Delhi District Court
State vs Uttam on 13 March, 2024
THE COURT OF SH. SUNIL KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE-09, WEST
TIS HAZARI COURTS, DELHI
DLWT010049112018
CNR No : DLWT01-004911-2018
Sessions Case No : 335-2018
FIR No : 35-2018
Police Station : Maya Puri
Under Sections : 394/398/34 IPC
STATE
VERSUS
UTTAM
S/o Sh. Dhani Ram
R/o H. No. A-167, Shiv Vihar
Vikas Nagar, Uttam Nagar, Delhi. ...Accused
Date of Institution 23.04.2018
Date of receiving by this Court 30.05.2018
Date of conclusion of arguments 13.03.2024
Date of announcement of judgment 13.03.2024
Final order Accused Uttam S/o Sh.
Dhani Ram is convicted for
the offences punishable
under Section 394 & 398
IPC read with Section 34
IPC.
FIR No : 35/2018, SC No. 335/2018
PS : Mayapuri State Vs. Uttam Page No. 1 of 35
JUDGMENT
1. Accused Uttam was committed to the Court of Sessions to stand trial for the offences punishable under Sections 394, 398 IPC read with Section 34 IPC for making attempt to commit robbery of Rs. 1,00,000/- from Smt. Sharda Rajput by causing simple sharp injury on her left hand's finger by a deadly weapon i.e. knife.
FACTS OF THE CASE
2. The prosecution case in narrow compass is that on 24.02.2018 on receipt of DD No. 22A, Sub-Inspector Virender Kumar (In short "Investigating Officer") along with Head Constable Balwant reached at the spot i.e. WZ-226, Nangal Raya, Delhi, where they came to know that injured has been shifted to DDU Hospital. Thereafter, they reached at DDU Hospital and found one Sharda Rajput W/o Sh. Mukesh Kumar (In short "the complainant/injured") admitted vide MLC No. 2222/18. The concerned doctor has mentioned on the said MLC "alleged history of physical assault as told by self, simple hurt with sharp blunt object". The Investigating Officer recorded the statement of the complainant/injured, wherein she stated that on 24.02.2018 at about 02.00 PM, Uttam S/o Sh. Dhaniram (In short "the accused") who was already known to the complainant being friend of her husband, came with his associate on scooty bearing no. DL-3SDJ-5007 and called the complainant by saying that "Bhabhi mai dealer ko sath lekar aaya hu, jo apna makan bech raha hai". On this, the complainant replied that her husband is not at the home and will come at about 04.00 PM. The accused FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 2 of 35 told the complainant that he will wait for her husband. On 23.02.2018, the complainant's husband informed the accused that they are intending to purchase a house for approximately Rs. 7-8 lacs and out of the said amount, they will make payment of Rs. 1,00,000/- in cash whereas, the remaining amount will be paid in installments. The accused and his associate, after waiting for sometime, forcibly pushed the complainant and entered in her house. The associate of accused directed the accused to take out the knife and kill the complainant and thereafter, they both will go after taking away her money. On this, accused took out a knife, kept near his waste and extended life threats to the complainant and directed her to hand over Rs. 1,00,000/- to them. The complainant refused for the same, on which, the associate of accused started shouting and directed the accused to stab the knife in complainant's abdomen. On this, accused made an attempt to stab knife in complainant's abdomen, but the complainant managed to caught hold of knife from her left hand. The accused tried to get release the knife from the complainant's hands and in this process, little finger of left hand of the complainant was cut down. The complainant again managed to caught hold of knife by taking a leap towards it and started raising alarm with loud voice. The same caused the associate of the accused to flee away from the spot. The accused Uttam also tried to run away from the spot after biting on left thumb of the complainant, but the accused fell down due to his collision with the complainant and was got caught by the complainant. In the meantime, the complainant's husband also reached at the spot and made a call at 100 number. The police reached on the spot and shifted the complainant to the hospital. The accused was FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 3 of 35 handed over to the police officials. She prayed for taking legal action against the accused.
