Delhi District Court
State vs Naveen Kumar on 15 March, 2024
:1:
IN THE COURT OF MS.SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI
COURTS, DELHI.
CNR No. DLWT01-010430-2017
Sessions Case No. 676/2017
FIR No. 261/2017
Police Station Anand Parbat
U/s 392/397/34 IPC & 25/27 Arms Act
State
v.
(1) Naveen Kumar
S/o Sh.Tika Ram
R/o H.No. J-83, Gali No.4,
Punjabi Basti, Anand Parbat,
Delhi.
(2) Vinay
S/o Sh.Subhash Kumar
R/o H.No. 16/1657, Gali No. 19,
Arya Samaj Road, Bapa Nagar,
Karol Bagh, Delhi.
(3) Suraj
S/o Sh.Suresh Kumar
R/o H.No. 16/1657, Gali No. 19,
Arya Samaj Road, Bapa Nagar,
Karol Bagh, Delhi.
(4) Arun
S/o Sh. Harbans Lal
R/o H.No. J-83, Gali No.4,
Case No. 676/2017
State v. Naveen Kumar & others
:2:
Punjabi Basti, Anand Parbat,
Delhi.
Date of Institution : 07.10.2017
Date of committal : 18.11.2017
Charge framed under Section :
Accused Naveen U/s 397, 392/34 IPC & Section 25/27
Arms Act.
Accused Suraj U/s 397, 392/34 IPC & Section 25
Arms Act.
Accused Vinay U/s 392/34 IPC
Accused Arun U/s 392/34 IPC
Date of conclusion of final arguments
and reserving Judgment : 02.03.2024
Date of Pronouncement of Judgment : 15.03.2024
Final Judgment :Accused persons
namely Naveen Kumar,
Vinay, Suraj and Arun
are held guilty and
convicted for the
abovesaid Charges.
JUDGMENT
Brief Facts :
1. Accused persons namely Naveen Kumar, Vinay, Suraj and Arun have been facing trial for the Charge as mentioned above for Case No. 676/2017 State v. Naveen Kumar & others :3: committing robbery on 08.08.2017 at about 11:30 PM near HDFC Bank, New Rohtak Road, Anand Parbat, Delhi upon the complainant Ravi Shankar of his mobile phone make Samsung Duos and wallet containing Rs. 250/-- Rs.300/- and some documents in furtherance of their common intention. While committing said robbery, accused Naveen and Suraj had also used pistol and buttondar knife respectively which are deadly weapon. After the incident, on the same day, one improvised pistol with Magazine and one buttondar knife were also recovered from the possession of accused Naveen Kumar and Suraj respectively.
Registration of FIR and investigation conducted at the spot :
2. As per the Prosecution, on 08.08.2017, an information was received vide DD no. 41A and SI Vidyakar Pathak alongwith HC Ashok reached at the spot where complainant Ravi Shankar Prasad was present alongwith the police staff and four accused persons namely Vinay s/o Sh. Subhash, Naveen s/o Sh. Tikka Ram, Arun s/o Sh. Arvind and Suraj S/o Sh. Suresh, who disclosed their names and addresses. From the personal search of accused Suraj, one black colour buttondar knife was recovered from his pocket and from the possession of accused Arun, robbed purse containing three notes of Rs. 10-100 and some documents. The said knife, cash and documents were Case No. 676/2017 State v. Naveen Kumar & others :4: taken into possession by the police. Thereafter, from the search of accused Vinay, one mobile phone which was robbed from the complainant was also recovered. Statement of the complainant was recorded and FIR bearing No. 261/2017 for the offence punishable u/s 392/397/411/34 IPC and Section 25/27 Arms Act was registered against the accused persons.
Statement of Complainant Sh.Ravi Shankar Prasad recorded during investigation :
3. Thereafter, IO/SI Vidyakar Pathak recorded the statement of complainant Sh.Ravi Shankar Prasad u/s 161 Cr.P.C., wherein he stated that he used to teach Physics at Fitjee Coaching Centre Kale Sarai and had to go for an interview in another Coaching Institute situated at Bikaner, Rajasthan and therefore, he came to Sarai Rohilla Railway Station for boarding the train to Bikaner, which was scheduled to departure at 11:30 PM. He further stated that he came outside the station at New Rohtak Road in search of Dhaba for dinner but did not find any Dhaba and therefore, he proceeded towards station at about 09:30 PM.
When he reached near HDFC Bank, New Rohtak Road, four boys came to him and one of them had put knife on his neck and another boy took out his mobile phone make Samsung Duos black colour from the pocket of his pants. One of them Case No. 676/2017 State v. Naveen Kumar & others :5: took out his black colour purse containing Rs. 250/- to Rs.300/-, photocopy of his Aadhar Card and some documents from the back side pocket of his pant. He further stated that when he raised an alarm, one of the boys fired from the pistol in air, upon which some public persons and traffic police came at the spot and apprehended one boy at the spot. Public persons had also given beatings to the said boy and he disclosed his name as Vinay. He further stated that from the search of accused Vinay, robbed mobile phone of the complainant was recovered. Thereafter, on hearing the bullet fire, the police officials who were on patrolling duty, had also apprehended the other three boys and they disclosed their names as Suraj, Naveen and Arun. Accused Naveen had fired in the air.
Further investigation conducted after recording the statement of complainant:
4. After registration of FIR, the investigation was handed over to SI Shiv Prakash who alongwith HC Ashok reached at the spot of incident i.e., near HDFC Bank, New Rohtak Road where SI Vidyakar Pathak handed over the custody of all the four accused persons to SI Shiv Prakash alongwith recovered articles. Thereafter, SI Shiv Prakash prepared the site plan of the spot at the instance of complainant. Crime team was called Case No. 676/2017 State v. Naveen Kumar & others :6: who inspected the spot and during investigation, one empty cartridge was recovered. SI Shiv Prakash had prepared its sketch and its length was 1.7 cm and width was 0.8 cm. The said empty cartridge was taken into possession by SI Shiv Prakash after sealing it with the seal of APRVT-II. Thereafter, during investigation, all the accused persons had interrogated by SI Shiv Prakash who disclosed their involvement in the present case. The information was given to the family members of accused persons about their arrest. Thereafter, all the accused persons were brought to Police Station and case property was deposited in the Malkhana. The medical examination of all the accused persons were got conducted and sent to J.C.
5. During investigation, at the instance of accused Naveen, one pistol was recovered from a Pit situated at New Rohtak Road, near Sarai Rohilla Bus Stand and disclosed that this is the same pistol with which he had fired while committing robbery upon the complainant on the date of incident. IO/SI Shiv Prakash checked the pistol and found the Magazine empty. He prepared the sketch of said pistol and took the same into possession after sealing the same in pullanda with the seal of APRVT-II.
