Delhi District Court
Madan Singh vs State on 27 April, 2017
IN THE COURT OF MS. SUNENA SHARMA, ADDL. SESSIONS
JUDGE-03(SOUTH), SAKET COURTS, NEW DELHI
CA No.44/2017
Madan Singh
s/o Sh. Anand Singh
r/o I-256, East Arjan Nagar,
AIIMS, New Delhi ..... Appellant
Vs.
State ..... Respondent
And
CA No.73/2017
Samson
s/o Sh. Albert John
r/o H. No. 251A, Munirka,
South-West Delhi, JNU,
Delhi-110067
Past Residence: 158, Gurjar Dairy.
Gautam Nagar,
New Delhi ..... Appellant
Vs.
State ..... Respondent
Date of institution of appeal : 21.02.2017 (CA No.44/17)
& 03.03.2017 (CA No. 73/17)
Final arguments concluded on: 27.04.2017
Date of final order :27.04.2017
CA No. 44/17 & 73/17
Madan Singh Vs. State & Samson vs. State Page No.1/17
JUDGMENT
1. Vide this common judgment, I shall decide two criminal appeals No. 44/2017 and 73/2017, vide which appellants have assailed the judgment dated 23.01.2017 and the order on sentence dated 25.01.2017 passed by Ld. Trial court in FIR No.562/2007 PS Hauz Khas. Vide impugned judgment, the appellants were held guilty for the offences punishable u/s 356/379 r/w section 34 IPC and vide impugned order on sentence both the convicts/ appellants were sentenced to undergo rigorous imprisonment for the period of two years for each of the offences punishable u/s 379/34 IPC and U/s.356/34 IPC and both the sentences were ordered to run concurrently. In addition to sentence of imprisonment, both the convicts were further directed to pay compensation of Rs.30,000/- each to the complainant within 45 days of the order on sentence.
2. Brief facts of the prosecution case as emanating from the trial court record and the present appeal are that on 10.09.2007, upon receipt of PCR call by ASI Rambir, who was posted as Duty officer in PS Hauz Khas, said DD was marked by said officer to himself and he alongwith Ct. Anil Kumar reached the spot in front of Laxman Public School where they met one lady namely Vasundhara, who complained about snatching of her gold chain by two boys, who were riding on a black motorcycle. Accordingly, IO recorded her statement Ex.PW1/A on CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.2/17 which he made his endorsement Ex.PW3/A and sent Ct. Anil Kumar to PS Hauz Khas for registration of FIR. After registration of FIR Ex.PW4/A, Ct. Anil Kumar reached the spot alongwith SI Sunil Kumar, to whom further investigation of the case was handed over.
3. During investigation on 16.10.2007, an information was received vide DD No.18A dated 16.10.2007 at PS Hauz Khas regarding arrest of two accused namely Samson and Madan Singh in a case FIR No.533/2007, PS Sarojini Nagar, wherein they made disclosure statements regarding their involvement in the present FIR. Thereafter, IO collected the copies of their disclosure statements from the IO of the aforementioned FIR of PS Sarojini Nagar; applied for their production before the concerned area MM; interrogated them with the permission of the court; formally arrested them vide arrest memo Ex.PW7/B and Ex.PW7/C. Thereafter, IO moved an application for conducting the TIP of both the accused persons before concerned Magistrate on 14.10.2007. During TIP proceedings, Ex.PW7/G conducted by Ld. Link MM in Central Jail Tihar on 30.10.2007, appellant Madan Singh refused to join the TIP on the plea that his photographs were taken in the police station and same were shown to the witness. However, appellant Samson expressed his willingness to join the TIP proceedings and he was duly identified by the complainant during his TIP proceedings Ex.PW7/F conducted on 03.11.2007 in Tihar Jail.
CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.3/17
4. After completing the investigation, IO filed the chargesheet before the Trial court against both the appellants and vide order dated 21.08.2008, charges for the offences punishable u/s 356/379/34 IPC were framed to which they both pleaded not guilty and claimed trial.
5. During trial, prosecution examined as many as six witnesses. PW1 ASI PD Meena deposed regarding arrest of both the appellants in case FIR No.533/2007 at PS Sarojini Nagar as he was posted in said police station on 16.10.2007. As per his version, the appellants had made disclosure statements Ex.PW1/A & Ex.PW1/B regarding which he informed the concerned IOs including the IO of the present FIR and later on handed over one copy of the same to him. PW1 correctly identified both the accused.
