted separately
under Sec. 411 IPC
JUDGMENT
1. Factual matrix of the present case, in brief, are that Sh. Pankaj Kumar, complainant, lodged a police report inter alia alleging therein that on SC No. 1089/16 State Vs. Akash etc. Page 1 of 11 03.11.2013 at about 4.5 a.m. while he was plying TSR bearing registration no. DL-1RK-3324 and was going towards Vasundhra, he noticed one boy standing in the mid of the road and two more boys were also with him standing nearby on which he applied brakes of his vehicle. On it, the boy who was standing in the mid asked him (complainant) to go for G.B. Road. Meanwhile other boys also came near to him and surrounded him. The first boy who was standing in the mid of the road started snatching money from him and when he (complainant) covered his pocket with his hands, then the boy who was standing on the left side, took out a katta and hit him (complainant) on head with butt of the said katta on account of which blood started oozing out. All the three boys robbed him cash amount of Rs. 700/-; purse containing cash amount of Rs. 260/- and some cards; his wrist watch and fled away from there. Police was informed at 100 number from his mobile which was kept lying in the dickey of the said TSR. Complainant further stated that he is able to identify those culprits. On the basis of the same, present FIR bearing no. 399/2013 Under Sec. 394/397/34 IPC PS Mayur Vihar was registered.
2. During the investigation of this case, on the same date, on the basis of secret information, all three accused persons were arrested. Robbed items and katta were recovered from the possession of the accused persons. Proceedings were conducted to that aspect. After completion of investigation, chargesheet was filed against these accused persons to face trial, for the offences alleged against them, before the court of ld. MM.
3. After compliance of provisions of Sec. 207 CrPC by the court of SC No. 1089/16 State Vs. Akash etc. Page 2 of 11 learned MM, case was committed to the court of Sessions as the offence punishable under Sec. 397 IPC was exclusively triable by it.
4. Vide order dated 29.04.2014 charge under Sec. 397 IPC and 25 Arms Act was framed against accused Akash @ Arun Kumar; charge under Sec. 392/34 IPC and 411 IPC was against accused Rahul @ Tapan while separate charge under for the offence punishable under Sec. 392/34 IPC & 411 IPC was framed against accused Avinash. To the said charges, all accused persons pleaded not guilty and claimed trial.
5. To prove the guilt against the accused persons, prosecution examined eleven witnesses in all in support of its case who are as follows:
PW-1 Pankaj Kumar, complainant/victim, narrated the incident occurred with him on date, time and place of incident further stating that accused persons are responsible for the crime committed upon him. He proved his statement Ex.PW1/A. He is also a witness to the arrest of all three accused persons and proved the proceedings conducted in that respect.
PW-2 HC Yash Pal, Duty Officer, proved the copy of the FIR as Ex. PW2/A. PW-3 HC Sudhir Kumar, part IO, reached the spot first and then to the hospital. He recorded the statement of complainant and put endorsement Ex. PW3/A and got the case registered. He further deposed that later on ASI Shailender came and he handed over the documents as further investigations of the case were entrusted to him.
PW-4 Const. Manish Mudgal, DD Writer, proved DD No. 10-B and SC No. 1089/16 State Vs. Akash etc. Page 3 of 11 11-B dated 03.11.2013 as Ex. PW4/A & B respectively.
PW-5 Const. Ram Singh joined the investigation of this case with ASI Shailender on 03.11.2013 and is a witness to the arrest of accused persons and recoveries effected from them. He also proved the memos and identified the case property.
PW-6 Sh. N.B. Bardhan, FSL Expert, proved his report Ex. PW6/A. PW-7 Ct. Ashok joined the proceedings with HC Sudhir Kumar (PW-3), got the case registered. He is also a witness to the arrest; recovery from accused persons and identified the case property.
PW-8 Sh. Surender, IPS, proved the sanction under Sec. 39 Arms Act as Ex. PW8/A accorded by him to prosecute accused Akash @ Arun.
PW-9 Dr. Virender, proved the MLC Ex.PW9/A in respect of Pankaj and also opinion on the same as "simple".
PW-10 ASI Shailender is the Investigating Officer of the case. He proved the memos prepared in this case. He stated that after completion of investigation, he filed the challan. He also identified the case property effected from the possession of the accused persons.
PW-11 Const. Sonu Kumar, proved the entries as Ex.PW11/A to D effected in register no. 19 vide serial no. 4798.
6. All the incriminating evidence put to the accused persons in their statement recorded under Sec. 313 CrPC. All these accused persons denied the allegations levelled against them and further pleaded their innocence. None of these accused claimed over case property. Accused Avinash earlier opted to lead SC No. 1089/16 State Vs. Akash etc. Page 4 of 11 DE but did not produce any witness in his defence. Remaining accused opted not to lead DE.
7. Accused persons Akash @ Arun and Avinash further pleaded that they have been booked in this case after lifting them from their respective houses.
8. Learned Addl. PP for the State argued that prosecution has been able to prove the charges against the accused persons through evidence of material witnesses coupled with other material witnesses. He also submitted that there is no reason to implicate any of these accused persons falsely in this case by complainant/victim as no ill-will, grudge or enmity has either been alleged or proved against him and that rather he would be the most interested person to see the actual culprit(s) behind bars. He argued that recovery has also been proved and no material contradiction is there and minor discrepancies and contradictions, if are there, be ignored in view of well settled law on this issue and particularly in view of the circumstances of the case in which manner incident occurred. Ld. Addl. PP prayed for conviction to the accused persons as per the charges.