Thereafter, all the four accused persons out of whom three were in muffled face as they had disclosed about their involvement in another case bearing FIR no. 213/2017 u/s 394/398/34 IPC, Case No. 676/2017 State v. Naveen Kumar & others :7: were produced before the concerned Court and from there, they were sent to Judicial custody. Two days police remand were taken of accused Naveen. Thereafter, during investigation, recovered pistol and empty cartridge were sent to FSL and on the request of FSL, four live cartridges were also sent to them after seeking permission of the concerned branch through Ct.Ankit on 27.09.2017. Thereafter, on completion of investigation, charge-sheet for the offences punishable u/s 392/397/411/34 IPC and Section 25/27 Arms Act against the accused persons.
The Trial Charge :
6. Charge for the offence punishable under sections 392/34 IPC was framed against all the accused persons namely Naveen, Vinay, Suraj and Arun; Charge for the offence punishable under section 397 IPC and section 25/27 Arms Act against accused Naveen and Charge for the offence punishable under section 397 IPC and section 25 Arms Act against accused Suraj by the Ld. Predecessor Court on 15.02.2018 and 09.01.2020, to which they pleaded not guilty and claimed trial.
7. However, during perusal of file, it has surfaced that inadvertently, time has been mentioned wrongly in the Charge framed u/s 392/397 IPC as the alleged offence was committed Case No. 676/2017 State v. Naveen Kumar & others :8: at around 09:30 PM whereas in the Charge, the time has been mentioned as 11:30 PM, which is the time of departure mentioned in the rukka. Ld. Addl. P.P. for the State submits that this error is well covered by Section 464 Cr.P.C. as there is no failure of miscarriage of Justice due to the said time error since all the prosecution witnesses have specifically deposed the correct time in their testimonies. Therefore, there is no need for alteration of Charge. Even on inquiry, the Defence Counsels have not opposed the same by stating that the date and time of offence is well within the knowledge of accused persons since beginning as per the Charge-sheet and testimonies of prosecution witnesses.
Prosecution evidence :
8. To prove its case against the accused persons, the prosecution had examined 12 witnesses, that is, PW-1 HC Shri Krishan (duty officer), PW-2 ASI Bal Kishan (apprehended accused Vinay at the spot), PW-3 Sh.Ravi Shankar Prasad (complainant/victim), PW-4 Ct Ankit Tomar (deposited two sealed parcels and four live cartridges in the FSL), PW-5 HC Prem Pal Singh (MHC/M), PW-6 HC Ashok (joined investigation with the IO), PW-7 Ct. Naveen (apprehended accused persons namely Suraj, Arun and Naveen), PW-8 Ct.
Ramji Lal (apprehended accused Suraj, Arun and Naveen Case No. 676/2017 State v. Naveen Kumar & others :9: alongwith PW-7 Ct.Naveen), PW-9 SI Vidyakar Pathak (1st IO), PW-10 SI Shiv Prakash (2nd IO), PW-11 Sh.Avinash Srivastava, (SSO (Ballistics), FSL, Rohini) and PW-12 Sh. Anto Alphonse (DCP, Dwarka, New Delhi).
9. PW-1 HC Shri Krishan is duty officer, who had deposed that on 08.08.2017, at about 09:56 PM, he recorded DD no.42A, proved as Ex.PW-1/A on the basis of message received from Wireless Operator regarding apprehension of a snatcher by traffic staff. He gave the said message to HC Ratan for making inquiry and after discussion with the SHO, he/PW-1 gave the message to SI Vidyakar Pathak for making inquiry. He further deposed that on the same day, at about 11:50 PM, he received rukka from HC Ashok sent by SI Vidyakar Pathak and on the basis of which, he got recorded the FIR of the present case through Computer operator and copy of the same is proved as Ex.PW-1/B. He made his endorsement on the rukka, proved as Ex.PW-1/C. He further deposed that after recording of the FIR, he handed over the copy of FIR and rukka to HC Ashok to handover the same to SI Vidyakar Pathak for investigation.
10.PW-2 ASI Bal Kishan is the traffic staff, who had deposed that on 08.08.2017, he was on duty at Kamal T-Point, New Rohtak Road, Delhi and at about 09:00/09:30 PM, he heard noise 'Chor Chor' and on hearing the same, he saw that some public persons Case No. 676/2017 State v. Naveen Kumar & others : 10 : were chasing a boy and as he reached near the T-point, he/PW-2 apprehended that boy. He further deposed that he interrogated him and his name was revealed as Vinay. Complainant Sh. Ravi Shankar also reached there alongwith public persons and he came to know from the complainant that accused Vinay had robbed his mobile phone alongwith his other three associates and on taking his formal search, one mobile phone and purse were recovered from his possession and same were identified by the complainant. He further deposed that in the meantime, beat staff also reached there and they brought three other remaining accused persons who were also involved in the incident of robbery and the complainant had also identified them. Crowed gathered there and he called the police on 100 number.
10.1. PW-2 further deposed that PCR as well as the local police reached there and he handed over the accused Vinay alongwith the recovered articles from accused Vinay to the IO. The beat staff had also handed over the other three accused persons to the IO. IO arrested the accused Vinay vide arrest memo, proved as Ex.PW-2/A, pursuant to his personal search vide personal search memo, proved as Ex.PW-2/B. Thereafter, he left the spot and later on, IO recorded his statement in the Police Station. PW-2 had correctly identified accused Vinay before the Case No. 676/2017 State v. Naveen Kumar & others : 11 : Court. He had also identified the case properties i.e. one purse of black colour containing some documents, Rs.300/- (100x3), one Election I Card of Ravi Shankar Prasad, photocopy of Aadhar Card of Ravi Shankar Prasad, ATM Card of IDBI Bank, some visiting cards etc., as Ex.PW-2/P1 (colly.) and the mobile phone recovered from the possession of accused Vinay as Ex.PW-2/P2.
11.PW-3 Sh. Ravi Shankar Prasad is complainant/victim and he has deposed that he is a senior Lecturer of Physics in FIITJEE at Chennai. On 08.08.2017, he was going to Bikaner and had to board the train from Sarai Rohilla Railway Station, Delhi which was scheduled at 11:30 pm. He has further deposed that at about 09.00 pm, he reached Sarai Rohila Railway Station and came out from the Railway Station to take the dinner and try to search the hotel/dhaba outside the station but no dhaba/hotel was found there. Thereafter, while he was returning to the Railway Station and passing through the HDFC Bank ATM, four boys met him there. One of them pushed him and another boy put the knife on his neck. He has further deposed that the first boy who pushed him asked him as to why he pushed him and on this, he replied that he did not push him rather he/the said boy pushed him. Thereafter, all he four boys took him aside in a dark place on the point of knife near the wall. They Case No. 676/2017 State v. Naveen Kumar & others : 12 : removed his purse containing one Pan Card, two ATM Cards, one Voter I-Card, cash Rs. 250/- - Rs.300/-, photocopy of Aadhar Card, some other documents and mobile phone from the pocket of his Jeans Pants. One of the boy had also put pistol on him during the said robbery. The boy, who had put the pistol on him, fired in the air and had threatened him to leave from there and not to see back. Thereafter, all the four boys left from there and while they were fleeing from there, he raised alarm and chased them but the accused persons had crossed the road.
