Delhi District Court
State vs . Sunil Kumar, on 12 September, 2019
SC No.57222/2016
IN THE COURT OF GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Sessions Case No.57222/2016
CNR No.DLWT010013742014
FIR No. : 29/2014
Under Sections : 392/397/342 IPC & 25 Arms Act,
Police Station : Ranjit Nagar
State Vs. Sunil Kumar,
S/o late Sh. Parhlad Singh,
R/o House No.B457, Pandav
Nagar, Delhi110008.
Date of committal of case : 12.05.2014
Date of hearing arguments : 08.08.2019
Date of pronouncement of Judgment : 12.09.2019
Decision : Acquitted.
JUDGMENT:
1. The prosecution case, in brief, is as under
(i) that on 16.01.2014, on receipt of DD No.16A, SI Kamlesh Kumar/PW11 alongwith Ct Sandeep/PW2 reached the spot i.e. at House No.TC125, Pandav Nagar where complainant Shilpa alongwith their family members was found present. Statement of the Shilpa was recorded by SI Kamlesh/PW11 which is translated as FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.1/29 SC No.57222/2016 under:
"She stated that she resides on rent alongwith her family members and studied upto 09th standard. On 16.01.2014, she was present on her rented home on third floor and that her mother was siting on the roof. Her brother and father had gone to sell vegetables at Pandav Nagar Subzi Mandi. In the mean time, she started preparing food on the gas stove near the staircases. After cutting the vegetables, she came down to throw the garbage. Thereafter, when she came back she saw that the door of her room was closed which was opened when she came down. She opened the door and saw that one boy aged about 20 to 25 years wearing black jacket, black pant and shoes was there. He immediately pulled her inside the room. He tied her chunni on her mouth. He shown her a knife and also threatened her by saying that if she raised alarm, he will kill her. Due to the fear, she stood silently. Thereafter, the said boy fled away from there after pushing her with the deposit box (gullak) and one carry bag (thaila) after bolting the door of the room from outside. Thereafter, she knocked the door. After some time, one girl Laxmi who was resided on the ground floor came there and opened the door and saw her mouth tied with chunni and thereafter, she called Lalita i.e. the aunt (chachi) of the complainant. Lalita came there and opened her mouth. Complainant narrated the entire incident to Lalita. Laxmi also called the father of the complainant. Maternal uncle of the complainant namely Santosh also came there. He made call on 100 number. Complainant stated that the assailant had taken away Rs.2000 to Rs.2500/ which was kept in gullak alongwith the carry bag containing purse of her father containing voter Id card, Rs.1000/ and receipts regarding purchase of vegetables. She sought action against the assailant.FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.2/29 SC No.57222/2016
(ii) SI Kamlesh Kumar prepared rukka on the statement of complainant and sent the same to PS Ranjit Nagar for the registration of FIR. He also made inquiry from the neighbours. Site plan of the place of occurrence was also prepared at the instance of complainant.
In the mean time, Ct. Sandeep/PW2 came at the spot and handed over the copy of FIR and original rukka to SI Kamlesh. SI Kamlesh also made inquiry about the accused from nearby places. He also interrogated the Bcs, Rufican, snatcher and robbers of the area to know the whereabouts of the accused and robbed articles.
(iii) On 21.01.2014, during the investigation, on receipt of secret information, SI Kamlesh Kumar alongwith Ct. Ravinder reached near 2075/C, Satya Park where on the pointing of secret informer, they overpowered the accused. During interrogation, the accused confessed his guilt in the crime of this case. He disclosed that he has spent the amount of Rs.1800/ which was found in the robbed gullak and bag and that the said bag is lying in his room. He further disclosed that he thrown the gullak on the roof of his house after breaking the same; at the time of incident, he had a knife which is also lying in his room. The accused also recovered the robbed articles which were seized by SI Kamlesh. Information regarding the arrest of accused was given to her mother Phoolwati. The accused also identified the place of occurrence. Thereafter, SI Kamlesh and Ct.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.3/29 SC No.57222/2016Ravinder alongwith accused came in the PS. Case properties were deposited in the Malkhana; accused was got medically examined and thereafter, he was sent to lockup. Accused was kept in muffled face. Thereafter, accused was produced before the court of Ld. ACMM and from where he was sent to JC. SI Kamlesh moved application for TIP of accused as well as case property.
