Delhi District Court
State vs Arjun @ Manak on 2 September, 2019
In the Court of
Dr. Satinder Kumar Gautam: ASJ-03 (East):
Karkardooma Courts: Delhi.
S.C. No. 1758/2018
State Versus Arjun @ Manak
S/o Sh. Karnail Singh
R/o H. No.352, 11 Block,
Kalyanpuri, Delhi.
FIR No. : 196/2012
PS. : Gazipur
U/s. : 392/394/397/411/34 IPC
& 27/25 Arms Act
Chargesheet Filed On : 21.07.2012
Chargesheet Allocated On : 10.09.2018
Judgment Reserved On : 02.09.2019
Judgment Announced On : 02.09.2019
JUDGMENT
1. Mohd. Ali Bux S/o Mohd. Chabbu Miyan, complainant/victim got lodged a report with the police inter alia alleging therein that on the intervening night of 23/24.05.2012 he was going with dinner for his son and at about 12 night while he SC No. 1758/2018 State Vs. Arjun @ Mank Page 1 of 19 reached near Telco T-Point near Gazipur Fly over, Harpal @ Rakesh and Arjun Singh @ Manak, whose name he came to know later on, came near to him and dragged him nearby bushes and tried to rob his purse and mobile. He resisted for the same on which Arjun @ Manak attacked him with knife blows on his back and thigh and then Harpal @ Rakesh robed his purse containing cash amount of Rs. 1,700/- and mobile phone. During the scuffle of this, drops of blood oozing out from injuries sustained by him smeared the clothes of accused persons also and they started fleeing away from the spot on which he (complainant) started chasing them by raising an alarm. Incidentally, police officials on hearing the alarm, overpowered the culprits near Sarvodya Vidhyalya, Gazipur and recovered his robbed purse and mobile phone. He (complainant) was rushed to hospital.
2. On the statement of complainant namely Mohd. Ali Bux (PW-3) of the complainant/victim, present case bearing FIR No. 196/2012 PS Gazipur Under Sec. 392/394/411/34 IPC was registered against the culprits.
3. During the course of investigation of this case, robbed articles i.e. mobile phone and purse containing cash of Rs. 1,700/- were recovered and seized vide a memo. Proceedings for the same were conducted. Accused were also arrested.
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4. It is further case of the prosecution that arrest proceedings for the accused persons were conducted. On conclusion of the investigations of the case, accused persons have been chargesheeted for the offences punishable under Sections 392/397/411/34 IPC and chargesheet was filed before the court of learned Metropolitan Magistrate.
5. It is pertinent to mention here that during the pendency of the case before committal proceedings, accused Harpal @ Rakesh is reported to have expired on 26.03.2018.
6. After compliance of provisions of Sec. 207 CrPC, case was committed to the court of Sessions as the offence punishable under Sec. 397 IPC is exclusively triable by it.
7. Vide order dated 10.09.2018 charge under Section 392/397/34 IPC read with Sec. 34 IPC and 411 IPC was framed against the accused. Apart from that vide the order of same date, a separate charge under Sec. 27/25 Arms Act was also framed against the accused. To the said charges, accused pleaded not guilty and claimed trial.
8. To prove the guilt against the present accused, prosecution took help of six witnesses. These examined witnesses SC No. 1758/2018 State Vs. Arjun @ Mank Page 3 of 19 are as under:
PW-1 ASI (Retd.) Raj Bhati, Duty Officer, proved the copy of the FIR as Ex.PW1/B. PW-2 Const. Prahlad joined the investigation of this case with SI Shankar Lal (PW-6), IO of the case and proved the memos Ex.PW2/A & B prepared in the matter and also identified the accused.
PW-3 Mohd. Ali, complainant/victim, narrated the incident. This witness proved his statement as Ex.PW3/A with other proceedings Ex.PW3/B to H conducted in the present matter. This witness further stated that he had taken the purse on superedari and used the money and later on threw the purse.
PW-4 Const. Bharat took the exhibits to FSL, Rohini and deposited there intact condition.
PW-5 HC Yashveer joined the investigation of this case and is also a witness to the arrest of accused persons and proved the memos prepared to that aspect.
PW-6 SI (Retd.) Shankar Lal is the Investigating Officer of the case, got the case registered after putting endorsement Ex.PW6/A on the statement of complainant and proved the memos prepared in this case.SC No. 1758/2018 State Vs. Arjun @ Mank Page 4 of 19
During prosecution evidence, accused in his statement recorded under Sec. 294 CrPC, admitted MLC of injured Mohd Ali Bux in toto as Ex.C1 and also statement of MHCM.