2.1. On the basis of the statement and MLC of the complainant/injured, the present FIR under Section 394/398/34 IPC was got registered. The Investigating Officer called another Constable Dilip at DDU Hospital. Thereafter, the Investigating Officer along with said Constable Dilip as well as the complainant and accused reached on the spot and the complainant handed over the weapon of offence i.e. knife from the spot to the Investigating Officer. The Investigating Officer prepared the sketch of the said knife Ex. PW2/C and also took its measurement. The blood stains were also found on its blade. The blade of the said knife was made of steel and word "Lord Stainless" was written on the same. The said knife was sealed with the seal of VK and seized the same vide seizure memo Ex. PW2/D. Scooty bearing no. DL-3SDJ-5007 which was parked at the spot, was also seized vide seizure memo Ex. PW2/E at the instance of the accused. The Investigating Officer prepared the site plan of the spot Ex. PW2/A at the instance of the complainant. The case property was deposited in the malkhana. Statements of the witnesses were also recorded by the Investigating Officer.
2.2. The accused was interrogated by the Investigating Officer. The accused has also received injuries, therefore, he was shifted at DDU Hospital vide MLC No. 1571/18 under surveillance of police, thereafter, the accused was shifted to LNJP Hospital for further treatment. On 27.02.2018, the accused FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 4 of 35 came to the police station and he was arrested in this case vide arrest memo Ex. PW6/B. Personal search of the accused was also conducted vide personal search memo Ex. PW6/A. His disclosure statement Ex. PW6/C was also recorded. 02 days police custody remand of the accused was obtained for searching his associates, but his associate could not be apprehended due to non availability of particulars regarding his parentage and address. The accused told the name of his associate as Sanjay and provided his mobile number as 8800852194, however, said Sanjay remained untraceable. Thereafter, the accused was produced before the concerned Court and sent to judicial custody.
2.3. During investigation, subsequent opinion qua nature of injury of the complainant was obtained wherein, the doctor opined the same as simple. Blood stained knife and blood sample of the complainant were sent to FSL Rohini for examination. The ownership documents qua the aforesaid scooty were collected.
2.4. During investigation, the Customer Application Form of mobile number 8800852194 of associate of accused were collected. The raid was also conducted on the address mentioned in the said CAF and on 30.03.2018 and accused Sanjay was arrested from B-403, JJ Colony, Vikas Nagar. The Test Identification Parade of the accused Sanjay was got conducted, however, the complainant has failed to identified him. Thereafter, the said accused Sanjay was released from this case as nothing was recovered from his possession.
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 5 of 35 2.5. On completion of the investigation, the charge-sheet for the offences punishable under Section 394/398/34 IPC was prepared and the same was filed before the Court.
COGNIZANCE
3. Cognizance was taken by the learned Metropolitan Magistrate (West), Delhi on 25.05.2018.
CHARGE
4. Vide order dated 04.08.2018, learned Predecessor of this Court framed the charge for the offences punishable under Sections 394, 398 IPC read with Section 34 IPC against the accused, to which, the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In order to bring home the guilt of the accused, prosecution examined the following 10 witnesses:
Sr. Name of witnesses Crux of Testimony No.
1. PW-1 Head He is the formal witness of the Constable Mukesh investigation of this case being the Duty Officer and recorded the FIR.
This witness has tendered the following documents during his deposition:
a) Copy of FIR :
Ex. PW1/A
b) Endorsement made on the rukka :
Ex. PW1/B
c) Certificate under Section 65B of Indian Evidence Act :
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 6 of 35 Ex. PW1/C This witness was cross examined by the learned defence counsel.
2. PW-2 Smt. Sharda She is the star prosecution witness in Rajput this case being the injured as well as complainant.
The evidence of this witness is relevant for proving the allegations against the accused as well as for establishing the identity of the accused.
During her deposition, this witness has relied upon the following documents:
a) statement/complainant :
Ex. PW2/A
b) Site plan of the spot :
Ex. PW2/B
c) Sketch of the knife :
Ex. PW2/C
d) Seizure memo of knife :
Ex. PW2/D
e) Seizure memo of scooty bearing no.
DL-3SDJ-5007 recovered from spot :
Ex. PW2/E
f) Weapon of offence i.e. knife :
Ex. P-1 This witness has correctly identified the accused in the Court during her deposition.
This witness was duly cross examined by the learned defence counsel.
3. PW-3 Sh. Mukesh He is the material witness of the FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 7 of 35 Kumar prosecution in this case being the husband of the complainant.
The evidence of this witness is relevant for establishing the identity of the accused as well as his apprehension on the spot.
This witness has correctly identified the accused as well as knife Ex. P-1 in the Court during his deposition.
This witness was duly cross examined by the learned defence counsel.
4. PW-4 Head He is the witness of investigation of this Constable Balwant case as he reached on the spot with the Singh Investigating Officer and various stages of the investigation were carried out in his presence.
