CHAMAN LAL @ SUBHASH vs STATE OF N.C.T. OF DELHI

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: November 24, 2023
Decided on: December 05, 2023
+ CRL.A. 870/2023 & CRL.M. (BAIL) 1450/2023

CHAMAN LAL @ SUBHASH ….. Appellant
Through: Mr. Faiz Imam, Advocate.

V

STATE OF N.C.T. OF DELHI ….. Respondent
Through: Mr. Yudhvir Singh Chauhan, APP for State with SI VivekTomar, P.S. Govind Puri.

CORAM
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
J U D G M E N T
1. The present criminal appeal is filed under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) to set aside the judgement dated 23.05.2023 (hereinafter referred to as “the impugned judgment”) and order on sentence dated 29.08.2023 (hereinafter referred to as “the impugned sentence order”) passed by the court of Sh. Sachin Sangwan, Additional Sessions Judge-01 (Fast Track Court), South-East, Saket Courts, New Delhi (hereinafter referred to as “the trial court”) in sessions case bearing no. 275/2018 titled as State V Chaman Lal @ Subhash arising out of FIR bearing no 0114/2018 registered as PS Govind Puri.
2. The factual background of the case is that Balram (hereinafter referred to as “the complainant”) on 03.04.2018 at about 8-8:30 pm was going to purchase vegetables from vegetable market and reached Ravidas Marg near 429 bus stop then one boy came and after pointing a knife at the complainant, snatched one brown colour purse containing Rs.830/- besides documents including Aadhaar Card, Voter Card, etc. and also extended threat to kill the complainant. The complainant raised an alarm and the said boy tried to flee from the spot but was apprehended by the police party comprising of ASI Faiyaz Ahmad, HC S.B. Sahib and Ct. Satya Prakash who were on patrolling duty in the area .The boy was identified as Chaman Lal (hereinafter referred to as “the appellant”) and on search, one brown colour purse along with documents was recovered from the right pocket of his pant and one knife used for vegetable cutting was also recovered from the left pocket of pant of the appellant/accused. ASI Faiyaz Ahmad seized the knife and purse along with the documents after completing the formalities of further investigation. ASI Faiyaz Ahmad (hereinafter referred to as “the Investigating Officer”) recorded the statement of the complainant. Rukka was prepared and FIR bearing no 0114/2018 was got registered under sections 392/397/506/411 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) at P.S. Govind Puri. The Investigating Officer after completion of the investigation filed the charge sheet for the offences punishable under sections 392/397/506/411 IPC. The case was committed to the Court of Sessions after filing of the charge-sheet and compliance of section 207 of the Code vide order dated 04.06.2018 passed by the court of Sh. Harun Pratap, Metropolitan Magistrate-04, South-East, Saket Courts, New Delhi. The court of Sh. Gulshan Kumar, Additional Sessions Judge-03, South-East, Saket Courts, New Delhi vide order 17.09.2018, framed the charges for the offences punishable under sections 392/397/411 IPC against the appellant to which he pleaded not guilty and claimed the trial.
2.1 The prosecution in support of its case examined 06 witnesses including the complainant as PW-1 and the Investigating Officer ASI Faiyaz Ahmad as PW-6. The appellant was examined under section 313 of the Code wherein he denied incriminating evidence and pleaded false implication and innocence. The appellant stated that he was sitting outside the house and then 6-7 police officials came and took him to the police station on the pretext that the senior police official is calling him. The appellant was made to sign some blank papers. The appellant preferred not to lead defence evidence.
2.2 The appellant was convicted for the offence punishable under section 397 IPC vide impugned judgment and vide impugned sentence order he was sentenced to rigorous imprisonment for a period of 07 years for the offence punishable under section 397 IPC along with fine of Rs.20,000/- and in default of the payment of fine, the appellant was sentenced to further undergo simple imprisonment for a period of 04 months. The benefit under section 428 of the Code was extended to the appellant. The appellant has not paid the fine imposed vide impugned sentence order.