(iv) On 28.01.2014, the TIP proceedings of the case property was conducted in the court of Ld. M. M. where the complainant has identified her robbed bag. On 30.01.2014, the TIP application for the accused was listed but the accused refused to join the TIP proceedings. After the completion of investigation, charge sheet against the accused for the offence under Section 392/397/342/506/411 IPC was filed in the court on 19.04.2014.
2. On 05.06.2014, charge for the commission of offence punishable under Sections 392/397/342 IPC and under Section 25 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution evidence: In support of its case, the prosecution examined 12 witnesses in all. The testimony of the said witnesses are given below: FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.4/29 SC No.57222/2016 3.1. PW1 H.Ct. Surender Kumar recorded DD No.16A Ex.PW1/A on 16.01.2014 on the basis of message received from PCR regarding committing of theft on the point of knife in a house, FIR Ex.PW1/B after making endorsement on rukka Ex.PW1/D and also issued certificate under Section 65B of Indian Evidence Act Ex.PW1/D in respect of recording of FIR.
3.2 PW2 Ct. Sandeep Singh reached the spot on 16.01.2014 on receipt of PCR Call alongwith IO SI Kamlesh Kumar and met with complainant and her family members.
3.3 PW3 Lalita / aunt (chachi) of the complainant. 3.4 PW4 Sh. Santosh/ maternal uncle of the complainant. 3.5 PW5 Kumari Shilpa /complainant/victim has proved her statement recorded by the police Ex.PW5/A and identified the robbed articles i.e. her aadhar card as Ex.P1; two currency notes in the denomination of Rs.500 each as Ex.P2; election card of her father as Ex.P3; purse of her father as Ex.P4; documents containing in the purse belonged to her father as Ex.P5 (Colly) and her signatures on TIP proceedings Ex.PW5/B;
3.6 PW6 Laxmi first to reach the spot after the incident. 3.7 PW7 Laxmi Narain Shah /father of the complainant identified his election Icard and the aadhar card of his daughter Ex.P 3 and Ex.P1 respectively.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.5/29 SC No.57222/20163.8 PW8 Smt. Babita reached at the spot after the incident. 3.9 PW9 Sh. Vishal Pahuja, Ld. Civil Judge conducted the TIP proceedings of the case property on 28.01.2014 and proved the application of IO for conducting TIP proceedings as Ex.PW9/A; TIP proceedings as Ex.PW5/B; the certificate issued by him for true and correctness of TIP proceedings as Ex.PW9/B and application for supplying the copy of TIP proceedings as Ex.PW9/C. 3.10 PW10 Ct. Ravinder Kumar has joined the investigation on 21.01.2014. He deposed that he received the secret information about the presence of accused at Satya Park, Narayana Road, Delhi and conveyed the same to IO. He further deposed regarding the apprehension of accused on the pointing of secret informer; pointing out of the place of occurrence by the accused; recovery of robbed gullak (made of mud), jute bag containing aadhar card and voter Icard in the name of Shilpa and one purse of red colour of jeweller and knife at the instance of accused which was seized by the IO. He further deposed that the IO had also prepared the sketch of the knife and thereafter, they returned back to PS and accused was got medically examined. He has proved the arrest memo, personal search memo and disclosure statement of the accused as Ex.PW10/A to Ex.PW10/C respectively; pointing out memo of the place of occurrence by the accused as Ex.PW10/D; seizure memo of Aadhar card and voter Icard FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.6/29 SC No.57222/2016 by the name of Shilpa and one purse of red colour as Ex.PW10/E; seizure memo of knife as Ex.PW10/F and sketch of the knife as Ex.PW10/G; seizure memo of DTC bag seized under Section 102 Cr.P.C. as Ex.PW10/H; seizure memo of gullak as Ex.PW10/I and site plan of place of occurrence prepared by the IO as Ex.PW10/J. Witness has also identified the case property i.e. knife as Ex.PW10/A1; election Icard as Ex.P1, Aadhar card as Ex.P2, currency note as Ex.P3, red purse as Ex.P4, jute bag as Ex.P5 and other documents, receipts, visiting cards etc. as Ex.P6 (Colly); gullak as Ex.PW10/A2 and bag which was recovered from the house of accused as Ex.PW10/A3.