11.1. He has further deposed that one traffic police official, who was present near the spot, on hearing the alarm also chased them and apprehended one of the accused. In the meanwhile, he had also reached there. Other public persons also gathered there and they beaten the accused. He has further deposed that his mobile phone make Samsung DUOS of black colour containing sim of Airtel bearing no.7869357948 was recovered from his possession. On interrogation, the name of the accused was revealed as Vinay. The remaining three accused persons fled away from there alongwith his purse and their names revealed as Suraj, Arun and Naveen. The traffic police official called the police on 100 number. IO of this case alongwith police staff reached there and recorded his statement which is Case No. 676/2017 State v. Naveen Kumar & others : 13 : proved as Ex.PW3/A. 11.2. He has further deposed that the accused Vinay, who was apprehended at the spot, had removed his mobile phone from the pocket of his Jeans pants. IO seized his above said mobile phone vide memo, proved as Ex.PW-3/B. He has further deposed that IO had also inspected the spot and prepared site plan, proved as Ex.PW3/C. IO had also arrested the accused Vinay vide arrest memo, proved as Ex.PW-2/A and his personal search was conducted vide memo, proved as Ex.PW- 2/B. PW-3 has correctly identified accused Vinay before the Court.
11.3. He has further deposed that IO had also interrogated the accused Vinay in the Police Station. Thereafter, they alongwith the accused Vinay again visited the spot. One empty cartridge was also recovered from the spot. The sketch of the same was prepared by the IO and IO seized the same and kept the empty cartridge in a plastic container which was sealed in a cloth parcel. Thereafter, they returned to Police Station. After about one and half hour, the police officials brought remaining three accused persons in the Police Station and he identified them. PW-3 had also correctly identified the remaining three accused persons before the Court. PW-3 has also pointed towards accused Arun and stated that he had removed his purse. He Case No. 676/2017 State v. Naveen Kumar & others : 14 : further deposed after pointed out towards accused Suraj that he had put the knife on him. He also pointed out towards the accused Naveen and stated that he fired the bullet in the air. He has further deposed that his purse was recovered from the pocket of Pants of accused Arun containing Rs.300/-, Election I/D Card, photocopy of Aadhar Card, ATM of IDBI Bank, some visiting cards and one slip and the same were seized by the IO vide memo, proved as Ex. PW-3/D after sealing the same in a cloth parcel. He has further deposed that the knife was recovered from possession of accused Suraj and IO prepared the sketch of the same, proved as Ex.PW-3/E, sealed the same and seized the same vide memo, proved as Ex.PW-3/F. He has further deposed that IO had arrested the accused Arun and Suraj vide their arrest memos, proved as Ex.PW-3/G and Ex.PW- 3/H respectively and their personal searches were conducted vide memos, proved as Ex.PW-3/I and Ex.PW-3/J respectively. He has further deposed that accused Naveen was also arrested vide arrest memo, proved as Ex.PW-3/K and his personal search was conducted vide memo, proved as Ex.PW- 3/L. PW-3 has also correctly identified the case properties i.e., mobile phone as Ex.PW-2/P2; one purse of black colour containing his Voter I-Card, Rs.300/- (100 x 3); Master Card of IDBI Bank; some visiting cards, some slips etc.;
Case No. 676/2017State v. Naveen Kumar & others : 15 : photocopy of his Aadhar Card as Ex.PW-2/P1 (Colly.); Knife as Ex.PW-3/P1 and one empty case of cartridge which was recovered from the spot as Ex.PW-3/P2, before the Court.
12.PW-4 Ct. Ankit Tomar is posted at Police Station Anand Parbat who had deposed that as per the instructions of the IO, he brought four live cartridges of 7.65 mm from Old Police Line and deposited the same in the Malkhana of Police Station Anand Parbat. He further deposed that thereafter, on the same day, as per the directions of the IO, he received two sealed parcels having seal of APRVT-II and the said four cartridges from the MHC(M) alongwith the FSL form vide RC No. 74/21/17 and deposited the same in the office of FSL, Rohini and handed over the receipt and copy of RC to the MHC(M). He further deposed that so long as the parcel remained in his custody, the same were not tampered with in any manner and remained intact.
13.PW-5 HC Prem Pal is the MHC(M) at Police Station Anand Parbat and he had deposed that on the instructions of the Investigating Officer, he handed over four cartridges to Ct.Ankit which he brought from Old Police Lines and two parcels having seal of APRVT-II and FSL form vide RC no. 74/21/17 to deposit in the office of FSL, Rohini. He further deposed that thereafter Ct. Ankit deposited the said parcels and Case No. 676/2017 State v. Naveen Kumar & others : 16 : said live cartridges in the FSL and handed over the receipt and copy of RC to him. He further deposed that so long as the parcel remained in his custody, the same were not tampered with in any manner and remained intact.
14.PW-6 HC Ashok has joined the investigation of the present case alongwith IO/SI Vidyakar Pathak and had deposed that on 08.08.2017, he was performing emergency duty at the Police Station alongwith SI Vidyakar Pathak, who received copy of DD No.42A regarding robbery and therefore, he alongwith SI Vidyakar Pathak reached at Sarai Rohilla Bus Stand near HDFC Bank, New Rohtak Road, Anand Parbat, Delhi, where ASI Bal Kishan, Ct. Naveen, CL Ramji Lal alongwith complainant Ravi Shankar Prasad met them. He has further deposed that complainant produced his mobile phone to the IO and stated that the same has been recovered from accused Vinay. There were total four accused persons namely Vinay, Suraj, Naveen and one fourth accused, whose name he did not remember were in custody of aforesaid police officials when they reached at the spot.