6. PW2 is the complainant Smt.Vasundhara. As per her examination in chief, on 10.09.2007 after de-boarding the bus at Panchsheel Bus stop, while she was approaching towards her house and reached near subway, she saw two boys standing with a motorcycle holding their helmets in their hands and when she proceeded a little ahead, both the said boys came on their motorcycle and one of them came towards her and inflicted cut injuries on her neck and snatched her gold chain and thereafter, both of them ran away from the spot on their motorcycle. She shouted for the help and immediately called police. After sometime, PCR van came to the spot alongwith local police and CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.4/17 she narrated the entire incident and her statement Ex.PW2/A was recorded by the police. Thereafter, she had gone to Tihar Jail on the request of the police to identify accused persons, where she had seen and identified both the accused. However, as per her version, her gold chain was never recovered.
7. PW3 SI Ramvir Singh, who on the relevant date had received the PCR call and pursuant thereto, he alongwith Ct. Anil Kumar reached the spot and recorded the statement of complainant as Ex.PW1/A and got the FIR registered on the basis of rukka through Ct.Anil Kumar. His examination in chief is also on the same lines.
8. PW4 ASI Yogender Dutt, is the duty officer, who registered the FIR Ex.PW4/A on the basis of rukka brought by Ct. Anil Kumar. PW5 is also a formal witness, who recorded DD No.18A at PS Hauz Khas on 16.10.2007 at 3.25pm after receipt of telephonic information from PS Sarojini Nagar regarding disclosure made by the present appellants in FIR No. 533/2007 at said PS. He proved said DD on record as Ex.PW5/A. The examination in chief of PW6 HC Anil Kumar is on the lines of the version of SI Ramvir Singh as he had reached the spot with SI Ramvir Singh and joined him in investigation till registration of FIR.
9. PW7 is the IO of the case, who filed the chargesheet before the court. He proved on record the arrest memo as well CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.5/17 as disclosure statements of both the appellants Madan Singh and Samson as Ex.PW7/B to Ex.PW7/E respectively. As per his testimony, he had prepared the site plan Ex.PW7/A at the instance of the complainant and also recorded the statement of witnesses u/s 161 Cr.PC. On 16.10.2007, after receipt of DD No.18A, regarding arrest of convicts Samson and Madan Singh in a case registered at PS Sarojini Nagar, he collected the copies of their disclosure statements and subsequently interrogated the convicts with the permission of the court and arrested them vide arrest memo Ex.PW7/B and Ex.PW7/C and also recorded their disclosure statement Ex.PW7/D and Ex.PW7/E. Thereafter, he moved an application before concerned Area MM for conducting their TIP but on the date fixed for TIP, only Samson got his TIP conducted whereas appellant Madan Singh refused to join the TIP proceedings. Later on, complainant went to the court when the appellant Madan Singh was produced before the concerned court from Judicial custody and at that time, she identified him. After completion of investigation, IO filed the chargesheet before the trial court.
10. In the statement recorded u/s 313 Cr.PC, appellants denied the prosecution case and came up with the plea that they were innocent and had been falsely implicated in this case by the police. On the question as to why the witnesses have deposed against them, they replied that they were interested witnesses.
CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.6/17
11. After consideration of the evidence adduced on record, Ld. Trial court convicted both the appellants for the offences u/s 356 and 379 IPC r/w section 34 IPC and vide order on sentence both were sentenced to rigorous imprisonment for two years each for both the said offences and the sentences were ordered to run concurrently. In addition to that, appellants were further directed to pay compensation to the tune of Rs.30,000/- to the complainant.
12. Aggrieved from the aforementioned judgment and sentence order, both the convicts/appellants filed the present appeals mainly on the grounds that the judgment of conviction and sentence are contrary to the evidence on record as the trial court failed to appreciate material contradictions going to the root of the case; that Ld. trial court failed to appreciate that the complainant in her examination in chief before the court improved her version by stating about the injury mark allegedly inflicted on her by the convicts whereas no such allegations were raised by her in her statement recorded before police; that the version of complainant without any corroboration from any independent witness was not trustworthy; that the police failed to join any independent witness despite the fact that as per their own case, lot of crowd had gathered at the spot after the incident; Ld. trial court failed to appreciate that the convicts were not arrested from the spot nor the recovery of alleged stolen chain was effected from them; that Ld. trial court failed to appreciate that the person to whom the convicts allegedly sold CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.7/17 out the stolen chain as per their disclosure statements was neither arrested nor any investigation was done in that regard; that Ld. trial court failed to appreciate that though the convicts were apprehended in 14 similar cases but except the present case, the convicts have been discharged or acquitted in all other cases; Ld. trial court failed to appreciate that the complainant neither to the police nor in the court stated as to whom of the two convicts had snatched her chain and who was driving the motorcycle at the time of alleged incident; Ld. trial court failed to appreciate that after the alleged identification of the convicts Madan Singh in Patiala House Courts by the complainant, no supplementary statement of complainant in that regard was ever recorded by the police; Ld. trial court failed to appreciate that how the complainant was able to see the faces of the offenders, who snatched away her chain when they were allegedly wearing the helmets at the time of commission of offence; Ld. trial court failed to appreciate that as per complainant, her statement was recorded only once on 10.09.2007, whereas prosecution has placed on record her two statements of the same date and further that Ld. trial court further failed to appreciate that the disclosure statements of the convicts in police custody was not admissible as the same never led to any recovery from any of them.