3.11 PW11 SI Kamlesh / Investigating Officer of the case deposed regarding the entire investigation of the case conducted by him. Apart from the other documents proved by the other witnesses, he has also proved the endorsement made by him on the complaint of the complainant Ex.PW11A; site plan of the spot prepared by him as Ex.PW11/B. He has also identified the documents/case properties as that of PW10. He also chargesheeted the accused in this case. 3.12 PW12 ASI Surender Kumar proved the relevant entry of register No.19 vide which the case property was deposited in the Malkhana as Ex.PW12/A. FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.7/29 SC No.57222/2016
4. On conclusion of the prosecution evidence, statement of accused was recorded on 17.05.2018 wherein all the incriminating evidence and documents on record against him were put to the accused to which his stand was of general denial. He claimed that he was innocent and had been falsely implicated in the case by the IO as he had refused to provide his vehicle to him for going to Rewari.
5. In his defence evidence, the accused has examined DW1 Smt. Saroj who deposed as under:
"I work as a cook. I know the accused Sunil as he resides in my neighbourhood. In January, 2014, the police officials had come to my house in the night. They were looking for the house of the accused. They asked me about the location of his house. Upon being told about the location, the police officials went to the house of the accused Sunil and called him in the street in front of his house. The police officials were making inquiries from him. I also went there. Upon being asked, the police officials told me that the accused, who drives his own vehicle, was being asked by them to take them to Rewari in his said vehicle. Since the accused refused to take them to Rewari, the police officials took him to the Police Booth situated in the locality. Thereafter, I alongwith the mother of the accused went to the said police booth and asked the police officials to let go the accused. However, the police officials stated that they were taking the accused to the PS. Thereafter, I came back to my house. In the morning on the next day, the mother of the accused requested me to accompany her to the PS. Upon reaching the PS, we were told that the accused had been arrested by the police in the present case".
6. I have heard Ld. Addl. PP for the State and Ld. counsel for FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.8/29 SC No.57222/2016 accused. I have perused the material available on record.
7. It is argued by Ld. Counsel for the accused that the prosecution has miserably failed to prove its case beyond reasonable doubt. It is argued that there are material contradictions in the statement of complainant/victim PW5 Ms. Shilpa which make her presence at the spot, apprehension of accused and the recovery from the accused highly doubtful.
8. Per contra, Ld. Addl. PP for the State has argued that the prosecution has been able to establish its case beyond any shadow of doubt. Reliance is placed on testimony of the complainant/victim i.e. PW5 Ms. Shilpa. It is contended that having regard to her testimony, whose testimony is truthful and reliable and coupled with the other evidence on record in the form of investigation conducted by the police, the prosecution has been able to prove its case.
9. I have considered the arguments addressed by the Ld. Addl. PP for the State and the counsel for the accused and perused the records.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.9/29 SC No.57222/201610. In the present case, the accused has been charged for the commission of offence punishable under Sections 392/342/397 IPC and under Section 25 Arms Act. At this stage, it is relevant to reproduce the relevant provision i.e. Section 392 IPC as under:
Section 392: Punishment for robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
11. The essential ingredients of Section 392 IPC are as follows:
(i) accused committed theft as defined in Section 378 IPC and in the process;
(ii) accused caused or attempted to cause to some persons
(a) death, hurt or wrongful restraint;
(b) fear of death of instant hurt or instant wrongful restraint;
(iii) accused did either act
(a) in committing such theft, or
(b) in order to commit theft, or
(c) in carrying away or attempting to carry away the property obtained by such theft - Venue Vs. State (2008) 3 SCC 94: AIR 2008 SC 1199 is relied upon.