This witness has relied upon the following documents during his deposition:
a) Sketch of the knife :
Ex. PW2/C
b) Seizure memo of the knife :
Ex. PW2/D
c) Seizure memo of the scooty :
Ex. PW2/E
d) Knife :
Ex. P-1 This witness was duly cross examined by the learned defence counsel.
5. PW-5 Constable He is the witness of investigation in this Dilip case as he went to DDU Hospital and met with the complainant (PW-2), complainant;s husband (PW-3), accused FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 8 of 35 and the Investigating Officer. Further, various stages of the investigation were carried out in his presence.
This witness has relied upon the following documents during his deposition:
a) Sketch of the knife :
Ex. PW2/C
b) Seizure memo of the knife :
Ex. PW2/D
c) Seizure memo of the scooty :
Ex. PW2/E
d) Knife :
Ex. P-1 This witness was duly cross examined by the learned defence counsel.
6. PW-6 Constable He is the witness of investigation of this Ajay case as the accused was arrested in his presence.
This witness has tendered the following documents during his deposition:
a) Personal search memo of accused :
Ex. PW6/A
b) Arrest memo of accused :
Ex. PW6/B
c) Disclosure statement of accused :
Ex. PW6/C This witness has also identified the accused in the Court during his deposition.
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 9 of 35 This witness was duly cross examined by the learned defence counsel.
7. PW-7 Head He is the witness of investigation of this Constable case as various stages of the Parvinder investigation were carried out in his presence.
This witness has relied upon the following documents during his deposition:
a) Seizure memo of blood sample of the complainant as well as accused :
Ex. PW7/A This witness was duly cross examined by the learned defence counsel.
8. PW-8 Dr. V.K. He is the material witness of the Ranga, HOD, prosecution in this case. He gave Department of subsequent opinion qua the weapon of Forensic offence i.e. knife.
Medicines, BJRM Hospital, Delhi This witness tendered the following documents during his deposition:
a) Sketch of the knife, prepared by him:
Ex. PW8/A
b) His detailed report qua subsequent opinion :
Ex. PW8/B This witness was duly cross examined by the learned defence counsel.
9. PW-9 Dr. Arnab He is the material witness of the Pramanik, SMO, prosecution in this case and the Central Hospital, complainant was got medically Singrauli, Madhya examined by him. He also took the Pradesh blood sample of the complainant.
This witness tendered the following FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 10 of 35 documents during his deposition:
a) Detailed report qua nature of injuries of the complainant :
Ex. PW9/A
b) MLC No. 2195/18 of the complainant, which was prepared regarding taking of her blood sample :
Ex. PW9/B This witness was duly cross examined by the learned defence counsel.
10 PW-10 Dr. She is the material witness of the Suminder Kaur, Sr. prosecuting in this case as she Forensic Chemical conducted biological as well as DNA Examiner- examination qua the exhibits sealed in Assistant Director, this case.
Regional Forensic
Science This witness has tendered the following
Laboratory, documents during recording of her
Chanakyapuri, deposition:
New Delhi.
a) Detailed report qua DNA Profile
generation :
Ex. PW10/A
b) Genotype data of exhibits :
Ex. PW10/B
This witness was cross examined by the learned defence counsel.
ADMISSION/DENIAL OF THE DOCUMENTS BY ACCUSED UNDER SECTION 294 CR. P.C
6. During trial, the accused has admitted DD No. 22A dated 24.02.2018 (Ex. AD1), DD No. 8B dated 30.03.2018 (Ex. AD2), DD No. 39A dated 24.02.2018 (Ex. AD3), DD No. 52B dated 27.02.2018 (Ex. AD4), customer application for pertaining FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 11 of 35 to mobile number 8800852194 (Ex. AD5) and TIP proceedings qua co-accused Sanjay @ Babu (Ex. AD6).
7. On 14.02.2023, the prosecution evidence was closed and matter was notified for recording of statement of the accused under Section 313 Cr. P.C. STATEMENT OF ACCUSED UNDER SECTION 313 Cr. P.C
8. On 04.03.2023, the statement of the accused under Section 313 Cr. P.C was recorded wherein, the accused stated that he is not willing to lead any evidence in his defence. Therefore, vide order of even date, the defence evidence was closed and matter was notified for final arguments.