14.1. He has further deposed that thereafter, SI Vidyakar Pathak conducted the personal search of accused Suraj and recorded the statement of the complainant Ravi Shankar Prasad, made his endorsement on the same and gave original tehrir to Case No. 676/2017 State v. Naveen Kumar & others : 17 : him/PW-6 for getting the case registered. He has further deposed that he went to Police Station Anand Parbat, handed over the original Tehrir to Duty officer who got recorded the present FIR and after registration of FIR, duty officer gave him/PW-6 the original tehrir and computerized copy of the FIR to handover the same to SI Shiv Prakash at the Police Station itself. He has further deposed that thereafter, he alongwith SI Shiv Prakash went at the spot. Mobile crime team also reached at the spot. They conducted search at/near the spot and after some time, one empty used case was recovered from there. IO/SI Shiv Prakash kept the abovesaid used case in plastic transparent container, sealed the same with the seal of APRVT- II and the same was also seized by the Investigating Agency. He has further deposed that SI Vidhyakar Pathak handed over the documents to SI Shiv Prakash and thereafter, they all the police officials brought all the four accused persons to Police Station. Investigating Officer interrogated all the four accused persons and then prepared the arrest memos of all the four accused persons, proved as Ex.PW-6/A to Ex.PW-6/D. 14.2. He has further deposed that one black colour purse was recovered from the right pocket of Pants of accused Arun and the purse contained Rs.300/- (in the denomination of Rs.100 each), Voter I-card and ATM card of IDBI Bank, some visiting Case No. 676/2017 State v. Naveen Kumar & others : 18 : cards. The said purse was seized vide seizure memo, proved as Ex.PW3/D after sealing same in white paper and cloth with the seal of APRVT II. He has further deposed that One buttondar knife was recovered from the right pocket of pants of Suraj. IO prepared the sketch of the knife, proved as Ex.PW-3/E after sealing the same in cloth parcel with the seal of APRVT II. IO prepared seizure memo of the same proved as Ex.PW-3/F. He has further deposed that the mobile phone which was produced by the complainant was kept in cloth parcel and it was also sealed with the seal of APRVT II and it was taken into possession through separate seizure memo proved as Ex.PW3/B. He has further deposed that IO had also prepared the sketch of the empty cartridge which was recovered from the spot vide memo, proved as Ex.PW-6/E and seized the same vide seizure memo proved as Ex.PW-6/F. He has further deposed that accused persons namely Vinay, Suraj and Arun were sent to hospital for their medical examination. IO interrogated the accused Naveen separately and he disclosed that he can get the used pistol recovered. Thereafter, he/PW-6 alongwith IO/SI Shiv Prakash and accused Naveen went at Sarai Rohilla Bus Stand and at the pointing out of accused Naveen, one pistol was recovered from a pit. IO/SI Shiv Prakash checked the pistol. There was no cartridge in the Case No. 676/2017 State v. Naveen Kumar & others : 19 : Magazine of the pistol. IO prepared the sketch of the said pistol and the magazine, proved as Ex.PW-6/G. He has further deposed that thereafter, IO/SI Shiv Prakash kept the pistol and the magazine in the cloth parcel and sealed the same with the seal of APRVT II and seized the same through separate seizure memo, proved as Ex.PW-6/H. Thereafter, they came back to the Police Station. The case property was deposited in the Malkhana and accused was taken to hospital for his medical examination. This witness has correctly identified all the four accused persons before the Court. He has also correctly identified the case properties i.e., the Purse containing the abovesaid articles as Ex.PW-2/P1 (colly.); mobile Phone recovered from the possession of accused Arun as Ex.PW-2/P2; Knife Ex.PW-3/P1; one empty case of cartridge Ex.PW-3/P2 and one Pistol alongwith Magazine as Ex.PW-6/P1, before the Court.
15.PW-7 Ct.Naveen and PW-8 Ct. Ramjit Lal have deposed that on 08.08.2017, they both were on patrolling duty and reached at Rohtak Road at about 9.30 pm and in the meantime, they heard the noise of one gun shot. On this, they reached at HDFC bank at Rohtak Road where they found that there was crowd. They saw 2-3 persons starting running and they with the help of public persons apprehended three persons. He has further Case No. 676/2017 State v. Naveen Kumar & others : 20 : deposed that in the meantime. ASI Bal Kishan of Traffic police reached there and he had already apprehended one person. Public persons were also present there. ASI Bal Kishan called PCR police on 100 number, PCR police reached there. SI Vidhyadhar Pathak alongwith HC Ashok also reached there from local Police Station. The persons who were apprehended by both of them were produced to SI Vidyadhar Pathak and they were interrogated by him and their names were revealed as Suraj, Arun and Naveen. The name of the person who was apprehended by ASI Bal Kishan was revealed Vinay on interrogated by SI Vidyadhar Pathak On taking search of accused Suraj, one buttondar knife was recovered from his right side pocket of pants. They have further deposed that accused Arun was found in possession of purse, which found to contain one photocopy of Aadhar card, ATM and Rs. 300/- of complainant Ravi Shankar who was also present there and he had also identified the same. Thereafter, IO/SI Vidyakar Pathak prepared the sketch of the knife, seized the same and sealed the same in parcel. IO/SI Vidyakar Pathak also seized the purse of the complainant containing the said articles. Thereafter, IO recorded statement of complainant and same was handed over to HC Ashok for getting the FIR registered from Police Station Anand Prabat. PW-7 also called the crime team at the spot.
Case No. 676/2017State v. Naveen Kumar & others : 21 : Crime team reached the spot after one hour. One empty case of cartridge was also recovered from the spot and the same was seized by the Investigating Officer. HC Ashok returned back at the spot after registration of FIR and handed over copy of FIR and original rukka to the Investigating Officer. Thereafter, they brought all the accused persons and case property in the Police Station. Investigating Officer again interrogated the all four accused persons and thereafter, arrested them after confession their guilt and involvements in the present case. Accused Suraj who was apprehended by PW-7 at the spot was arrested vide arrest memo proved as Ex.PW3/H and his personal search was conducted vide memo proved as Ex.PW-3/J. Thereafter, all the four accused persons got medically examined from LHMC hospital and then sent to lock-up and their statements were recorded by the Investigating Officer. Both PW-7 and PW-8 have correctly identified all the accused persons before the Court.
16.PW-9 SI Vidyakar Pathak is 1st IO of this case and has deposed that On 08.08.2017, he received DD no. 42A, proved as Ex.PW-1/A and he along with HC Ashok visited the spot i.e, New Rohtak Road near HDFC Bank, where complainant Ravi Shankar, Ct. Naveen, one more Constable and ASI Bal Krishan of Traffic police met him there. They produced four Case No. 676/2017 State v. Naveen Kumar & others : 22 : accused persons before him and on interrogation, their names revealed as Naveen Kumar, Vinay, Suraj and Arun. He has further deposed that complainant had produced before him one mobile phone make Samsung and told that it was recovered from the possession of accused Vinay. He seized the same vide memo proved as Ex.PW-3/B. He has further deposed that he recorded the statement of complainant, proved as Ex.PW-3/A. He also conducted the formal search of all four accused persons and from the search of accused Arun, one purse of blue colour, containing Rs.300/- of denomination of 100 each, photocopy of Aadhar card, ATM of IDBI Bank and some visiting cards were recovered. He has further deposed that he seized the said articles vide memo proved as Ex. PW-3/D after sealing the same in cloth parcel with the seal of APRVT-II. He has further deposed that on the formal search of accused Suraj, one buttondar knife was recovered and he prepared the sketch of the same, proved as Ex.PW-3/E and seized the same vide memo proved as Ex.PW-3/F after sealing the same in cloth pacel with the seal of APRVT-II. He has further deposed that he endorsed the statements of complainant, proved as Ex.PW-9/A and sent the same to the Police Station through HC Ashok for registration of FIR. After registration of FIR, HC Ashok returned at the spot along with SI Shiv Prakash to whom the Case No. 676/2017 State v. Naveen Kumar & others : 23 : investigation was entrusted. He handed over all the documents, case property/ parcels of the case property and custody of accused person to SI Shiv Prakash. He also briefed SI Shiv Prakash about the facts of the case and thereafter, he left from there. PW-9 has correctly identified all the four accused persons before the Court. He has also correctly identified the case properties i.e., one black colour purse, one voter l-card in the name of Ravi Shankar Prasad, one master card of IDBI in the name of Ravi Shankar, one railway Tatkal séwa journey/reservation ticket, one photocopy of Aadhar card in the name of Ravi Shankar Prasad, three currency notes of Rs.100 denomination, some visiting cards, sliPolice Station etc. as Ex.PW-2/P1 (Colly.); Mobile phone which was recovered from the possession of accused Arun as Ex.PW-2/P2 and Knife Ex.PW-3/P1, before the Court.