(iv) accused acted voluntarily.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.10/29 SC No.57222/201612. Section 397 IPC prescribes punishment of robbery, or daicoity with attempt to cause death or grievous hurt which is reproduced as under: Section 397: Robbery, or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
13. An act would only fall within the mischief of Section 397 IPC if at the time of committing robbery or daicoity, the offender
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person;
(c) attempts to cause death or grievous hurt to any person;
(relied Shravan Dashrath Datrange vs. State of Maharastra, (1997) 2 Crimes 47 (Bom.); or
(d) 'Offender' refers to only culprit who actually used deadly weapon.
14. What is essential to satisfy the word "uses" for the purpose of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.11/29 SC No.57222/2016 and not that it should be further shown to have been actually used for cutting, stabbing, putting, as the case may be. (Asfaq v. State (Govt. of Nct. of Delhi), AIR 2004 SC 1253. There can be no quarrel that knife is a deadly weapon within the meaning of Section 397 IPC (State of Maharastra v. Vinayak Tukaram Utekar, (1997) 2 Crimes 615 (Bom.)
15. It is a settled proposition of criminal law that prosecution is supposed to prove its case by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubt. The case of the prosecution has to fall or stand on its own legs and it can not drive any benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubt never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
16. In Harbir Singh v. Sheeshpal & Ors. (2016) SCC 418, it was observed that it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.12/29 SC No.57222/2016 runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
17. The Apex Court in Veer Singh & Ors. Versus State of UP reported in (2014) 2 SCC 455, has observed that :
"17. Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
(Vide: Vadivelu Thevar and Anr. V. State of Madras : AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu : AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal :
AIR 2010 SC 3638; Mahesh and Anr. v. State of Madhya Pradesh : (2011) 9 SCC 626; Prithipal Singh and Ors. v. State of Punjab and Anr. : (2012) 1 SCC 10; Kishan Chand v. State of Haryana : JT 2013 (1) SC 222 and Gulam Sarbar v. State of Bihar (Now Jharkhand) : 2013 (12) SCALE 504)".
18. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.13/29 SC No.57222/2016 quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. As observed in Kuna @ Sanjaya Behera v. State of Odisha reported 2017 SCC Online Supreme Court 1336, the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important.
19. It is observed that the prosecution has relied on the testimony of PW5, PW6, PW3, PW4, PW7 and PW8 to prove its case. It is necessary to first determine whether their depositions are reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care.
Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.14/29 SC No.57222/2016 Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is, therefore, evident that 'Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
20. In the present case the entire case of the prosecution is based upon the testimony of complainant PW5 Ms. Shilpa and her complaint made to the police Ex.PW5/A is already noted above. During her examination, she deposed as under: "On 16.01.2014, I was at home at about 12:00 noon after cutting the vegetables, I had gone down stairs for putting the garbage as the house where I reside is on third floor. When I returned back I found the door of the room closed though while leaving the room I left the door opened. When I opened the door, I found that one boy FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.15/29 SC No.57222/2016 was there inside the room. He pulled me inside the room. I noticed that he had already broken the gullak, the clothes were also lying scattered. When the accused went to open the iron box (petti), I raised alarm on which that boy tied chunni on my mouth. When I picked the knife with which I was cutting vegetables that boy also took out knife and he ran away after bolting the door from outside. I started weeping and also knocked the door from inside. On which one small girl Laxmi came there, she saw my mouth tied with chunni thereafter she called Lalita aunty who came there and opened my mouth. Thereafter, Laxmi called my father who was in Subzi Mandi. My father came and after some time, my maternal uncle also came. My maternal uncle gave a call on 100 number. That boy had taken away the money from gullak, one bag (Jholla) having documents of my father, one red colour purse containing Rs.1000. Police arrived at the spot. Police made inquiry from me and recorded my statement Ex.PW5/A. I had also shown scene of crime to the police. That boy had tied her face with cloth and therefore, I could not identify him. I had not noticed anything written on his hand. I can not identify that boy even if shown to me.