The detailed testimonies of the witnesses concerned shall be discussed at the relevant stage of the judgment.
9. All the incriminating evidence put to the accused in his statement recorded under Sec. 313 CrPC. The accused denied the allegations levelled against him and further pleaded his innocence submitting that he has been implicated falsely in this case after lifting him from his house while he was sleeping. Accused neither opted to lead any evidence in his defence nor claimed over case property.
10. Learned Addl. PP for the State argued that prosecution has been able to prove the charge framed against the accused through ocular testimonies of the prosecution witnesses. He also submitted that there is no reason to disbelieve the testimonies of the prosecution witnesses including the complainant/victim, particularly when there is no ill-will, grudge or enmity has either been alleged or proved. Ld. Addl. PP for the State further submitting that recovery effected from the possession of the accused is an indicative factor that he had committed the crime of robbery and for holding this view SC No. 1758/2018 State Vs. Arjun @ Mank Page 5 of 19 he is taking support of Sec. 114 Indian Evidence Act. He also submitted that accused has failed to explain as to how he was found in possession of robbed purse and simple denial of the recovery has no value in the eyes of law. Ld. Addl PP for the State further contended that there is no reason for false implication at the hands of police officials, as further no ill-will, grudge or enmity has either been alleged or proved against any of the police officials and the testimony of the police officials should not be disbelieved merely because they are police officials. Ld. Addl. PP prayed for conviction to the accused, as per the charges framed against him.
11. Per contra, learned defence counsel submitted that prosecution case is liable to be demolished as same seems to be build on sand. Ld. defence counsel also contended that testimony of the victim is full of contradictions and improvements. The next contention of the ld. defence counsel is that even at the time of alleged recovery, non joining of public witnesses creates doubt on the prosecution case. One of the contention of the ld. defence counsel is that non production of the case property, as alleged recovered from accused, is also fatal to the prosecution case and and as such, prosecution has failed to prove its case for the offence punishable under Sec. 411 IPC and 27/25 Arms Act. Ld. defence SC No. 1758/2018 State Vs. Arjun @ Mank Page 6 of 19 counsel further argued that since the prosecution has failed to prove its case against the accused for any of the charges framed against him, as such, it is prayed for acquittal of the accused.
12. Rival submissions considered and material on record have been perused, in view of the law on the issue in question.
13. Case has two prongs - one for robbery & assault and another for recovery.
14. For the offence of punishable under Section 392/394/397 IPC read with Sec. 34, prosecution has took help of PW-3 Ali Bux, who is the star and key witness of the present prosecution case. Admittedly, the said witness/complainant-victim has narrated the incident of robbery in chronological manner committed upon him.
15. To facilitate the matter, testimony of PW-3 Mohd. Ali Bux is reproduced as under:
"In the intervening night of 23/24.05.2012 at about 12 night I took the meal for my son and when I reached at Gazipur flyover near Telco T Point Road No. 56, Anand Vihar two boys were coming from my front side on foot whose name was later on revealed as Arjun and others name I do not recollect. They both pulled me in the bushes and caught hold my SC No. 1758/2018 State Vs. Arjun @ Mank Page 7 of 19 collar and gave knife blow on my neck and robbed my purse containing Rs. 1700/- and my mobile phone make xxxx. Xxx During chasing two police officials near Petrol pump and near Sarvodya Bal Vidyalya. The blood was oozing out from my injuries so police officials immediately sent me in PCR van to LBS Hospital. After my medical check treatment, I returned back to the post along with local police. Accused Arjun present in the court today was stabbed me knife blow on my back while committing robbery xxx"
16. Perusal of the above, it is clear that victim narrated the incident and identified the accused as responsible for the crime committed upon him. Now court has to see evidentiary value of the said witness.
17. As regard the contention of ld. defence counsel that testimony of PW-3 Mohd. Ali Bux, the complainant/victim is full of improvements and contradictions, ld. defence counsel failed to point out any such improvement and contradiction which may go to the root of the case. Besides the above, it is also well settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be SC No. 1758/2018 State Vs. Arjun @ Mank Page 8 of 19 given importance. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. Minor discrepancies in the statements of witnesses are of no help to the accused. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put SC No. 1758/2018 State Vs. Arjun @ Mank Page 9 of 19 in a crucible for being tested on the touchstone of credibility. The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
18. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Hon'ble Apex Court observed that :
"In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
19. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra, (Crl. A. 25-26/2000) the Hon'ble Apex Court held as under :
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily SC No. 1758/2018 State Vs. Arjun @ Mank Page 10 of 19 render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW-2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. xxxx There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable SC No. 1758/2018 State Vs. Arjun @ Mank Page 11 of 19 evidence."