13. On the aforementioned grounds of appeal, counsels have prayed for setting aside of both the impugned judgment as well as the order on sentence.
CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.8/17
14. The arguments of respective counsels for the appellants is more or less on the lines of grounds of appeals as cited above. The main thrust of arguments is on the discrepancies in the statement of the complainant as it is contended that she has given two contrary versions, one before the police and one while deposing in the court. It is contended that in the statement Ex.PW2/A, the complainant stated that at the time of alleged incident, the convicts/appellants were wearing helmets, whereas in her deposition before the court, she stated that they were holding their helmets in their hands at the time of incident. Further, she improved her version by adding that she was also inflicted injuries by blade by one of the co-accused while snatched away her golden chain from her neck. Whereas, no such case was narrated by her in her statement made before police. Counsel further submitted that on account of said improvements /discrepancies in the statement of complainant, her testimony was not trustworthy and Ld. trial court has fallen into grave error by holding the convicts/appellants guilty by placing reliance upon her testimony.
15. On the other hand, Ld. Addl. PP rebutted the arguments by submitting that complainant is the victim of offences and she absolutely had no reason for falsely implicating the innocent persons who are not connected with the offences. He further submitted that complainant has given a cogent and CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.9/17 clinching evidence as her testimony remained unshaken through out her cross examination and trial court has rightly convicted the appellants basing reliance on her truthful version. It is further submitted that impugned judgment is well reasoned and therefore, does not call for any interference by this court.
16. I have given my thoughtful consideration to the submissions made by Ld. Counsel Sh. S.S. Bhatia for appellant Madan Singh, Ld. counsel Ms. Jyoti Gupta, for appelant Samson as well as Sh. Rakesh Mehta, Ld. Addl. PP for the state and also perused the entire trial court record.
17. It is true that minor contradictions in the deposition of the witness cannot be dubbed as improvements but in case the contradictions are so material that same go to the root of the case, materially affect the trial or core of prosecution case, the court has to form its opinion about the credibility of the witness and find out whether his deposition inspires confidence.
18. In State of U.P. vs. Naresh, (2011) 4 SCC 324, Hon'ble Apex Court after considering a large number of its earlier judgments held:
" 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, CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.10/17 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 in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
19. Considering the above position of law, it is clear that if on account of some material discrepancies, a doubt is created on the prosecution case, the accused would be entitled to benefit of that doubt. But, for deriving such benefit, the discrepancy in version should be of such nature which goes to the root of the matter. Hence, discrepancies must be grave and material to the matter in issue so as to prove fatal to the charges.
20. The convicts/appellants were arrested in the instant case on the basis of their disclosure statements made in FIR No. 533/07, PS Sarojini Nagar and the appellant Madan Singh was later on identified by the complainant in the court while appellant Samson was identified during TIP proceedings conducted in Tihar Jail. No recovery of stolen article was effected CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.11/17 from any of the appellants and therefore, the whole case of the prosecution is based upon the testimony of the complainant.
21. Complainant, who is the victim of offence is the star witness of prosecution case. She proved her statement as Ex.PW2/A on the basis of which rukka Ex.PW3/A was prepared and FIR Ex.PW4/A was registered. Ld. respective counsels for appellants have raised the contention that the version of complainant is not trustworthy as there are several discrepancies in her statement which have been completely overlooked by the trial court.
22. I have carefully gone through both the statements of complainant i.e. one given to police on 10.09.2007 Ex.PW2/A and the other recorded before trial court on 15.07.2011. After analyzing both the statements, it appears that the complainant has improved her version while deposing in the court as in the testimony recorded on 15.07.2011 she deposed that on 10.09.2007, she de-boarded the bus at Panchsheel Bus Stop and proceeded towards her house at police colony and when she was walking on the sub-way she saw two boys standing with a motorcycle holding their helmets in their hands and when she proceeded little ahead, both the said boys came on their motorcycle and one of them came towards her, inflicted cut injury on her neck and snatched her gold chain. In her cross examination, she deposed that accused Madan Singh whom she correctly identified in the court had given her cut injury on her CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.12/17 neck with a blade but she did not get her medical examination conducted for said injury nor she had taken any treatment for the same. As per her version, she however had shown said cut injury to the police.