The witness identified her aadhar card Ex.P1, two currency notes of denomination of Rs.500/ each Ex.P2, election Icard of Laxmi Shah Ex.P3 and documents of her father Ex.P5 taken out from the red colour purse. The witness did not identify the broken gullak Ex.P6 and knife recovered from the accused Ex.P7. She further deposed that she did not identify the bag in TIP proceedings Ex.PW5/B before the Ld. Magistrate".
21. During crossexamination by Ld. Addl. PP for the State, she denied regarding the bag being stolen by the accused, gullak broken by the accused and knife recovered from the accused which were shown to her. She further denied regarding raising of alarm on threat given by the accused by knife and identification of the accused.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.16/29 SC No.57222/2016Even in the court the witness was asked to identify the accused to which she replied: "Accused present in the court is pointed out to the witness and asked that he is the boy who entered the house and taken away the bag and gullak to which witness replied in negative".
22. During crossexamination, complainant admitted that she did not call to the police on 16.01.2014 nor asked anybody to call the police. Moreover, there are inherent contradictions in the complaint Ex.PW5/A of the complainant and her testimony while recording during examination in chief. As noted, the witness has exonerated the accused from the offence and failed to identify him. In nut shell, the complainant has not supported the prosecution case.
23. Laxmi has been examined as PW6 who deposed nothing regarding the incident. She further deposed in contradiction to the prosecution story and testimony of PW1 as she deposed as under:
"I was playing in the staircase with my friends. I heard the sound of beatings. On hearing the sound, I went to the house of Shilpa didi. I found her face tied with chunni and she was weeping. Thereafter, I called Lalita aunty. Lalita aunty came and opened the mouth of Shilpa Didi. I had not gone any where to call anybody. I had not called to Mausa as he was ill and was sleeping. By mausa I mean Mr. Prem. On hearing the sound of weeping, I went to the house of Shilpa, opened the door and found Shilpa weeping and her mouth tied with Chunni".FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.17/29 SC No.57222/2016
The claim of the witness is altogether different as claimed by PW5. Infact, the testimony of PW6 is contrary to her own version as on one hand she claims that she called Lalita aunty who opened the door and mouth of Shilpa while on other occasion she claimed contrary regarding herself. In any case, she has not witnessed the incident and her testimony is not helpful to prove the prosecution case.
24. PW3 Smt. Lalita also did not support the case of the prosecution as the witness did not depose anything regarding the incident alleged against the accused. PW4 Santosh deposed contrary to the deposition of PW6 Laxmi as PW4 Santosh deposed that he was called from Subzi Mandi Pandav Nagar by PW6 Laxmi. During cross examination, PW4 Santosh deposed that the theft was not committed in his presence. PW7 Laxmi Narayan also did not depose anything regarding the incident and deposed that his statement was not recorded by the police; he did not tell the police that from his house one gullak and a bag having an election Icard, some documents and money were stolen. The testimony of PW8 Babita is also not helpful to prove the prosecution case as she deposed that she had not seen anything; nothing was stolen from our house except the gullak which was broken.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.18/29 SC No.57222/201625. Here it is important to mention that none of the material witnesses examined by the prosecution supported the case and deposed anything against the accused. The complainant has failed to identify the accused as the perpetrator of crime. There are lot of contradictions in the statement of the witnesses as referred above which cannot be ignored and which are very relevant to considered by the court. The testimony of PW3, PW4, PW5, PW6, PW7 and PW8 appears to be inconsistent and also contrary to the claim of each other and therefore, the same needs to be examined with caution.
26. This court is guided in view of the decision in Badam Singh v. State of MP (2003) 12 SCC 792, wherein following observations were made:
"The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to crossexamination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence."