20. It is admitted fact that parties were not known to each other prior to the date of incident. There is no reason for false implication of the present accused at the hands of the complainant/victim. Rather, the complainant/victim would be the most interested person to see the actual culprit behind the bars.
21. In case reported as Deepak & Ors Vs. State, 2015 VII AD (Delhi) 140, Hon'ble Court has observed as :
"testimony of injured witness reveals that material facts stated by him in examination-in-
chief have remained unchallenged and
uncontroverted in cross-examination - no
ulterior motive assigned to victim for falsely implicating them for serious injuries sustained by him in incident when there was no previous animosity - victim not expected let real offenders go scot free and implicate his friend - xxxx- inconsistent defence led by appellant, to set up plea of alibi, - FIR lodged without delay least possibility of victim to concoct false story in such short period - no bar to base conviction on sole testimony of injured if it inspires confidence.
22. With these observations, as discussed above, nothing has come on record which may even remotely suggest that SC No. 1758/2018 State Vs. Arjun @ Mank Page 12 of 19 testimony of the complainant/victim suffers from any material contradiction and/or improvement.
23. Contention of ld. defence that non-citation and non- examination of any other public witness present at the spot is of no value as it is not the number of witnesses which is material rather it is the quality of the evidence which counts. For this, reference is taken with a judgment reported as Kishan Chand Vs State of Haryana, JT 2013 (1) SC 222. Apart from that, as mentioned above, PW-3 Mohd. Ali Bux is not known to the accused persons, as mentioned above.
24. As mentioned above, accused has been charged for the offence punishable under 392/394/397 read with Sec. 34 IPC.
25. With the above discussion, it is clear that complainant in clear terms stated that he was robbed at the hands of the accused persons and even sustained injuries during the commission of said offence.
26. Qua offence punishable under Sec. 397 IPC, it is clear that while PW-3 Mohd. Ali Bux appeared before the court, during his examination-in-chief, though he identified the knife with which injuries were caused to him, but in view of the case reported as Murlidhar V State 2018 VI AD (DELHI) 145 - wherein it was observed SC No. 1758/2018 State Vs. Arjun @ Mank Page 13 of 19 that - "at the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under Sec. 397 the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as it calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife used by the accused was a deadly weapon. In the absence of such an evidence and particularly, the non-recovery of the weapon would certainly bring the case out of the ambit of Sec. 397 The accused could be convicted under Sec. 392."
27. Moreover, to prove the offence punishable under Sec. 397 IUPC, it is settled law that this Section will be attracted to the assailant only for using of "deadly weapon" as essential ingredient of Sec. 397 IPC is "deadly weapon". Perusal of the record shows that chhura/knife for which sketch Ex.PW1/C was prepared, covered within the definition of "deadly weapon". So far as a knife is covered, to categories it and fix its size for it to be a deadly weapon is not correct. The word "deadly" means causing fatal injury. Knife is a deadly weapon depending on its size and manner of its cause (Balik Ram 1983 CrLJ 1438 (Del). There was no evidence to show that with knife recovered was used to cause grievous injury or attempt SC No. 1758/2018 State Vs. Arjun @ Mank Page 14 of 19 was made to caused death while committing the offence. Even during the course of investigation, said chhura/knife was not sent to FSL or to doctor for it expert opinion. Even it does not found any blood stains of human blood.
28. Hence, in view of the above, it is clear that prosecution has failed to establish its case for the offence punishable under Sec. 397 IPC. However, qua offence punishable under Sec. 392/394 read with Sec. 34 IPC, since the accused admitted the MLC of the injured, from where it is clearly revealed that injured sustained injuries on the date and time of incident with alleged history of Assault - court is of the view that prosecution has proved its case beyond all reasonable doubts for the offences punishable under Sec. 392/394/34 IPC, as the present crime was committed by accused with his associate.
29. Now court has to see the evidence brought on record for the offence punishable under Sec. 411 IPC for which the present accused has also been charged with.