APPRECIATION AND EVALUATION OF EVIDENCE, ANALYSIS OF CONTENTIONS AND FINDINGS
9. I have heard Sh. Shiv Kumar, learned Addl. PP for the State as well as Sh. R.R. Jha, learned legal aid counsel for the accused and have also gone through the entire record of the case. I have also considered the evidence adduced by both the sides with case laws relied by them as well as the arguments advanced by both the sides.
ARGUMENTS ON BEHALF OF THE STATE
10. Learned Additional Public Prosecutor has argued that the prosecution has proved its case beyond reasonable doubt against the accused.
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 12 of 35 10.1. The entire prosecution case is based on the testimonies of the complainant/injured i.e. PW-2 Smt. Sharda Rajput, who is the victim in the present in the present case. She has minutely explained the entire incident and the manner of commission by the accused. Apart from this witness, PW-3 Mukesh Kumar has also proved that the accused Uttam was caught on the spot by PW-2.
10.2. It is further argued that there is nothing in the cross examination of the complainant/injured/PW-2 or the other prosecution witnesses which could be said to be sufficient to create a doubt in the prosecution story. The complainant/injured/PW-2 and the other prosecution witnesses have given a true and reliable account how the offence was committed in this case and there is nothing to disbelieve their unflinching and cogent testimony on the issue. 10.3. It is further argued that the evidence of the prosecution witness are so meticulously flawless that it points to only one conclusion that the prosecution has proved its case beyond reasonable doubts. The testimony of PW- 2/injured/complainant and other prosecution witnesses are consistence throughout the trial. Learned Addl. PP for the State has read the evidence and important documents to connect the accused with the alleged crime.
10.4. It is further argued that the prosecution has broken the back of the defence by examining aforesaid injured/complainant/PW-2 and other material witnesses and the deposition of these witnesses is duly corroborated with medical evidence. The complainant/PW-2, husband of the complainant/PW-3 have also identified the accused being the real FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 13 of 35 culprit of the present case. Motive of the crime has also been proved by the prosecution. It is prayed that as the prosecution has proved its case beyond reasonable doubts therefore, the accused Uttam deserves to be convicted for the charged offence. 10.5. It is further argued that the cross examination of all the aforesaid star/material prosecution witness as well as remaining prosecution witnesses does not reveal anything favourable to the accused. It is also argued that there is nothing in the cross-examination of the eye witness and other material prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution. 10.6. It is further argued that the case has been proved beyond reasonable doubts and the accused deserves to be convicted for the charged offences.
ARGUMENTS ON BEHALF OF THE ACCUSED
11. Per contra, learned defence counsel has focused on the issue relating to the contradictions in the testimonies of the complainant/injured/PW-2 and other material prosecution witnesses, incongruities in the oral evidence and medical report, MLC of the injured, the witnesses being interested and partisan, no independent witness of the incident and no proper investigation in this case.
11.1. It is argued that there are various contradictions and flaws in the prosecution case and same raise serious doubts in prosecution story and show that prosecution has failed to prove its case beyond reasonable doubts against the accused and benefit of the same must be given to the accused.
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 14 of 35 11.2. It is also argued that the prosecution witnesses have deposed falsely against the accused being the interested witnesses. The entire deposition of the complainant/injured/PW-2 is full with contradictions therefore, liable to be rejected. 11.3. It is also argued that PW-2 and PW-3 have falsely implicated the accused due to the money dispute between them. It is therefore, prayed that the accused may kindly be acquitted in this case.
APPRECIATION OF LAW & EVIDENCE
12. Before embarking on the long journey of examination and adjudication on the material on record, lengthy oral arguments of both sides, law on the issue as well as the evidences brought on record, I must mention here the law relating to the appreciation and evaluation of evidences of the witnesses.
EVALUATION OF EVIDENCE-PROOF BEYOND REASONABLE DOUBT:
13. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
13.1. It is also well settled that while in criminal cases, the doctrine of presumption of innocence casts the burden on the prosecution to prove its case against the accused persons beyond reasonable doubt, it is trite that doubt to the guilt of the accused FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 15 of 35 should be substantial and not flimsy or fanciful. Such doubt need not reach certainty, but it must carry high degree of probability. In (1988) 4 SCC 302, State of U.P. v. Krishna Gopal wherein the Court had observed as follows:
"25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another learned Author says ["The Mathematics of Proof-II": Glanvile Williams: Criminal Law Review, 1979, by Sweet and Maxwell, P. 340 (342)]":
"the simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who ran away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest for abstract FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 16 of 35 speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilty of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective elements in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge.
While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice".