27. In view of the fact that the allegations against the accused FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.19/29 SC No.57222/2016 is not substantiated by the PW3 to PW8 and is also based on material improvements, this court does not find itself to rely upon the same. Reliance is placed on Ashok Vishnu Davare v. State of Maharashtra, II (2004) SLT 2004 wherein it has been observed that if glaring material improvements are there in the statements of the witnesses, the same affects the creditworthiness of the prosecution case and it is not safe to base conviction thereon.
28. As per the case of the prosecution, PW11 SI Kamlesh alongwith PW10 Ct. Ravinder Kumar apprehended the accused and arrested him vide arrest memo Ex.PW10/A on 21.01.2014. PW11 deposed that accused led to house No.D457, Pandav Nagar, Delhi and from the ground floor, he got recovered one knife having the wooden handle which was used in this case and seized vide seizure memo Ex.PW10/A. PW11 Kamlesh also deposed regarding the sketch of the knife Ex.PW10/B and one bag containing the aadhar card of Shilpa and voter card of her father, two currency notes seized vide seizure memo Ex.PW10/E; gullak seized vide seizure memo Ex.PW10/I and also deposed regarding the site plan of the recovery Ex.PW10/J. Pointing out memo Ex.PW10/G was also prepared. It is reiterated that PW5 Shilpa has already exonerated the accused and failed to identify him. Even the knife allegedly recovered from the knife has not FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.20/29 SC No.57222/2016 identified by the complainant/PW5.
29. Apart from the above, the case of the prosecution qua the alleged recovery of knife from the accused also does not inspire confidence. I have gone through the documents/exhibits placed on record. The recovery of knife was effected at the instance of accused on 21.01.2014. However, during crossexamination, it is admitted by IO PW11 SI Kamlesh that no independent public witness was joined in the investigation at the time of recovery of knife. It is noted that the alleged recovery was effected from the house of the accused but neither any family member of the accused nor any neighbour was joined in the investigation at the time of recovery of knife. It is also admitted by PW11 in his crossexamination that the mother and wife of the accused was present at the time of the recovery of knife but none of them were joined as witness at the time of effecting the alleged recovery. Since none of the public/independent witness has been joined in the investigation at the time of recovery despite availability and even no efforts were made to join the public witness in the investigation at the time of the said recovery whereas the place of recovery is claimed to be public place, the recovery of knife at the instance of the accused does not inspire confidence and makes the recovery doubtful.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.21/29 SC No.57222/201630. When the contradictions are material in nature, it has been held in Tehsildar Singh vs. State of UP AIR 1959 SC 1012: "Moreover, looking at the ambiguous narration of sequences described by the witnesses, the chain of events in the case cannot be said to have been properly brought on record by the prosecution. It is always the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings so state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements".
31. In the present case, in my view, the contradictions mentioned above, in the testimony of the complainant/victim, are vital in nature and it goes to the root of the matter and there is nothing on record to explain about the same and hence this witness does not appear to be very reliable, dependable and trustworthy, whose testimony can be used to convict the accused.
32. In view of the abovesaid contradictions in the statement of complainant/victim, the court wanted some other reliable evidence on record in the form of testimony of some public witness to corroborate the case of the prosecution regarding the sequence of apprehension of accused persons and recovery effected but it is relevant to note that in the present case, there is no independent FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.22/29 SC No.57222/2016 witness produced by the prosecution in support of its version of the manner of apprehension of accused. Accused was apprehended at about 07:00 p.m. from Satya Park, Pandav Nagar, Delhi but no public witness has been associated for the apprehension or arrest of the accused. PW11 during crossexamination admitted that when the police officials visited the house of the accused, his mother and wife were present but none of them have joined as witnesses of the said recovery. No request was made by the IO to join other person in the proceedings and admittedly no public witness was joined at the time of affecting the alleged recovery from the accused. It appears that the investigating agency did not make any sincere effort to join any public witness in the said proceeding. In case titled as Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on the request of the police officials. In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 (1) CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.23/29 SC No.57222/2016 an after thought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons were not included in the proceeding even after the apprehension of the accused, the case of the prosecution has become doubtful.