30. To prove the said offence, prosecution took help of PW- 2 Const Prahlad; PW-3 Mohd Ali Bux; PW-5 HC Yashveer Singh and PW-6 SI (Retd.) Shankar Lal. All these witnesses in clear terms stated that mobile phone and purse were recovered from the possession of present accused namely Arjun @ Manak. SC No. 1758/2018 State Vs. Arjun @ Mank Page 15 of 19
31. As it is revealed from the record, accused denied the recovery effected from him and did not claim over the said property. All these witnesses in clear and unequivocal terms stated that mobile phone and purse - which were of complainant/victim - PW-3 Mohd. Ali Bux - were recovered and seized in their presence. Mohd. Ali Bux , PW-3, testified that he had taken the purse on superdari and on the contrary, accused had not made any claim over the said purse and government currency.
32. In Ronald Larks Goontha Vs. State of Rajasthan [1988 (2) Crimes 737], Hon'ble High Court of Rajasthan held as follows:
"that police officers are citizens and the public servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption under section114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence can not be discarded only on the ground that they are police officers."
33. In judgment reported as Gurcharan Singh @ Channi & Another Vs. State (1993 (2) RCR (Criminal) 696 the Hon'ble High Court of Delhi after taking note of judgment of Hon'ble High Court of SC No. 1758/2018 State Vs. Arjun @ Mank Page 16 of 19 Rajasthan in Ronald Larks Goontha's case (supra) held as follows:
"There is no dispute with the said proposition of law that the statements of the police witnesses are entitled to the same weight and the same consideration which is attached to the statement of a member of the public. However the impugned statement must inspire confidence to be relied upon in a particular case."
34. Perusal of the record is also clear to the aspect that even no suggestion was put to PW-3 Mohd Ali Bux that no recovery was ever recovered from the possession of accused, rather suggestion is that said recovery was not in his presence. As mentioned above, purse was taken on superdari and accused did not claim over the same.
35. Qua contention of the ld. defence counsel that non production of the case property i.e. purse is fatal to the prosecution case is of no value, as there is no denial to the fact that complainant/victim took the purse on superdari and accused did not claim over the case.
36. To facilitate the matter, Section 411 IPC is reproduced as under:
Dishonestly receiving stolen property - Whoever dishonestly receives or retains any SC No. 1758/2018 State Vs. Arjun @ Mank Page 17 of 19 stolen property, knowing or having reason to believe the same to be stolen property, shall be punished xxxx
37. With the above observations, court is also of the view that it was accused Arjun @ Manak who was found in possession of robbed purse containing cash of complainant/victim Mohd. Ali Bux and as such, prosecution has proved its case beyond all reasonable doubts to bring home the guilt against the accused for the offence punishable under Sec. 411 IPC for recovery of purse and cash.
38. As mentioned above, charge under Sec. 27/25 Arms Act has also been framed against accused.
39. To prove its case prosecution has took help of PW-2 Const Prahlad; PW-3 Mohd Ali Bux; PW-5 HC Yashveer Singh and PW-6 SI (Retd.) Shankar Lal.
40. Perusal of the record is crystal clear that neither any sanction nor any notification has been produced/placed on record to bring home the guilt of the accused for the said charge.
41. From the facts and circumstances, coupled with the fact that no independent public witness has been joined at the time of the alleged recovery of the knife, court is of the view that prosecution has failed to prove its case for the offence punishable under Sec. 27/25 Arms Act against the accused beyond all reasonable doubts. SC No. 1758/2018 State Vs. Arjun @ Mank Page 18 of 19
42. With the above discussion, sum up of the same is that prosecution has failed to bring home the guilt of the accused for the offences punishable under Sec. 397 IPC and 27/25 Arms Act and as such accused, Arjun @ Manak S/o Sh. Karnail Singh is hereby acquitted of the said offence. However as the prosecution has established its case against the said accused for the offences punishable under Sec. 392/394 read with Sec. 34 IPC and also 411 IPC, as such, accused Arjun @ Manak S/o Sh. Karnail Singh is hereby held guilty for the offences punishable under Sec. 392/394 read with Sec. 34 IPC & also 411 IPC and is convicted accordingly.
Digitally signed by
SATINDER SATINDER KUMAR
Announced in open court KUMAR GAUTAM
Date: 2019.09.02
on 02nd day of Sept, 2019 GAUTAM 16:35:04 +0530
(Dr. Satinder Kumar Gautam)
Addl. Sessions Judge-03 (East):
KKD Courts: Delhi.
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