17.PW-10 SI Shiv Prakash is the 2nd IO of this case, who has deposed about all the investigation conducted by him in the present case as per the final report. He has deposed that on 09.08.2017, at about 1.00 am, he received the copy of FIR and original rukka from HC Ashok for investigation. On receipt of the same, he along with HC Ashok reached at the spot i.e., at HDFC Bank, New Rohtak Road, where IO/SI Vidyakar Pathak, complainant Ravi Shankar and police staff met them and they Case No. 676/2017 State v. Naveen Kumar & others : 24 : produced four accused persons before him alongwith documents of this case and 3 parcels. Thereafter, he made inquiry from the complainant and inspected the spot at his instance and prepared site plan, proved as Ex.PW3/C. Thereafter, he seized one empty case of cartridge, which was found lying at the spot vide memo proved as Ex.PW-6/F and prepared its sketch proved as Ex.PW-6/E and kept the same in cloth parcel and sealed the same with the seal of APRVT-II. He has further deposed that he interrogated all the four accused persons namely Vinay, Suraj, Naveen and Arun Kumar and arrested them vide Arrest memos proved as Ex.PW-2/A, Ex.PW-2/H, Ex.PW-3/K and Ex. PW-3/G respectively, pursuant to their personal searches vide memos proved as Ex.PW-2/B, Ex.PW-3/J, Ex.PW-3/L and Ex.PW-3/I respectively. Thereafter, he alongwith police staff, complainant and accused persons returned to Police Station. He has further deposed that he recorded supplementary statements of the complainant Thereafter, he interrogated all the four accused persons and recorded their disclosure statements, proved as Ex.PW-6/A, Ex.PW-6/C, Ex.PW-6/D and ExPW-6/B respectively. He has further deposed that accused persons namely Arun, Vinay and Suraj had disclosed that they had committed another robbery in the area of Police Station Karol Case No. 676/2017 State v. Naveen Kumar & others : 25 : Bagh. Thereafter, he got medically examined all the accused from Govt. hospital and then sent to lockup. Thereafter, he/PW- 10 took accused Naveen at the spot near Sarai Rohilla bus stand and near the road from ditch (गढढढ) he took out one pistol and produced before him and stated that it is the same which he used during the commission of crime of this case. Same found to contain empty magazine. He has further deposed that he prepared the sketch of the same proved as Ex.PW6/G and seized the same vide memo proved as Ex.PW6/H and kept the same in the cloth parcel with the seal of APRVT-II. Thereafter, they returned to Police Station and accused Naveen was sent to lockup. PW-10 deposited the case property in the Malkhana and recorded the statements of witnesses.
17.1. He has further deposed that on the next day, he produced all the accused persons before the Court and amongst them, three were in muffled face except accused Naveen. He obtained two days PC remand of accused Naveen and remaining accused persons were sent to J/C. During the PC remand, he tried to know the place from where the accused Naveen purchased the katta but he did not cooperate in this regard. He recorded supplementary disclosure statement of accused Naveen, proved as Ex.PW-10/A. Thereafter, during investigation, he got procured four live cartridges from the OPL and sent the same Case No. 676/2017 State v. Naveen Kumar & others : 26 : alongwith parcels containing pistol and the empty cartridges to FSL, Rohini through Ct. Ankit. He recorded the statement of Ct.Ankit and the MHC(M). He has further deposed that after completing the investigation of the case, he filed the charge sheet of the present case against all the four accused persons. PW-10 has correctly identified all the four accused persons before the Court. He has further deposed that he collected the FSL result and then obtained Sanction u/s 39 of the Arms Act from the Additional DCP, Central District and thereafter, filed the FSL result and Sanction u/s 39 of the Arms Act in the Court vide application dated 13.09.2019, proved as Ex.PW-10/B.
18.PW-11 Sh.Avinash Srivastava is Senior Scientific Officer (Ballistics), FSL, Rohini, Delhi who had deposed that on 27.09.2017, one sealed plastic box and one sealed cloth parcel sealed with the seal of APRVT-II in connection with the present case alongwith four 7.65 mm cartridges (in unsealed condition) were received in the office of FSL for examination and same were marked to him. He further deposed that after opening the Parcels, Parcel no.1 was found to contain one 7.65 mm cartridge case marked as EC-1 and Parcel no.2 was found to contain one Improvised Pistol of 7.65 mm bore marked as Ex.F1. The test fire was conducted successfully with the Improvised Pistol. He further deposed that on examination of Case No. 676/2017 State v. Naveen Kumar & others : 27 : cartridge case marked as Ex.EC1, it was found that it has been fired through the Improvised Pistol marked as Ex-F1. The Pistol was found in working order and was a fire arm as defined in the Arms Act. EC1 is an Ammunition as defined in the Arms Act. He further deposed that after examination, he gave his detailed report, proved as Ex.PW-11/A and after examination, the fire arm as well as the empty cartridge case (EC1) were sealed with the seal of 'AS FSL DELHI'. PW-11 has correctly identified the Improvised Pistol as already Ex.PW-6/P1; Empty Cartridge Case as already Ex.PW-3/P2.
19.PW-12 Sh.Anto Alphonse, DCP Dwarka has deposed that on 05.04.2018, IO/SI Shiv Prakash produced the relevant documents i.e., copy of FIR, seizure memo, arrest memo, disclosure statement of accused Naveen alongwith FSL result dated 01.03.2018 and other documents pertaining to the present case before him and he perused all the abovesaid relevant documents and satisfied that accused Naveen Kumar s/o Sh. Tika Ram was having conscious possession of the fire arm i.e. Improvised Pistol on 08.08.2017 and the said fire arm was recovered on 09.08.2017 at the instance of accused Naveen Kumar. Therefore, he accorded Sanction u/s 39 of Arms Act on 13.04.2018 against accused Naveen for prosecution, proved as Ex.PW-12/A. Case No. 676/2017 State v. Naveen Kumar & others : 28 :
20.Prosecution evidence was closed vide order dated 05.08.2023 on submissions of Ld. Addl. PP for the State that all the prosecution witnesses have been examined.
Statements of accused U/s 313 Cr.P.C. :
21.Statements of accused persons namely Naveen, Vinay, Suraj and Arun u/s 313 Cr.P.C were recorded on 09.10.2023, wherein all the incriminating material on record was put to them and they denied all the allegations levelled against them and stated that they were not present at the spot and have been falsely implicated in the present case. They also took the defence as follows :
21.1. Accused Suraj stated that at the time of incident, he was at his work place i.e. Tinku Snakes shop, Bapa Nagar, Baljeet Nagar, Anand Parbat, Delhi and after closing the shop at about 11:00 PM, he was returning to his house which was at a walking distance of about 20 minutes and on the way, he was arrested by the police officials.