33. Now, in view of the serious contradictions in the statement of complainant/victim and in the absence of any independent public witness to the alleged arrest and seizure proceedings, it is to be examined whether the accused can be held guilty only on the basis of the deposition of the police officials. No doubt as contented by Ld. Addl. PP for the State, the testimony of the police officials cannot be treated with suspicion only because no public witnesses were joined in the investigation. As pointed out by Ld. Addl. PP, ordinarily the public at large shows their disinclination to come forward to become witnesses and even in the absence of independent witnesses, the court can, on the sole testimony of police officials believed the prosecution case to be true. However, Hon'ble Apex Court has also made it clear that if a court has any good reason to suspect the truthfulness of the prosecution witnesses, the court can certainly take into account the fact that no other independent person was present at the time of recovery and that therefore an accused FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.24/29 SC No.57222/2016 cannot be held guilty only on the basis of such evidence produced by the prosecution. In the present case, as stated above, there are a number of contradictions in the statement of complainant/victim, which go to the root of the matter and make the case of the prosecution highly doubtful to have taken place in the manner as narrated in the charge sheet.
34. As per the case of prosecution, the knife which was allegedly used in the commission of offence in question was recovered from the possession of accused, when this knife was shown to the complainant/victim PW5, she failed to identify the same and rather she denied the suggestion that it was the same knife which was used in the commission of the offence.
35. It is to be borne in mind that the most important aspect of any successful prosecution is clear establishment or proof of identity of the accused being the assailant who has committed the alleged offence. This aspect of identity becomes the most primordial when the accusation against the accused has been for present one. It is also stated to be first and most important connecting link in the chain of events which are required to be proved by the prosecution before it could take its case towards the other connecting links for the purpose FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.25/29 SC No.57222/2016 of proving the ingredients with which accused persons have been charged with.
36 In Pankaj vs. State of Rajasthan reported in (2016) 16 SCC 192, wherein the Apex Court held that :
"It is a wellsettled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the Appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence".
37. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.26/29 SC No.57222/2016
(iii) The circumstances should be of conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
38. The testimony of the complainant/victim alongwith other prosecution witnesses, as discussed above, is full of inconsistencies and contradictions and does not inspire the confidence of the court put forward by the prosecution. The version given by the complainant/victim does not find any corroboration from any independent source.
39. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.27/29 SC No.57222/2016 animus of witnesses. It is settled law that the burden of proof in a criminal trial never shifts and it is always on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It has been so held in Paramjeet Singh vs. State of Uttrakhand AIR 2011 Supreme Court 200.
40. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence".
41. Since the complainant and other material witnesses did not support the case of the prosecution against the accused and no other material could be brought on record to connect the accused with offences in question, the prosecution failed to bring home the guilt of the accused beyond reasonable doubt. Accordingly, the accused is hereby acquitted of the charges levelled against him.
42. Personal bonds in terms of Section 437A Cr.P.C. furnished on behalf of the accused has been accepted. The same shall remain in FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.28/29 SC No.57222/2016 force for a period of six months from today.
43. Previous personal bond and the surety bond of the accused stand discharged. Documents, if any, of the sureties retained on record be released against acknowledgement.
44. Case properties are confiscated to State. If no appeal is preferred against the acquittal of the accused within the prescribed period of limitation, the case properties be disposed off as per rules.
45. File be consigned to record room after necessary compliance.
Digitally signed by Gorakh Nath Gorakh Nath Pandey
Pandey Date: 2019.09.16
15:58:09 +0530
Announced in the open court (Gorakh Nath Pandey)
on 12.09.2019 Addl. Sessions JudgeFTC, (West)
Tis Hazari Courts, Delhi.
FIR No.29/2014 State v. Sunil Kumar @ Sushil Page No.29/29