Delhi District Court
Fir No. 01/2016 Ps : New Ashok Nagar State vs . Ravi @ Ganer & Anr. on 6 October, 2020
FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (EAST DISTRICT)
KARKARDOOMA COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Ravi @ Ganer & Anr.
FIR No. 01/2016
PS : New Ashok Nagar
U/s 394/411/34 IPC
Date of Institution : 07.10.2016
Date of reserving of order : 29.09.2020
Date of Judgment : 06.10.2020
CNR No. DLET-02-007877-2016
JUDGMENT
1. Serial No. of the case : 107/2017
2. Name of the Complainant : Sh. Laxmi Narayan
3. Date of incident : 01.01.2016
4. Names of the accused persons :
1. Ravi @ Ganer s/o Sh. Dayanand R/o Kalyan Singh's House, Near Axis Bank ATM, Dallupura Village, Delhi-110096.
2. Yogender s/o Sh. Surender Kumar R/o Tota Ram's House, Near Axis Bank ATM, Dallupura Village, Delhi-110096
5. Offence for which chargesheet has been filed : S.394/411/34 IPC
6. Offence for which charge Page 1 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 has been framed : S. 394/34, IPC
7. Plea of accused : Not guilty
8. Final Order : Convicted
9. Date of Judgment : 06.10.2020 BRIEF REASONS FOR ORDER:
1. Mr. Ravi @ Ganer and Yogender, the accused herein, have been charge-sheeted for committing offence punishable under Section 394/411/34 Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that during the intervening night of 31.12.2015- 01.01.2016, complainant Laxmi Narayan was returning to his home after completing his duty at Safdarjung Club, Delhi. At about 2.45 a.m. when he was walking on the road, near Axis Bank ATM, Timber Market, both the accused persons stopped him. They demanded money from him stating that they had to drink liquor. The complainant told them that he did not have money. Both the accused persons started beating him. They had also stolen a sum of Rs.1000/- from his pocket. They also tried to snatch his mobile phone. However, the complainant was able to remove himself from their clutches and he called the PCR after running for some distance.
Police officials reached there. At the instance of the Page 2 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 complainant, both the accused were apprehended. Stolen money was recovered from the possession of the accused persons. Present FIR was registered on the basis of the statement of the complainant. The investigation was initiated. Both the accused were arrested. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused were charge- sheeted for committing the offence punishable under Section 394/34, the Indian Penal Code.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. The accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 394 IPC was framed against accused Ravi @ Ganer and Yogender. It was read over to them, to which they pleaded not guilty and claimed trial.
4. Matter was fixed for prosecution evidence.
Prosecution has examined 4 witnesses to prove its case.
5. PW-1 Sh. Laxmi Narayan is the complainant. He would depose that at the time of incident, he was working as a waiter. On 01.01.2016 after discharging his duty from Page 3 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 Safdarjung Club, he was returning to his house. At about 02:45 a.m., he deboarded his cab at Lakkad Market, Dallupura and started walking towards his home. When he reached near Axis Bank ATM, he found both the accused sitting there. Both the accused persons stopped him and asked money for consuming liquor on account of new year. He flatly refused to pay money. Then accused Ravi caught hold of him and accused Yogender gave 'lathi' blow on his back. Accused persons forcibly took out Rs. 1000/, one currency note of Rs. 500/- and 5 currency notes of Rs. 100/-, from right side pocket of his wearing pants. Thereafter, the accused persons tried to snatch his mobile phone. However, he got himself free from the clutches of the accused persons and escaped from there. Thereafter, he called PCR. A PCR van arrived there along with local police officials. The police officials made inquiry from him. Thereafter, he along with police team reached near the place of incident i.e. near Axis Bank ATM, where both the accused persons were sitting. Police officials overpowered both the accused persons. Police officials took search of the accused persons and recovered Rs. 1000/- from their possession. He did not exactly remember as to what amount was recovered from which accused. The police officials seized Rs. 1000/- vide Page 4 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 memo Ex. PW-l/A. On inquiry, the accused persons revealed their names as Ravi and Yogender. Police recorded his statement Ex. PW-1/B. He had shown the place of incident to the police officials. The police officials arrested both the accused persons vide memos Ex. PW-l/C and Ex. PW-l/D.
6. PW-1 identified the currency notes of Rs. 500/- and 100/- as robbed amount which were robbed by the accused persons. Currency note of Rs. 500/- is Ex. P-1 and currency notes of Rs. 100/- are Ex. P-2. (colly).