9. Learned defence counsels submitted that prosecution case is liable to be demolish as no independent witness is there. It is also submitted that the only victim/complainant of the case in his cross-examination conducted on 24.09.2015) on behalf of accused Akash @ Arun Kumar clearly stated that he is unable to identify any of the culprit on account of dark there and this all goes in favour of the accused persons entitling them for their acquittal. It is also SC No. 1089/16 State Vs. Akash etc. Page 5 of 11 contended that prosecution has miserably failed to prove the arrest and recovery effected from any of these accused persons particularly in view of the contradictions and improvements in the testimonies of the witnesses which make the prosecution case doubtful and thus prayed for acquittal of the accused persons.
10. Perusal of the record clearly shows that PW-1 Pankaj Kumar (complainant/victim) in his examination-in-chief narrated the incident but during his cross-examination conducted on 24.09.2015, on behalf of accused Akash @ Arun Kumar and adopted by remaining accused persons, took U turn admitting the suggestion of accused persons that by stating that due to darkness he could not see the culprits and is unable to identify them and also unable to identify the culprit who had caused injuries to him. Hence, it is clear that during cross- examination complainant/victim of the case, who is only star and key witness of the incident of robbery failed to identify any of the culprits as responsible for the crime committed upon him which is fatal to the prosecution case to that aspect.
11. Hence, in view of the above discussion, court is of the view that prosecution has failed to prove its case against all these accused persons that they have robbed victim Pankaj Kumar and at that time, accused Akash used katta. As such, all these accused persons namely Akash @ Arun Kumar; Rahul @ Tapan and Avinash are acquitted of the offence punishable under Sec. 392/34 IPC and accused Akash @ Arun Kumar is also acquitted for the offence punishable under Sec. 397 IPC.
12. Qua recoveries, case of the prosecution is that accused Akash @ SC No. 1089/16 State Vs. Akash etc. Page 6 of 11 Arun Kumar was found in possession of countrymade pistol; while accused Rahul was found in possession of cash amount of Rs. 260/- kept in purse with some visiting cards of complainant/victim and accused Avinash was found in possession of a golden wrist watch of complainant/victim.
13. To prove the above, prosecution has examined PW-1 Pankaj Kumar; PW-5 Const. Ram Singh; PW-7 Const. Ashok Kumar and PW-10 ASI Shailender.
14. Regarding the contention of ld. defence counsels that there are conradictions and improvements, it is well settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. Minor discrepancies in the statements of witnesses are of no help to the accused. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or SC No. 1089/16 State Vs. Akash etc. Page 7 of 11 improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
15. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Honb'ble Apex Court observed that:
"In the depositions of witnesses there are always some normal discrepancies however honest ad truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
16. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra (Crl. A. 25-26/2000) the Hon'ble Apex Court held as under:
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays SC No. 1089/16 State Vs. Akash etc. Page 8 of 11 false and sense of observations differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW-2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. xxxx There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
17. 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 case reported as Nallabothu Venkaiah Vs. State of Andhra Pradesh 2002 VI AD (S.C.) 521.
18. There is no inconsistency or contradictions amongst the statements of prosecution witnesses so far as the recovery part is concerned. Hon'ble Apex court at several times in catina of judgments has observed that the police officials SC No. 1089/16 State Vs. Akash etc. Page 9 of 11 be also treated as par of the public witnesses if their testimonies are reliable and trustworthy and found no inconsistencies therein. In the case of Mohammed Ajmal Mohammadamir Kasab Vs. State of Maharashtra, (2012) 9 SCC 1, the evidence of police officials was held to be worthy, even if no independent witness has been examined.
19. Besides the above, no suggestion put to PW-5 Const. Ram Singh to the aspect that no recovery was effected from any of these accused persons. It is more interesting fact that during cross-examination conducted on behalf of accused persons, a suggestion has been put to this witness that purse was not checked after recovery. Cross-examination is double edged weapon. It can affect the prosecution case on either side. By giving this suggestion, it means that accused persons are admitting that purse was recovered from him. Besides the above, neither of the accused claimed articles as of their as recovered from their possession. Complainant has clearly identified his robbed and recovered articles as of him.
20. PW-6 Sh. N.B. Bardhan, FSL expert, in its report Ex.PW6/A clearly mentioned that:
"The .315"/8mm countrymade pistol (marked W/1) contained in the above mentioned parcel is designed to fire .315"/8mm cartridges and is, therefore, "Fire-arm" as defined in the Arms Act 1959, is in working order and had been fired through".
and thus it is clear that arms recovered from the possession of accused Akash Akash @ Arun Kumar covered under Arms Act, 1959. PW-8 Sh. Surender, IPS, after going through the record, accorded the sanction under Sec. 39 Arms Act to prosecute accused Akash @ Arun Kumar. As such, accused Akash @ Arun SC No. 1089/16 State Vs. Akash etc. Page 10 of 11 Kumar liable to be held guilty for the offence punishable under Sec. 25/54/59 Act.
21. In view of the over all circumstances and facts of the case, court is of the view that prosecution has also been able to prove its case against accused persons for the recoveries effected from them. As such, accused Akash @ Arun Kumar is held guilty for the offence punishable under Sec. 25 Arms Act; accused Rahul @ Tapan and accused Avinash are held guilty under Sec. 411 IPC sepreately and are convicted accordingly.
Announced in open court on 16th day of January, 2018 (Dr. Satinder Kumar Gautam) ASJ-03 (East):
KKD Courts: Delhi.
SC No. 1089/16 State Vs. Akash etc. Page 11 of 11