3. The appellant being aggrieved filed the present appeal to challenge the impugned judgment and sentence order on the grounds that the prosecution could not prove its case against the appellant beyond the reasonable doubt as no offence punishable under section 397 IPC could be made out against the appellant. The complainant himself has falsified the prosecution case and denied the happening of the incident subject matter of the present FIR as the complainant as PW1 deposed that his signatures were taken on certain blank papers. The complainant could not identify the appellant as the robber during his examination before the trial court. The complainant also could not identify the case property i.e. the knife, purse and other documents. The complainant also denied recovery of knife Ex.P1 alleged to have been used as a weapon of offence from the possession of the appellant. The complainant has also denied the seizure of the knife vide seizure memo Ex. PW1/E and his signatures on the documents prepared during the investigation. The appellant prayed that the appeal be accepted and the impugned judgment as well as impugned sentence order be set aside.
4. The prosecution during the trial of the case arising out of FIR bearing no 0114/2018 in support of its case examined the complainant as PW1. The complainant/PW1 during examination-in-chief recorded on 26.10.2018 deposed that on 03.04.2018 at about 8/8:30 pm, he was going to the market from his house and reached near bus stand on the bus plying on the route no 429 at Ravidas Marg then the appellant came and pointed a knife towards him and took his purse/wallet containing Rs.830/- approximate in cash along with other documents. The complainant/PW1 raised alarm and one police official came after hearing the alarm and apprehended the appellant. The purse/wallet containing the above mentioned articles was recovered from the pocket of the pant of the appellant and his statement Ex. PW1/A was recorded at the police station by the police. The complainant/PW1 further deposed that the recovered purse/wallet containing the above-mentioned articles was seized vide seizure memo Ex. PW1/B after converting into a pullanda and the appellant was also arrested vide arrest memo Ex. PW1/C. The complainant /PW1 in further examination recorded on 13.07.2022 deposed that the said site plan Ex. PW1/D, sketch of the knife Ex. PW2/A and its seizure memo Ex. PW1/E bear his signatures. The complainant as PW1 further deposed that the sketch of knife Ex. PW2/A and seizure memo of knife Ex. PW1/E were blank paper when he put his signatures. The complainant/PW1 identified the currency notes as Ex. P2 but could not identify the purse and the documents and deposed that those items do not belong to him. The complainant /PW1 also could not identify the knife Ex. P1 alleged to be used by the appellant during the commission of offence subject matter of the present FIR. The complainant/PW1 also did not identify the appellant as the person who was apprehended by him with the help of police official as at the time of commission of the offence as the face of the assailant was covered with a cloth.
4.1 The complainant/PW1 was cross-examined by the Additional Public Prosecutor and during cross-examination, he denied the suggestions that on the day of incident, a knife Ex. P1 was recovered from dub of the appellant or that he identified the said knife Ex. P1 which was recovered from the possession of the appellant or that the knife Ex. P1 was measured and the sketch Ex. PW2/A was prepared by the police officials or that the knife Ex. P1 was sealed with the seal of SK and was taken into possession or that the sketch and seizure memo Ex. PW2/B was prepared by the police which was signed by him or that he has not intentionally identified the knife Ex. P1 and other documents Ex. P2 and the appellant. The appellant in the cross-examination conducted by the defence counsel deposed that he has deposed by making a correct statement.
4.2 The prosecution also examined Ct. Satya Prakash Yadav as PW2, HC S.B. Sahib as PW3 and the Investigating Officer ASI Faiyaz Ahmad as PW6. These PWs deposed that on 03.04.2018, they were on the patrolling duty at Ravidas Marg and at about 8/8:30 pm, they were present in front of Faujdaar Medical Store near bus stop 429 where they saw that one boy was being chased by other persons and HC S.B.Sahib/PW3 and Ct. Satya Prakash Yadav/PW2 caught the said boy who was subsequently identified as the appellant. PWs further deposed that the person i.e. the complainant/PW1 who was chasing the appellant informed them that the appellant has robbed his purse by showing a knife. Thereafter on search of the appellant one knife Ex. P1 used as vegetable cutter was recovered behind his belt and one purse stated to be robbed was recovered from his right pocket which was identified by the complainant/PW1. The purse was found to be containing Rs.830/- along with other documents Ex.P2. The Investigating Officer conducted further investigation after recording the statement of the complainant/PW1/A. The PWs identified the knife as Ex. P1 and purse and other documents collectively as Ex. P2.