7. PW-2 Ct. Ram Naresh is the police official who had joined the investigation. He would depose that after receiving DD No. 14A, he along with the IO reached at Peepal Chowk. Dallupura, where they met with complainant Laxmi Narayan. They apprehended the accused persons at the instance of the complainant. During their search, one note of Rs. 500/- was recovered from the possession of accused Yogender and Rs. 500/- (in the denomination of Rs. 100/-) were recovered from the possession of accused Ravi. IO seized abovesaid recovered money vide memo Ex. PW-1/ A. Thereafter, IO recorded statement of the complainant. Ct. Harsh took complainant to the hospital for his medical examination. IO handed over a tehrir to him for registration of FIR. After registration of the FIR, he returned at the spot Page 5 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 and handed over copy of FIR and tehrir to the IO. The IO arrested the accused persons vide memos Ex. PW-1/C and PW-l/D. The IO recorded disclosure statements Ex. PW-2/A and PW-2/B of accused persons.
8. PW-3 SI Jahid Hussain is the Duty Officer. He has proved the recording of DD no. 14A, copy of which is Ex. PW-3/1 (OSR), the FIR no. 01/2016, PS New Ashok Nagar, Ex. PW3/A (OSR), certificate u/s 65 B of Indian Evidence Act Ex.PW-3/B, and endorsement on rukka as Ex.PW-3/C.
9. PW-4 SI Ranvir Singh was the Investigating Officer of the case. He has deposed similar to PW2. He has also proved statement of the complainant, Ex. PW-1/B, the rukka Ex.PW-4/A, the site plan Ex. PW-4/B, seizure memo of the case property Ex. PW-1/A, arrest memos Ex.PW-1/C and Ex.PW-1/D, personal search memos Ex PW-4/C and Ex.PW4/D, disclosure statements Ex.PW2/A and Ex.PW2/B. He had prepared the challan and filed in the court.
10. The accused had admitted, under Section 294, the Cr.P.C., the MLC of the complainant and it is Ex. A-1.
11. The witnesses were cross examined. The prosecution evidence was closed. The accused were examined U/s 313 Cr. P.C. r/w Section 281 Cr.P.C. The accused denied the Page 6 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 incriminating evidence. They would state that they were innocent.
12. The accused did not lead any defence evidence.
Therefore, matter was fixed for final arguments.
13. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused were caught by the IO at the instance of the complainant on the spot. The testimonies of the witnesses have proved beyond reasonable doubts that the accused in furtherance of their common intention had committed robbery and caused hurt to the complainant. The recovery has also been proved beyond reasonable doubts. Hence, the prosecution has proved all the ingredients of the offence punishable under Section 394/34, IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
14. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. Nothing was recovered from the possession of any of the accused. Alleged recovery has been planted upon them. The complainant had quarreled with the accused Page 7 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 persons on a previous occasion and he had threatened them to implicate in a false case. No other public witness has been joined by the IO. The complainant is an interested witness. Hence, it is prayed, the benefit of doubts may be given to the accused and they may be acquitted.
15. I have heard the rival submissions and carefully perused the material available on record.
16. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
17. In the present case, the accused have been charged for committing offence punishable under section 394/34, IPC. Section 394 IPC provides punishment for voluntarily causing hurt to another in committing or in attempting to commit robbery. Section 390 defines robbery. The Section reads as under:
"Robbery In all robbery there is either theft or extortion. When theft is robbery - 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, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or instant Page 8 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 wrongful restraint. When extortion is robbery Extortion is 'robbery' if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted".
18. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as it were done by him alone.
19. In the present case, the prosecution has alleged that the accused persons, in furtherance of their common intention, had committed robbery of the money from the pocket of the complainant. For the said purpose they had voluntarily caused hurt to the complainant by beating him. It is also case of the prosecution that the money was recovered from the possession of the accused persons after they were apprehended at the spot.
20. Complainant Laxmi Narayan, PW-1, in his testimony has deposed that when he was walking towards his home, both the accused persons had stopped his way and demanded money for purchasing liquor. When he refused to pay any money, the accused persons had caught hold of him and hit Page 9 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 with a stick on his back. They had also stolen a sum of Rs.1,000/- from his pocket. He had called the PCR and the police officials had apprehended both the accused persons at his instance. The stolen money was also recovered from their possession.
21. The witness was cross-examined. However, nothing contradictory has come in his cross-examination. PW2 and PW3 have also corroborated the testimony of PW1 as regards the apprehension of the accused persons and the recovery of the stolen money.
22. Ld. Counsel for the accused has taken the defence that no other public witness has been examined by the prosecution to corroborate the testimony of the complainant. Hence, reasonable doubt has been raised on his testimony.