13.2. While examining the degree of proof in criminal cases, in (1947) 2 ALL E.R. 372, Miller v. Ministers of Pensions it was stated-
"that degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fall to protect the community if it FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 17 of 35 admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable", the case is proved beyond reasonable doubt..." All that the principle enjoins is a reasonable skepticism, not an obdurate persistence in disbelief. It does not demand from the judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth.
13.3. In (1990) 1 SCC 445, Gurbachan Singh v. Satpal Singh, the Supreme Court quoted observations of Lord Denning in Bater v. Bater in (1950) 2 All. E.R. 458 that the standard adopted by the prudent man would vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions or thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
13.4. When would it be held that prosecution had failed to establish its case beyond reasonable doubts entitling accused to benefit of doubt?
In (1990) 3 SCC 190, Vijayee Singh v. State of U.P., the court quoted Lord Du Paraq, J. on the concept of the benefit of reasonable doubt from his observations in Miller v. Minister of Pensions [(1947) 2 All ER 372, 373 H] that:
"All that the principle enjoins is a reasonable scepticism, not an obdurate FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 18 of 35 persistence in disbelief. It does not demand from the judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth".
13.5. The expressions "proof beyond reasonable doubt"
and entitlement of an accused person to "benefit of doubt" are regularly used by us. But what are their contours? A very valuable discussion on this issue is to be found in the judgment authored by O. Chinnappa Reddy, J. in (1979) 1 SCC 355 K. Gopal Reddy v. State of AP wherein reiterating the fundamental principle of criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt, the court placing reliance on the afore noticed enunciation by Lord Denning in Miller (Supra), elaborated the principles thus:
"9. ...To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 19 of 35 (Salmon, J. in his charge to the jury in R. v. Fantle reported in1959 Criminal Law Review 584).
...In Khem Karan v. State of U.P. [(1974) 4 SCC 603 : 1974 SCC (Cri) 689 : AIR 1974SC 1567] this Court observed: "Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony".
13.6. The Supreme Court has stated that the efforts by the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused. [(1999) 3 SCC 507, State of Rajasthan v. Teja Ram] 13.7. The caution articulated by the Supreme Court in (2002) 5 SCC 234, Devender Pal Singh v. State of NCT of Delhi also emphasises that perfection in a case may not be natural when it stated thus:
"53. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singhv. Satpal Singh [(1990) 1 SCC 445 : 1990 SCC (Cri) 151 : AIR 1990 SC 209].
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 20 of 35 Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86 :
1992 SCC (Crl) 241 :AIR 1992 SC 840]
54. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State(Delhi Admn.) [(1978) 4 SCC 161 : 1978 SCC (Cri) 564 : AIR 1978 SC 1091]. Vague hunches cannot take the place of judicial evaluation.
"A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. ... Both are public duties...." (Per Viscount Simon in Stirland v. Director of Public Prosecution[1944 AC 315 : (1944) 2 All ER 13 : 113 LJKB 394] quoted in State of U.P. v. Anil Singh [1988 Supp SCC 686 :
1989 SCC (Crl) 48 : AIR 1988 SC 1998] , SCC p. 692,para 17.) (emphasis supplied).
13.8. In (1978) 4 SCC 161, Inder Singh & Anr. v. State (Delhi Administration) V.R. Krishna Iyer, J. wrote that:
―credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny...Proof beyond reasonable doubt is a guideline, not a fetish and guilty FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 21 of 35 man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up? Because the court asks for manufacture to make truth look? No, we must be realistic".
13.9. It is trite that accused persons are entitled to get benefit of doubt only when the prosecution fails to prove its case, therefore, the proof beyond reasonable doubt is a guiding factor and not an absolute rule.
LEGAL PROVISIONS
14. The accused Uttam has been charged for the offence punishable under Section 394, 398 IPC read with Section 34 IPC because he is stated to have attempted to commit robbery of Rs. 1,00,000/- from the complainant Smt. Sharda Rajput and also caused injuries on her hand by using a deadly weapon i.e. knife.
15. Law relating to the offence of robbery and causing hurt while committing the said robbery and using any deadly weapon at the time of committing the offence of robbery is laid down under Section390, 394 & 398 IPC.
15.1. Section 390 IPC defines robbery. It states that in all robbery there is either theft or extortion. Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 22 of 35 restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
Robbery is a special and aggravated form of theft and the chief distinguishing element in robbery is the presence of imminent fear of violence. When robbery is sought to be established through theft, then before one may be convicted of robbery theft by him must be proved and established.