5. The trial court while passing the impugned judgement has relied upon the testimony of the complainant/PW1 and the testimonies of the Ct. Satya Prakash Yadav/PW2, HC S.B. Sahib/PW3 and Investigating Officer ASI Faiyaz Ahmad/PW6. The trial court observed that the complainant/PW1 categorically deposed regarding the incident wherein his purse containing cash and other items Ex. P2 was robbed at the point of knife Ex. P1. The complainant/PW1 has given sufficient details regarding the incident in his testimony. The trial court further observed that FIR bearing no. 0114/2018 was got registered without any delay wherein the complete details of the robbery were mentioned. The defence counsel has not cross-examined the complainant/PW1. The trial court has opined that from the testimony of the complainant Ex. PW1 it was proved that a robbery took place at the given time and place. The trial court has also observed that although the complainant/ PW1 has not identified the appellant but believed that in statement Ex.PW1/A, the complainant/PW1 has mentioned the correct name of the appellant. The complainant/PW1 has also deposed that the appellant was arrested and the arrest memo PW1/C contained his signatures. That trial court relied upon part of the testimony of the complainant/PW1 despite he being turning hostile qua the identification of the appellant and recovery of the case properties Ex. P2 and knife Ex. P1 after referring Khujji @ Surender Tiwari V State of MP, 1991 CrLJ 2653 and Deepak Kumar V State, Criminal Appeal bearing no 149/2000 decided on 03.12.2013. The trial court also found support from the respective testimonies of the Ct. Satya Prakash Yadav/PW2, HC S.B. Sahib/PW3 and ASI Faiyaz Ahmad/PW6 pertaining to the chasing and apprehension of the appellant and recovery of the case property Ex. P2 and the weapon of offence i.e. the knife Ex. P1. The trial court has placed reliance on the testimonies of the police officials in view of the judgement Pramod Kumar V State (GNCT) of Delhi AIR 2013 SC 3344.
6. The counsel for the appellant argued on the basis of grounds as taken in the present appeal and further argued that there are material contradictions in the respective testimonies of the witnesses examined by the prosecution which are sufficient to raise substantial doubts as to the prosecution story. The counsel for the appellant argued that the appellant is liable to be acquitted.
7. The Additional Public Prosecutor for the respondent/State argued that from the evidence led by the prosecution, particularly, in the light of testimony of the complainant/PW1, the prosecution is able to prove its case beyond reasonable doubt. The impugned judgment and impugned sentence order were passed by the trial court after proper appreciation of the evidence and cannot be set aside and the present appeal is liable to be dismissed.
8. It is accepted legal proposition that the entire testimony of a hostile witness cannot be rejected but the testimony of a hostile witness required to be scrutinised with care and caution and it should be credible and can be safely relied upon. The Supreme Court in various decisions has discussed admissibility of testimony of a hostile witness. The Supreme Court in State of U.P. V Ramesh Prasad Misra and another, (1996) 10 SCC 360 held that the evidence of a hostile witness should not be totally rejected but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. The Supreme Court in C. Muniappan and Others V State of Tamil Nadu, (2010) 9 SCC 567 held that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law can be used by the prosecution or the defence. The Supreme Court in Mrinal Das and Others V State of Tripura, (2011) 9 SCC 479 held as under:
67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.
The Supreme Court in Arjun V State of C.G., 2017 (2) MPLJ (Cri.) 305 held that merely because the witnesses have turned hostile in part, their evidence cannot be rejected in toto. The evidence of such witnesses cannot be treated as effaced altogether but the same can be accepted to the extent that their version is found to be dependable and the court shall examine more cautiously to find out as to what extent he has supported the case of the prosecution. The testimony of PW2/the complainant cannot be rejected as he did not support case of prosecution in cross examination.