23. I have considered the argument. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of a victim, the Court has to bear in mind that the presence of Page 10 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the accused persons. Being the victim of the crime, he would be most keen to ensure that the real culprits do not go scot free. The testimony of PW1 is cogent and convincing. I do not find any major contradiction in the testimonies of PW1 and other material on record. There might be some minor contradictions in the testimonies of the witness as argued by Ld. Defence Counsel. However, they are not material in nature. Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, has observed as under :-
"19. 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 Page 11 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the Page 12 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. 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 exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".
24. In the present case also, there is no reason to doubt the testimony of the complainant who is also victim of the crime.
25. The accused persons, during their examinations under Section 313 Cr.P.C., have stated that they had not committed any offence. They had stated that they were at their respective homes when the police officials had called them in the PS. They were asked to sign some papers with assurance that they would be free to go thereafter. Instead, they were implicated in the present case. During Course of the arguments, Ld. Defence Counsel has also argued that there was previous enmity between the complainant and the accused persons and therefore he had falsely implicated Page 13 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 them.
26. Thus, there are two defences raised by the accused persons. One is that of previous enmity which is argued by Ld. Defence Counsel. However I do not find any substance in the said argument. The said defence has been raised for the first time at the stage of final arguments. No such suggestion was given to the complainant at the time of his cross examination. Even in their examinations under Section 313, Cr.P.C. none of the accused has stated that there was any previous enmity between them. There is nothing on Court record to show that the complainant and the accused were known to each other prior to the incident in question and that there was enmity between them. The burden to prove the said defence was on them. The second defence taken by the accused persons is that they were not present at the spot and that they were at their homes. Thus they have taken a plea of alibi. The burden to prove the said defence was also on the accused persons. The accused, however, have not led any evidence to prove their defence. It is settled position of law that statements made during examination under Section 313 Cr. PC are not evidence. They have not been made on oath. They have not been tested on the touchstone of cross-examination. Hon'ble High Court of Page 14 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
27. In the present case also, for the aforesaid reason, the statements made by the accused persons during their examinations under Section 313 Cr.P.C., can't be considered evidence. Those statements have not been made on oath. No opportunity was given to the opposite party to check the veracity of those statements by way of cross-examination. On the other hand, there is statement of victim on record which has been made on oath. The law is settled that testimony of an eyewitness/victim should be believed unless Page 15 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 there is specific reason on record to disbelieve him or her. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
28. In the present case also, the testimony of PW1 is cogent and convincing. Presence of the complainant and the accused persons is also corroborated by the testimonies of PW2 and PW4. There is no reason to doubt their testimonies. The accused persons, on the other hand, have failed to prove their defence even on the preponderance of probabilities.
29. In theses circumstances, I hold that it has been proved, beyond reasonable doubts, that accused Ravi and Yogender had been apprehended on the spot at the instance of the complainant and that the case property had been Page 16 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 recovered from their possession. PW-1 in his testimony has specifically stated that he had been stopped by both the accused persons and they had demanded money from him. When he had refused to pay the money, accused Ravi had caught hold of him and accused Yogender had given a lathi blow in his back. They had also taken Rs.1000/- from his pocket. Thus the testimony of the PW1 has proved beyond reasonable doubts that in order to committing the theft, the accused persons, for that end, had voluntarily caused hurt to the complainant. The common intention of both the accused persons to cause hurt to the complainant to commit theft also stands proved by the testimony of PW1. These facts are sufficient to prove the ingredients of the offence punishable under Section 394 /34, IPC.
30. In the light of the discussions herein-above, I hold that the prosecution has proved beyond reasonable doubt that the accused persons, in furtherance of their common intention, had committed offence of robbery by stealing the money from the pocket of the complainant and by causing hurt to the complainant while committing the robbery. Thus, all the ingredients of the offence punishable under Section 394/34 IPC have been proved by the prosecution beyond reasonable doubts. Accused Ravi and Yogender are found Page 17 of 18 ACMM/EAST/KKD/06.10.2020. FIR No. 01/2016 PS : New Ashok Nagar State Vs. Ravi @ Ganer & Anr.
CNR No. DLET-02-007877-2016 : CR Case no.107/2017 guilty and they are accordingly convicted for the offence punishable under Section 394/34 IPC.
31. Let the parties be heard on the quantum of sentence.
Copy of the judgment given free of cost to the convicts. Pronounced in open Court through Video Conferencing on this 6th day of October 2020.
Digitally signed by DINESH KUMARDINESH KUMAR Date: 2020.10.06 17:59:39 +05'30' (Dinesh Kumar) Additional Chief Metropolitan Magistrate (East) Karkardooma Courts Complex, Delhi.
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