15.2. Section 394 IPC states that if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to 10 years, and shall also be liable to fine.
To invoke section 394 Cr.P.C. hurt must be caused voluntarily for the end of robbery.
15.3. Section 398 IPC states that if, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than 07 years.
15.4. Section 398 IPC fix a minimum term of imprisonment when the attempt to commit robbery is done armed with deadly weapon. It does not make any act an offence and only provides minimum punishment for the offence. Section 34 IPC has no application in the construction of section and section 398 FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 23 of 35 IPC cannot be applied constructively and relates only to the offender who actually carries the weapon himself.
15.5. The victim/complainant is alleged to have received simple injury on her little finger of her left hand in terms of the MLC Ex. PW9/A at the time of commission of the attempt of robbery by the accused Uttam. Offence of simple hurt is defined under Section 319 IPC and punishable under Section 323 IPC.
15.6. According to Section 319 IPC causing of bodily pain, diseases or infirmities amounts to causing simple hurt.
15.7. Section 323 IPC provides punishment for causing voluntarily hurt which in turn is defined under section 319 IPC.
15.8. Keeping in mind aforesaid tenet, I am proceeding further and appreciating the evidence, brought on record by prosecution in the light of the testimonies of the prosecution and defence witnesses.
RECEIPT OF INFORMATION OF OFFENCE AND REGISTRATION OF FIR
16. The testimony of PW-1 HC Mukesh and PW-4 HC Balwant Singh shows that PW-4 along with ASI Virender went to the spot consequent to the receipt of information regarding the stabbing of complainant at WZ-226, Nangal Raya. However, the complainant/victim was found to have been shifted to DDU Hospital. Therefore, both of them went to DDU Hospital and FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 24 of 35 collected the MLC of complainant Smt. Sharda Rajput and recorded her statement leading to the registration of FIR Ex. PW1/A. The accused Uttam was also identified by the complainant being the assailant. The knife, used by the accused was also taken into possession at the instance/upon the identification of the complainant. Sketch of the knife Ex. PW2/C was prepared. The scooty used by the accused for reaching the spot was also seized vide seizure memo Ex. PW2/E. Therefore, the prosecution has proved the registration of the FIR Ex. PW1/A upon the complainant of the complainant/victim Ex. PW2/A. The testimony of these witnesses also proved the admission of the victim in the hospital vide MLC Ex. PW9/A. This also proved the pointing out/identification of the accused by the complainant/victim.
MEDICAL EVIDENCE
17. The testimony of PW-9 Dr. Arnab Pramanik, Sr. Medical Officer, Central Hospital, Singrauli, Madhya Pradesh and PW-8 Dr. V.K. Ranga, Head of the Department Forensic Medicine, BJRM Hospital, Jahangirpuri, Delhi shows that the victim/PW-2 was hospitalized in DDU Hospital on 24.02.2018 with the alleged history of physical assault. Her local examination shows clear incise wound (1 x .2 cm) over little finger tailing, abrasions over her left thumb were also found during her medical examination. The nature of injuries were found to be simple, sharp as well as blunt. The MLC of the victim was duly proved by PW-9 and the same proves that the complainant PW-2 received injury over her little finger of her left hand and the said injury was opined as simple. The prosecution FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 25 of 35 has also examined PW-8 Dr. V.K. Ranga who gave the subsequent opinion qua the weapon of the offence. His deposition shows that the knife Ex. P-1 seized by the Investigating Officer was produced before PW-8 for obtaining the subsequent opinion qua the said knife and the injuries received by the complainant/PW-2. The sketch of the said knife Ex. PW8/A was prepared by PW-8 and after measuring and examining the said knife, he gave the opinion that the injury mentioned in the MLC of complainant/injured/PW-2 Smt. Sharda Rajput could be possible by the weapon of offence i.e. knife produced before him. Detailed subsequent opinion of this witness was exhibited as Ex. PW8/B. 17.1. The prosecution has also examined PW-10 Dr. Sumender Kaur to prove that the knife Ex. P-1 was actually used by the accused for causing the injuries upon the little finger of left hand of the complainant. This witness has deposed that during biological examination of the samples of the present case, blood was detected on exhibit 1 and on exhibit 3. The DNA Examination of these samples shows that the profile of female origin was generated from the source exhibit 3 (knife). The DNA Profile generated from the source of exhibit 1 (blood sample of the victim) was similar with the DNA Profile generated from the source exhibit 3 (knife). The detailed report of PW-10 is exhibited as Ex. PW10/A. The genotype data of exhibit 1 and exhibit 3 was exhibited as Ex. PW10/B. 17.2. Therefore, the cumulative effect of the deposition of PW-9, PW-8 and PW-10 is that the prosecution has successfully proved from the aforesaid medical and forensic evidences that the FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 26 of 35 complainant/PW-2 Smt. Sharda Rajput received incise clear wound (1 x .2 cm) over little finger of her left hand. The said injury was simple in nature and caused by a sharp object i.e. knife Ex. P-1 which was seized in the present case and examined by PW-8. The forensic evidence also proves the use of the knife Ex. P-1 by accused for causing injury upon the complainant/PW-2.