21.2. Accused Vinay stated that the entire story is manipulated by the Prosecution. He was lifted from his house and falsely implicated in the present case. He further stated that nothing was recovered from his possession or at his instance. He was not present at the spot at the time of incident and was not Case No. 676/2017 State v. Naveen Kumar & others : 29 : arrested from the spot.
21.3. Accused Naveen stated that the recovery was falsely planted by the IO in the Police Station; he is innocent and has been falsely implicated in the present case and he had not committed any alleged offence.
21.4. Accused Arun also stated that he was not present at the spot at the time of incident and has been falsely implicated in the present case; he has been wrongly identified in the present case; accused Naveen is his cousin brother and when he was arrested in this case from his house, a call was received from him upon which he alongwith his mother came at his house where some arguments took place with the police and thereafter, they implicated him in the present case.
22.Accused Suraj and Arun stated that they wish to lead defence evidence and accused Naveen and Vinay stated that they do not wish to lead any evidence in their defence. However, on 08.01.2024, Sh. A.K.Tripathi, Advocate stated at Bar that accused Naveen, Suraj and Arun do not want to lead evidence in their defence and DE may be closed on their behalf and hence, vide order dated 08.01.2024, Defence evidence on behalf of all the accused persons were closed.Case No. 676/2017
State v. Naveen Kumar & others : 30 : Final Arguments:
23.The Court has heard the final arguments as advanced by Mr.M.A.Khan, Ld. Addl. P.P. for the State, Sh.A.K.Tripathi, Ld. Counsel for accused Naveen, Arun and Suraj and Sh.Vineet Jain, Ld. Counsel for accused Vinay and has gone through the entire material available on record including written submissions filed on behalf of all accused persons except accused Vinay.
Arguments addressed on behalf of the Prosecution by Mr.M.A.Khan, Ld.Addl. P.P. for the State :
24.It is argued by the Ld.Addl. P.P. for the State that in the present matter, the complainant PW-3 Sh.Ravi Shankar Prasad has supported the prosecution case and he has also identified all the four accused persons before the Court. He has further argued that the testimony of complainant as PW-3 has been well corroborated by the testimony of other witnesses. Thus, it is stated by the Ld. Addl. PP for the State that accused persons be convicted for all the offences for which they have been charged.
Arguments addressed on behalf of accused persons namely Naveen, Arun and Suraj :
25.It is stated by Sh. A.K.Tripathi, Ld.Counsel for accused Naveen, Arun and Suraj in written submissions filed on record that except the complainant examined as PW-3, all the Case No. 676/2017 State v. Naveen Kumar & others : 31 : witnesses of the prosecution are police officials. That from the perusal of statement of the complainant as PW-3, it is clear that there material contradictions. Even otherwise, PW-3 has not supported the case of the prosecution as he did not correctly identify the accused persons and there are doubts regarding committal of present offence by them. Further, as per cross-
examination of PW-6, it is clearly established on record that no recovery of mobile phone was affected from the possession of accused Vinay and the recovery of Pistol from accused Naveen; purse from accused Arun and knife from accused Suraj are planted by the prosecution. It has also been stated that no public persons is the witness to recovery memo which creates strong suspicion and doubt upon the prosecution story. It is further stated that the testimony of PW-7 and PW-8 cannot be relied by the Court as they are police officials and the story of the prosecution is concocted. The arrest memos of the accused persons are sufficient to show that the accused persons were arrested between 02:30 PM to 02:50 PM, which also creates doubt upon the prosecution story as it is stated that they were apprehended at the spot soon after the incident. Arguments addressed on behalf of accused Vinay :
26.It has been argued by the Ld. Counsel for accused Vinay that MLC of the accused Vinay has not been proved on record by Case No. 676/2017 State v. Naveen Kumar & others : 32 : the prosecution though it is the case of the prosecution itself that after he was apprehended, he was beaten by the public persons who had gathered at the spot. It has been further argued that neither the train tickets of the complainant have been seized by the IO or even photocopy has been filed on record nor it is clear from record that the complainant boarded the scheduled train to Bikaner on the day of alleged incident as it was stated to depart at 11:30 PM but as per record, the complainant was in the Police Station at that time for investigation of the present matter. It has been further argued that as per version of PW-2, the purse of the complainant was recovered from accused Vinay however, as per the recovery memo, the same has been proved to have been recovered from accused Arun. It has been further argued that PW-2 is not signatory to seizure memo of mobile phone hence, his presence at that time is doubtful. He has also argued that as the complainant/PW-3 has turned hostile to the identity of accused persons during his cross-examination, his testimony is not reliable. He has lastly argued that the arrest memo of accused persons, who were stated to have been apprehended during intervening night of the alleged incident, shows that they were arrested next day in the afternoon.Case No. 676/2017
State v. Naveen Kumar & others : 33 : Rebuttal arguments by the Ld.Prosecutor :
27.To the arguments raised by defence that the star witness of the prosecution has turned hostile to the identity of accused persons during his cross-examination, the Ld.Addl. P.P. for the State has submitted that the witness has been cross-examined after one year of examination-in-chief, which was recorded on 25.09.2018 and the cross-examination by the defence counsels was conducted on 14.05.2019, wherein the complainant/PW-3 has not stated that accused persons were not the ones who committed the offence against him rather he has only stated that he is not sure whether they were the persons involved in the incident against him. He has also stated that he cannot identify today i.e. on that day, any of the accused persons. He has relied upon Abdul Murasalin v. State of Delhi, 2005, Delhi High Court.
Appreciation of law & evidence :
28.The Court deems it appropriate to refer to the Law on the point before appreciating the merits of the present matter. It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the Case No. 676/2017 State v. Naveen Kumar & others : 34 : accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
29.The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
30.Reverting to the present matter, the case of the prosecution is primarily based upon the testimony of star/sole witness i.e., the complainant examined as PW-3 Sh.Ravi Shankar Prasad who has deposed emphatically on oath that on the date and time of alleged incident, while he was passing the spot, four boys met him and one of them pushed him whereas the other put a knife Case No. 676/2017 State v. Naveen Kumar & others : 35 : on his neck. Thereafter, all the four boys took him aside in a dark place on point of knife near the wall and removed his purse containing his PAN Card, two ATM Cards, Voter I.Card, cash of Rs.250/- - Rs. 300/-, photocopy of Aadhar Card, some other documents and mobile phone from the pocket of his Pants. One of the boys had also put pistol upon him during the said robbery and fired in air in order to threaten him to leave from the spot without turning back. While all the four boys were fleeing from the spot, he raised alarm and chased them but accused persons had already crossed the road. One traffic Police official who was present near the spot also chased them on hearing his alarm and was successful in apprehending one of the accused persons. He also reached at that point and meanwhile, public had also gathered there. His mobile phone was recovered from the possession of accused Vinay, who was apprehended at the spot. The traffic police official called at 100 number and investigation was carried out. Thereafter, he went to the Police Station. Accused Vinay was correctly identified by him in the Court.