9. The entire testimony of the complainant/PW1 cannot be rejected in entirety but it should inspire confidence and should be trustworthy and credible. The testimony of the complainant/ PW1 is required to be scrutinized with care and caution. The testimony of the complainant/ PW1 only proved that on 03.04.2018 at about 8/8:30 pm near bus stand of the bus plying on route number 429 at Ravidas Marg, his purse containing cash amount and other documents was robbed at the point of knife and the person who had robbed the purse at the point of knife was apprehended at the spot by the police officials i.e. the Ct. Satya Prakash Yadav/PW2, HC S.B. Sahib/PW3 and ASI Faiyaz Ahmad/PW6. It is also appearing that the statement Ex. PW1/A of the complainant/PW1 was recorded by the investigating officer ASI Faiyaz Ahmad/PW6. However, the complainant/PW1 could not identify the appellant as the person who robbed his purse Ex. P2 which was stated to be recovered from the possession of the appellant. The complainant/ PW1 also did not identify the weapon of offence i.e. knife Ex. P1 alleged to have been recovered from the possession of the appellant. It is correct that the complainant/PW1 has identified his signatures on certain documents alleged to have been prepared during the investigation but he simultaneously deposed that the seizure memo of document Ex. PW1/B and sketch Ex. PW2/A were blank papers when he signed those documents. The investigating officer ASI Faiyaz Ahmad/PW6 in his cross-examination deposed that he was not the eyewitness of the incident of robbery. Accordingly, the testimonies of the police officials are not sufficient to prove that the appellant has actually committed the offence subject matter of the present FIR and has robbed/snatched the purse containing cash amount of Rs.830/- and other documents Ex. P2 from the possession of the complainant/PW1. The respective testimonies of the police officials examined by the prosecution only prove that the investigating officer ASI Faiyaz Ahmad/PW6 has conducted the investigation after the assailant was being arrested by them and the complainant/PW1 was robbed of the purse containing amount of Rs.830/- and other documents Ex. P2 but it is not proved that the appellant has actually robbed/snatched the purse Ex. P2 from the possession of the complainant/PW1 after showing knife Ex. P1 to him. The testimony of the complainant PW1 even after scrutinizing with care and caution cannot be relied upon to prove guilt of the appellant beyond reasonable doubts.
10. Every person accused of an offence is presumed to be innocent and burden lies upon the prosecution to establish the guilt of the accused beyond reasonable doubt. The Supreme Court in Shivaji Sahabrao Bobade and Another V State of Maharashtra, (1973) 2 SCC 793 emphasized that our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. The Supreme Court in State of U.P. V Shanker, AIR 1981 SC 897 observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. The Supreme Court in Gurbachan Singh V Sat Pal Singh and Others, AIR 1990 SC 209 observed that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. The Supreme Court in Krishna Mochi and Others V State of Bihar, (2002) 6 SCC 81 observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suffering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was further observed the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is in practice changing world over and courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. However, the Supreme Court in Sujit Biswas V State of Assam, (2013) 12 SCC 406 also held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture.The evidence led by the prosecution is not sufficient to connect the appellant with the alleged offence. The trial court has not decided guilt of the appellant in accordance with law. The impugned judgement is appearing to be primarily based on the assumption and presumption and not on the basis of evidence led by the prosecution. The quality and quantum of the evidence led by the prosecution is not sufficient to connect the appellant with the alleged offence. No reliance can be placed on the testimony of the complainant/PW1 to hold the appellant guilty of the offence for which the appellant was charged. The impugned judgement and impugned sentence order cannot sustain in the eyes of law as substantial doubts are appearing from the evidence led by the prosecution as to the guilt of the appellant. The appeal is accordingly allowed and the impugned judgment and sentence order are set aside. The appellant is directed to be released immediately if not required in any other case.
11. The present appeal along with pending applications if any stands disposed of.
12. Copy of this judgment be sent to the appellant through concerned Jail Superintendent for information and be also sent to the trial court for information.

DR. SUDHIR KUMAR JAIN
(JUDGE)
DECEMBER 05, 2023
N/AK/SD

CRL.A.870/2023 0Page 18