23. Here, it is worthwhile to note that none of the witnesses of the investigating team including the IO utter a word about any such injury allegedly sustained by the victim during the course of alleged incident. Even, the victim in her statement Ex. PW2/A or in the supplementary statement recorded u/s 161 Cr.P.C. on the very same date of incident, nowhere raised any such allegation regarding her having sustained any cut injury on her neck. It is nowhere the victim's case that she sustained said cut injury on the neck in the process of snatching. As per her version she was inflicted injury on her neck with a blade. The injury on the neck which is a very delicate and sensitive part of human body could prove fatal if not attended and taken care in time. In such circumstances, it seems highly improbable that a person who had suffered injury with a blade on neck would not get himself examined or would not bring this fact into the notice of the police. Whereas, as per the IO no such injury was reported by the complainant to him when he reached the spot or when he recorded her statement.
24. Although, the above fact of sustaining cut injury on the neck of the victim is not very material so far as the allegations of theft/snatching is concerned. However, said fact CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.13/17 assumes importance for ascertaining the trustworthiness of the witness on whose sole account the entire case of prosecution is based. As already noted above, no recovery of stolen chain was effected from the convicts/appellants. In this scenario, it is very important to carefully analyze the entire version of the victim in the light of the testimony of other prosecution witnesses in order to ascertain her truthfulness and credibility.
25. As per her statement Ex. PW2/A, both the boys were wearing helmets and the complainant could identify them because the glass of their helmets was white/transparent. In this statement Ex. PW2/A, she nowhere stated that she had the occasion to see their faces while they were without helmets. Whereas, in her examination in chief she deposed that both the said boys were standing with their motorcycle and holding their helmets in their hands; when she proceeded little ahead, both the boys came on their motorcycle and one of them came towards her, inflicted cut injury on her neck and snatched away her gold chain. Thereafter, both of them ran away from the spot on their motorcycle. Here, the complainant nowhere stated that when she was attacked or when her chain was snatched, the culprits were wearing their helmets.
26. In view of the fact that version of the complainant regarding the position of the helmets at the time of alleged incident was different from what she narrated to the police, therefore, she was specifically asked this question by Ld. CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.14/17 Defence counsel in her cross examination to which she admitted that in her statement Ex. PW2/A she had not stated that the accused persons were holding the helmets in their hands and had only stated that they were wearing the helmets and she could saw their faces through glass of their helmets. But, she did not come forward to explain the said discrepancy in her two statements made at two different points of time. In these circumstances, when the witness has preferred to keep mum and did not explain the discrepancy in her two statements, it would not be appropriate to assume that she might have seen their faces while they were standing with their motorcycle without helmets or that they would have worn the same only while snatching the chain from her neck. Had it been so, the complainant had all the opportunity to explain as to why she had given a different statement in her first statement to police where she had stated that though the boys were wearing the helmets but she could identify them because she had seen their faces through the transparent glass of their helmets. In the background of these circumstances, the aforementioned discrepancies arising in her statements could not be termed as mere improvements or trivial discrepancies to treat them as immaterial for believing the prosecution case.
27. There cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.15/17 statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Reliance placed on the judgment of Hon'ble Supreme Court in Laxmibai (dead) through LRs & Anr. vs. Bhagwanthuva (dead) through LRs & Ors, AIR 2013 SC 1204. In the instant case, defence has duly discharged its obligation by specifically confronting the complainant i.e. PW1 with her statement Ex. PW2/A, wherein she had given a different version. But despite that, she did not come forward to explain the discrepancies.
28. Having regard to the aforementioned discussion, I am of the opinion that the version of the complainant suffers from material discrepancies which remained unexplained during trial and thus, they are sufficient to raise doubt on the credibility and truthfulness of her version. In these circumstances, in absence of any corroboration from any independent witness, the sole version of the complainant which is not inspiring any confidence, cannot be relied upon to sustain conviction. In my considered view, the appellants were entitled to be given the benefit of doubt and trial court has fallen into grave error in basing the conviction on the sole testimony of complainant, especially when the same lacked credibility and trustworthiness on account of above discussed unexplained discrepancies.
29. Accordingly, the present appeals have been allowed. The impugned judgment dated 23.01.2017 and impugned order CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.16/17 on sentence dated 25.01.2017 are set aside.
30. In view of setting aside of judgment of conviction, accused persons are directed to furnish personal bond in the sum of Rs.20,000/- each with one surety each of the like amount in terms of Section 437-A Cr.P.C. before Ld. Trial Court within 7 days. Accused Samson shall be released from custody only subject to compliance of said directions.
31. TCR be sent back alongwith copy of this judgment.
32. Appeal file be consigned to record room.
Announced in open Court on 27.04.2017 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi CA No. 44/17 & 73/17 Madan Singh Vs. State & Samson vs. State Page No.17/17