31.The testimony of the star witness of the prosecution PW-3 is corroborated by testimony of PW-2 ASI Bal Kishan who is the traffic police official stated to be present at the spot on the date and time of incident, who has deposed that on the fateful day Case No. 676/2017 State v. Naveen Kumar & others : 36 : and time, he was on duty at Kamal T.Point, New Rohtak Road, Delhi as he was posted in Traffic, Karol Bagh Circle. On hearing noise of 'Chor Chor', he witnessed that public persons were chasing a boy and when that boy reached near the T.Point where he was on duty, he apprehended him. Meanwhile, the complainant/PW-3 also reached there alongwith public persons and on personal search, one mobile phone and one purse was recovered from the possession of that boy, who revealed his name as Vinay and the same was identified by the complainant/PW-3. He made a call at number 100 and handed over the accused Vinay alongwith recovered items to the Investigating Officer. He proved the arrest memo and personal search memo of accused Vinay as Ex.PW-2/A and Ex.PW-2/B respectively and also correctly identified the case property i.e. one purse of black colour containing some documents, Rs.300/-
cash, Election I.Card of the complainant, photocopy of Aadhar Card of the complainant, ATM Card etc. as Ex.PW-2/P1 (collectively) and mobile phone of the complainant as Ex.PW- 2/P2. The arrest memo and personal search memo of accused Vinay, proved as Ex.PW-2/A and Ex.PW-2/B bears the signatures of PW-2 ASI Bal Kishan.
32.Even PW-1 HC Shri Krishan has deposed that DD no. 42A was recorded on the basis of message received from wireless Case No. 676/2017 State v. Naveen Kumar & others : 37 : operator regarding apprehension of snatcher by traffic staff. Therefore, the presence of PW-2 ASI Bal Kishan at the spot is not doubtful in view of statement of PW-1 and the arrest memo and personal search memo of accused Vinay bearing signatures of PW-2.
33.PW-3 Sh. Ravi Prasad Shanker has also deposed that other three accused persons were brought to the Police Station and he identified them as the boys who committed offence against him. The witness correctly identified the other three accused persons namely Suraj, Naveen and Arun in the Court. Even PW-2 has deposed that other three accused persons were apprehended by Beat staff who were identified by the complainant.
34.PW-3 has further deposed that his purse was recovered from the pocket of Pants of accused Arun containing cash of Rs.300/-, his Election I.Card, photocopy of his Aadhar Card, his ATM Card, some visiting cards and other documents which were seized by the IO vide memo Ex.PW-3/D. The aforesaid memo Ex.PW-3/D bears the signatures of PW-3 Sh. Ravi Shankar Prasad as witness to the recovery.
35.PW-3 further submits that the knife used during commission of offence was recovered from accused Suraj which was seized vide memo Ex.PW-3/F. The aforesaid memo Ex.PW-3/F bears the signatures of PW-3 Sh. Ravi Shankar Prasad as witness to Case No. 676/2017 State v. Naveen Kumar & others : 38 : the recovery.
36.He further deposed that IO arrested accused Arun and Suraj on his identification vide arrest memos Ex.PW-3/G and Ex.PW- 3/H respectively and their personal search memos as Ex.PW-3/I and Ex.PW-3/J respectively. All these memos bear the signatures of complainant as witness.
37.PW-3 has also deposed that accused Naveen was also arrested vide arrest memo proved as Ex.PW-3/K and his personal search memo was conducted vide memo proved as Ex.PW-3/L. Both these memos bear his signatures at point A.
38.At this point, it seems appropriate to discuss the Law on testimony of Sole witness. It is settled law that if evidence of a single witness is clear, cogent and consistent and there is no other infirmity, there is absolutely no impediment in placing reliance on such evidence and the Court need not seek for corroboration from independent witnesses.
39.In Sunil Kumar V. state of Govt of NCT of Delhi (2003 (11) SCC 367) the Honble Apex Court has held that:
"This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the lock of Section 134 of the Indian Evidence Act, 1872 (in short " the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be Case No. 676/2017 State v. Naveen Kumar & others : 39 : weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
40.The Hon'ble Apex Court in Jarnail Singh V. State of Punjab reported as 2009 (1) Supreme 224 has also held that, " It is no doubt true that conviction could be based on the sole testimony of a solitary eye-witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh V. State of Haryana (1976 (1) SCC 879) this Court held that what is important is not how many witnesses have been examined but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fall by the evidence of single witness, it is necessary to examined that evidence critically."
41.In the present matter, the testimony of the complainant as PW-3 has supported the case of the prosecution in all material aspects and it is without any inconsistency. The testimony even finds the ring of truth in it as PW-3 is the complainant himself who has been robbed of his valuable articles by the accused persons at point of knife and also by threatening him by firing gun shot in the air and soon after the offence, all the accused persons have been arrested near the spot on chase. There is no occasion which has come on record to falsely implicate the accused persons by the complainant as admittedly, they are not known Case No. 676/2017 State v. Naveen Kumar & others : 40 : to each other and there is no background for false implication.
42.The main argument of the defence counsels has been that the sole witness of the prosecution that is the complainant has turned hostile to the identity of the accused persons during his cross-examination and he did not identify them specifically despite cross-examination conducted by the Prosecutor after permission of the Court. Therefore, it is of utmost important to reproduce the relevant portion of cross-examination of PW-3, which is as below :
"There was no street light at the place of incident so I could not properly see the accused persons."
43.Further, during cross-examination by the Ld. Prosecutor, PW-3 has stated on showing the accused persons present in the Court as follows :
"I am not sure whether such persons have been involved in the incident with me. My statement was recorded in the Court on 25.09.2018 and is correct. I am not sure that one accused Vinay was caught at the spot and was involved in the incident. I have deposed on 25.09.2018 on the basis of record but I cannot identify today any of the accused persons who have committed alleged offence."
44.Ld. Addl. P.P. for the State submits that in the entire chief examination of PW-3, he has supported the case of the prosecution which was recorded on 25.09.2018 but due to lapse of time as the cross-examination of PW-3 was conducted on Case No. 676/2017 State v. Naveen Kumar & others : 41 : 14.05.2019, the witness failed to re-identify the accused persons specifically. On the said point, he has also relied upon the judgment titled as Abdul Murasalin v. State of Delhi (supra), wherein it is held that :
"16. The Supreme Court was also faced with a similar situation in a case reported as Khujji v. State of M.P. AIR 1991 SC 1859. The facts of that case were quite akin to the case in hand. In that case, there were three eye witnesses to the incident of murder, two of them including the complainant on the basis of whose statement the FIR was registered, expressed their inability to identify the accused persons while the third supported the prosecution version in his examination-in-chief and also identified the accused persons. However, in cross-examination he waivered on the question of identity of the accused. The trial Court refused to place reliance on any of the eye-witnesses but found the other evidence on record sufficient enough to convict the accused persons. The High Court in appeal while maintaining the conviction relied upon the evidence of the witness, who had identified the accused in his examination-in-chief. The High Court held that the examination- in-chief of this witness was recorded on 16th November, 1976, whereas, his cross-examination commenced on 15th December, 1976 i.e. after a month and in between, he seemed to have been won over or had succumbed to threat. The High Court therefore took a view that the subsequent attempt of the witness to create a doubt regarding the identity of the appellant was of no consequence. The Apex Court in appeal not only relied upon the evidence of the witness who had turned hostile in cross-examination as was done by the High Court, but also relied upon the evidence of that witness who had lodged the FIR and who too had turned hostile. This is what the Apex Court observed.