OCULAR EVIDENCE
18. Ocular evidence is considered as the best form of evidence in a criminal trial, given that it is duly corroborated by other evidences and there is no reason to doubt it. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, in as much as, she sustains injuries in the incident. As such, there is an inbuilt assurance regarding her presence at the scene of the crime and it is unlikely that she will allow the real culprit to go scot free and would falsely implicate any other person.
18.1. In the case of Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259], it was held by the Hon'ble Supreme Court of India as under:
'Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built−in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness."
18.2. Further, in the case reported as Jarnail Singh & FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 27 of 35 others v. State of Punjab, (2009) 9 SCC 719, also it was held by the Hon'ble Supreme Court of India that testimony of an injured witness will have a special evidentiary status. It was held as under :
'.....the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.' 18.3. PW2 Smt. Sharda Rajput is the complainant/injured/victim herein. PW-3 Sh. Mukesh Kumar is the husband of the complainant/victim/injured. Both the said witnesses have correctly identified the accused Uttam before the Court.
18.4. PW-2 Smt. Sharda Rajput had categorically deposed that accused alongwith his one associate, entered her house. She is the complainant/victim as well as sole eye witness of the alleged incident. During recording of her deposition in the Court, she has identified the accused Uttam being the culprit who made an attempt to commit robbery of Rs. 1,00,000/- from her and had inflicted injury on her left hand's finger with a knife when PW-
2/complainant resisted accused's attempt to robe her. She had also caught the accused on the spot with the knife, used by the accused in committing the said offence. Co-accused had FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 28 of 35 managed to flee away from the spot. She has further deposed that when the accused was caught by her on the spot, her husband/PW-3 also reached on the spot and called the police. The accused, the victim/PW-2 were taken to the hospital by the police officials for treatment. PW-2 identified her statement/complaint which she had given to the police as Ex. PW2/A, site plan of the spot as Ex. PW2/B, sketch of the weapon of offence i.e. knife as Ex. PW2/C, seizure memo of the said knife as Ex. PW2/D and seizure memo of scooty of accused as Ex. PW2/E. She also identified the weapon of offence i.e. knife as Ex. P-1.
18.5. PW-2 was cross-examined at length by the learned counsel for the accused, however nothing was elicited in her cross-examination which could assail her credibility before the Court. The witness during her cross examination has further clarified that the incident had taken place within minutes, however, she could not tell the exact time as she was under fear due to incident. It is also deposed by her that she was taken to the DDU Hospital by the PCR after about 04.00 PM and was medically examined in the said hospital for about one hour. Thereafter, she was discharged from the said hospital. She has denied the suggestion that no knife was used by the accused or that the knife was planted upon the accused. She further denied the suggestion about the false implication of the accused due to their pending money disputes. She has also denied that she along with her husband visited the house of accused and gave beatings to him or that the present false case is filed against the accused for saving herself and her husband from the legal action regarding the beatings given to the accused by them.
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 29 of 35 18.6. The testimony of PW-2 is further corroborated from the testimony of her husband PW-3 Sh. Mukesh, who had identified the accused Uttam as his friend during his deposition in the Court. He had also deposed about knowledge of the accused regarding the availability of cash amount of Rs. 1,00,000/- at his home. It is also deposed by PW-2 that on the date of incident i.e. 24.02.2018, he reached at his home around 03.00 PM and found injury on the left hand of his wife Smt. Sharda Rajput/PW-2, who had caught the accused Uttam and informed him about the incident. PW-3 called the PCR and his wife as well as the accused were taken to DDU Hospital for medical examination. Accused was handed over to the Investigating Officer. Statement of his wife was recorded and the present FIR was registered. Spot inspection was done and the site plan was prepared at his instance. His wife/PW-2 handed over the knife used by the accused, to the Investigating Officer. Its sketch Ex. PW2/C was also prepared by the Investigating Officer and seized by the Investigating Officer. He also identified the said knife as Ex. P-1.