17.The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross- examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief "...We are, therefore, not impressed Case No. 676/2017 State v. Naveen Kumar & others : 42 : by the reasons which weighed with the trial Court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants."
45.Again reverting to the present matter, the complainant as PW-3 has only stated in his cross-examination that he is not sure whether the accused persons were involved in the incident but he was not aware categorically denied any suggestion that they were not the one who committed the offence against him.
46.The testimony of complainant/PW-3 in the present matter is well corroborated by the testimony of PW-2, as already stated, and PW-2 was the one who was posted near the spot and apprehended one of the accused namely Vinay immediately after the offence.
47.Even the testimony of PW-3 has been well corroborated by PW- 6 HC Ashok who has stated that on receipt of DD no. 42A, he alongwith SI Vidyakar Pathak reached the spot where they met PW-3 complainant, PW-2 ASI Bal Kishan, PW-7 Ct.Naveen and PW-8 Ct. Ramji Lal. He also deposed regarding apprehension of all four accused persons and respective recoveries from them. He also proved the seizure of pistol, recovered at the instance of accused Naveen as Ex.PW-6/H. He also identified the belongings of the complainant recovered from the possession of accused Arun as already proved as Ex.
Case No. 676/2017State v. Naveen Kumar & others : 43 : PW-2/P1 as well as the mobile phone of the complainant Ex. PW-2/P2. He also identified the knife recovered from the possession of accused Suraj proved as Ex.PW-3/P1. He also correctly identified the empty cartridge recovered from the spot as Ex.PW-3/P2. He also correctly identified the Pistol recovered from the possession of accused Naveen as Ex.PW-6/P1.
48.PW-6 HC Ashok specifically deposed during his cross- examination that complainant Ravi Shankar Prasad who was present at the spot alongwith accused Vinay who was already apprehended.
49.PW-7 Ct. Vinay has also corroborated the version of PW-3 by deposing that while he was on patrolling duty alongwith PW-8 Ct. Ramji Lal, on the date of incident at about 09:30 PM, they heard a gun shot noise and accordingly, reached at the spot. They found public had gathered and with help of public, they apprehended three persons who started running after seeing them. Thereafter, PW-2 ASI Bal Kishan also reached there who had already apprehended one person. The names of persons apprehended were revealed as Suraj, Arun, Naveen and Vinay. He has also proved recovery of Purse and Knife from the possession of accused persons namely Arun and Suraj respectively.
50.PW-8 Ct. Ramji Lal has deposed on the same lines of PW-7 Ct.
Case No. 676/2017State v. Naveen Kumar & others : 44 : Naveen as both of them were together during patrolling duty on the day and time of commission of offence.
51.Even the IO has well corroborated the version of PW-3 in all material particulars by stating that when he reached the spot, he met the complainant and PW-2, PW-7 and PW-8 alongwith all the four accused persons, who were being apprehended by them.
52.Even PW-11 Sh.Avinash Srivastva, Senior Scientific Officer (Ballistic), FSL, Delhi corroborated the version of PW- 3/complainant by proving on record that parcel no.1 which was found containing one 7.65 mm cartridge case Mark EC-1 and parcel no.2 which was found containing one improvised Pistol of 7.65 mm bore marked as Ex.F1 were opened and test fire was conducted successfully with improvised pistol. On examination of cartridge case Ex.EC1, it was found that it has fired through improvised pistol Ex.F1. The Pistol was found in working order and was the Fire Arm as defined in the Arms Act. Even Ex. EC1 is the Ammunition as defined in Arms Act. His detailed report is proved as Ex.PW-11/A. Even he correctly identified the Improvised Pistol examined in FSL as already exhibited as Ex.PW-6/P1 which was recovered at the instance of accused Naveen. He also identified the empty cartridge case examined in FSL as already Ex.PW-3/P2, which was recovered Case No. 676/2017 State v. Naveen Kumar & others : 45 : at the instance of accused Vinay from/around the spot. This clearly shows that the Pistol which was recovered at the instance of accused Naveen had fired the bullet as the empty cartridge was recovered at the instance of accused Vinay soon after the incident, as both have matched in the test fire at FSL. This also strengthen the testimony of PW-3 who stated that he was robbed after threatening by gun shot fire in the air.
53.Though there are minor contradictions in the testimony of prosecution witnesses however, they are not fatal to the prosecution case as they do not go to the root of the matter and the witnesses cannot be presumed to have photographic memory while deposing before the Court after month and years of the incident. On this point, reliance is placed upon the Judgment titled as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012), it is held that :
'..........25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate Case No. 676/2017 State v. Naveen Kumar & others : 46 : them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. 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.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is Case No. 676/2017 State v. Naveen Kumar & others : 47 : unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
26. When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account Case No. 676/2017 State v. Naveen Kumar & others : 48 : of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence..........'.
54.The same view has also been reiterated in the Judgments titled as Rajinder @ Lala & Etc. v. State, 2010 Crl.L.J 15; Joginder v. State, 2010 Crl.L.J., 1770 and Vahitha v. State of Tamil Nadu, (2023) 3 SCR 942.
Case No. 676/2017State v. Naveen Kumar & others : 49 : Conclusion/Findings :
55.In the present case, the prosecution has been able to prove the complicity of accused in the commission of crime beyond shadow of all reasonable doubts.
56.In view of above discussions & findings, all the accused persons namely Naveen Kumar, Suraj, Vinay and Arun are hereby held guilty and convicted for the commission of the offences as follows :
(1) Accused Naveen for the offences punishable u/s 397, 392/34 IPC & Section 25/27 Arms Act.
(2) Accused Suraj for the offences punishable u/s 397, 392/34 IPC & Section 25 Arms Act.
(3) Accused Vinay for the offences punishable u/s 392/34 IPC and (4) Accused Arun for the offences punishable u/s 392/34 IPC.
57. Let they be heard separately on the point of sentence.
Case No. 676/2017State v. Naveen Kumar & others : 50 :
58.Copy of the judgment be provided to all the four Convicts free of cost.
Digitally signed by SHEFALI SHEFALI BARNALA
ANNOUNCED IN THE OPEN BARNALA TANDON
Date: 2024.03.15
COURT ON: 15.03.2024 TANDON 17:34:55 +0530
(SHEFALI BARANALA TANDON)
ASJ-05 (West), THC, Delhi
15.03.2024
It is certified that this Judgment contains 50 pages and each page bears my signatures. SHEFALI Digitally signed by SHEFALI BARNALA TANDON BARNALA Date: 2024.03.15 17:35:07 TANDON (SHEFALI BARANALA TANDON) +0530 ASJ-05 (West), THC, Delhi 15.03.2024 Case No. 676/2017 State v. Naveen Kumar & others : 51 : Case No. 676/2017 State v. Naveen Kumar & others