18.7. The deposition of PW-3 Mr. Mukesh corroborate the version of the incident given by the complainant/injured/PW- 2 and shows the presence of PW-3 on the spot. It also proves that PW-3 reached on the spot after the incident but at the time of apprehension of the accused Uttam by his wife/PW-2. It also proves that the police was called on the spot by PW-3 and the accused as well as his wife were taken to the DDU Hospital by the police. It also proves the arrest of accused as well as the FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 30 of 35 seizure of the knife used by the accused, for causing injuries upon his wife.
18.8. During her cross examination, PW-2 clarified that the incident of stabbing was not seen by him but the accused was apprehended by his wife with his help. He also denied the suggestion about the false implication of the accused in this case due to existence of a money dispute between them. It is also denied that the present false case is filed for protecting himself and his wife from the case of beatings given by them to the accused.
18.9. The testimony of PW-2 & PW-3 remains consistent and duly corroborated by each other.
18.10. It also shows that during the cross examination of PW-2 & PW-3, the accused has made an attempt to build his defence regarding the existence of a prior money dispute between them as well as giving beatings to the accused by these witnesses by visiting his home. The accused in his statement under Section 313 Cr. P.C has also claimed his innocence and his false implication due to the money dispute with the complainant's husband. However, the accused preferred not to lead any evidence in his defence despite being given an opportunity for the same. Therefore, the aforesaid defences of the accused are nothing but sham defences and has been taken without any substance. Therefore, these bald defences of the accused deserve to be discarded for want of any supporting oral/documentary material.
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 31 of 35 18.11. The accused, therefore, failed to probablize his defence.
18.12. Hence, I found the testimony of PW-2 and PW-3 as consistent, credible and trustworthy.
18.13. Though there are minor variations in the testimony of PW-2 and PW-3 regarding the manner of apprehension of the accused on the spot, this minor variation does not assail the credibility of otherwise reliable case of the prosecution.
18.14. The Hon'ble Supreme Court of India in the judgment reported as Bharwada Bhoginbhai Hijribhai v. State of Gujrat, 1983 (CRI) GJX 0252 SC, had pointed out the following reasons why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses. The reasons are:
(a) 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;
(b) 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;
(c) 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 FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 32 of 35 it might go unnoticed on the part of another;
(d) 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 unrealistic to expect a witness to be a human tape recorder;
(e) 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 'timesense' of individuals which varies from person to person;
(f) 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;
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made 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 moment. The subconscious 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-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
18.15. In view of the above cited judgment as well, the power of observation differs from person to person. The public FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 33 of 35 witnesses can only recall the main purport of the incident and it is unrealistic to expect them to be a human tape recorder. Witnesses ought to mix up facts later on.
18.16. It has been held by the Hon'ble Apex Court in catena of judgments that conviction can be based on the testimony of solitary witness if the testimony is of sterling quality and the witness is competent, honest and trustful. It is the quality of evidence and not the quantity which matters. PW-2 and PW-3 had withstood the test of cross-examination and had turned out to be witnesses of sterling quality.
18.17. The discrepancies and variations pointed out by the learned counsel for the accused in the deposition of public witnesses and in the deposition of police witnesses are minor contradictions and variations which do not strike at the root of the case of the prosecution.
CONCLUSION
19. 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 as all the facts established are consistent only with the hypothesis of the guilt of accused. There is no reasonable doubt left which can lead to the conclusion of innocence of the accused. Accordingly, the accused Uttam S/o Sh. Dhani Ram is hereby convicted for the charge of the offence punishable under Section 394 & 398 IPC read with Section 34 IPC.
FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 34 of 35
20. Let the convict be heard on the quantum of the sentence on the NDOH.
21. Copy of this judgment be supplied to the convict free of cost.
Announced in the open court on 13th day of March, 2024 (Sunil Kumar Sharma) Additional Sessions Judge-09 West:THC:Delhi:13.03.2024 CERTIFICATE:
It is certified that this judgment contains 35 pages and each page has been signed by me.
(Sunil Kumar Sharma) Additional Sessions Judge-09 West:THC:Delhi:13.03.2024 FIR No : 35/2018, SC No. 335/2018 PS : Mayapuri State Vs. Uttam Page No. 35 of 35