Delhi High Court
Ajay vs State on 1 June, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 1st June, 2017
+ CRL.A. 1761/2014
AJAY ..... Appellant
Represented by: Mr. Biswajit Kumar Patra,
Adv., Mr. Bharat Chugh, Adv.
(amicus curiae) with appellant
produced in custody.
versus
STATE ..... Respondent
Represented by: Ms. Rajni Gupta, APP for State
with SI Pritosh Rathore PS Kirti
Nagar.
+ CRL.A. 1302/2015
RATAN alias TANU ..... Appellant
Represented by: Mr. Imran Khan, Adv.
DHCLSC, Mr. Bharat Chugh,
Adv. (amicus curiae) with
appellant produced in custody.
versus
STATE ..... Respondent
Represented by: Ms. Rajni Gupta, APP for State
with SI Pritosh Rathore PS Kirti
Nagar.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. Vide impugned judgment dated 13th October, 2014 Ajay and Ratan @
Tanu were convicted for offence punishable under Section 392/34 IPC.
Ratan @ Tanu was also convicted for offences punishable under Section 397
IPC and Section 25/27 Arms Act. Vide order on sentence dated 15th October,
2014 both Ajay and Ratan @ Tanu were sentenced to undergo rigorous
imprisonment for a period of five years and to pay a fine of ₹1,000/- each for
offence punishable under Section 392/34 IPC. Ratan @ Tanu was further
sentenced to undergo rigorous imprisonment for period of seven years and to
pay a fine of ₹1,000/- for offence punishable under Section 397 IPC and
rigorous imprisonment for period of one year for the offence punishable
under Section 25/27 Arms Act.
2. Learned counsels for the appellants contend that a bare reading of the
testimony of the complainant would show that it is full of contradictions; not
only did he fail to identify alleged recovery made by the Police officers, in
his cross-examination the complainant even failed to identify the appellants.
The entire prosecution case is based on the testimony of one single
complainant and since his testimony is not trustworthy, no conviction can
safely be based on the said testimony. The complainant has belied the
version of the Police officers that the arrest was made at his instance and on
his information. The entire prosecution case was concocted to avoid the test
identification parade as the complainant was not in a position to identify the
appellants before the Metropolitan Magistrate. The appellants have been
falsely implicated and thus be acquitted.
3. Learned APP for the State on the other hand contends that in respect
of the identification of the appellants there is no anomaly in his examination-
in-chief. Though the complainant stated that the recoveries were not made in
his presence, however he identified the signatures on all the memos and thus
proved that the arrest and recoveries were made in his presence. She further
contends that the evidence of a hostile witness cannot be effaced totally and
if part testimony of the witness is corroborated in material particulars by the
testimony of the Police witnesses, the same should be relied upon and
conviction based thereon. Reliance is placed on the decision reported as
(2006) 2 SCC 450 Radha Mohan Singh @ Lal Saheb & Ors. Vs. State of
U.P.
4. Process of law was set into motion on 16th June, 2011 around 12:30
A.M. when information was received that opposite M.S. Garden SBI, in
Tanki Wala Park, two boys while walking snatched the mobile and purse of
the caller and ran away. The aforesaid information was recorded vide DD
No. 3A (Ex. PW-8/A) and assigned to SI Surta Nand. He along with Ct.
Naresh reached the Park but on search no person was found. After they
returned back to the police station, around 1:30 A.M., complainant
Harshdeep Singh came to the police station and got recorded his statement
(Ex. PW-1/A). He stated that he was a resident of B-400, III Floor,
Sudarshan Park, Moti Nagar, New Delhi and worked at AAA Maruti
workshop, Kirti Nagar, Industrial Area. On 16th June, 2011 at about 12:00
A.M. when he was going to his residence from his work on motorcycle
bearing no. DL-3CAQ-6089, he stopped his motorcycle near the park, State
Bank of India, Mansarover Garden for urinating. Since the road was well
illuminated, so he went inside the park. When he was returning, suddenly
two boys surrounded him. One of them put a knife on his neck and asked
him to handover whatever he had and the other boy started searching him.
He got very scared on seeing the knife, thus he did not resist. He gave them
his mobile with number 9268449737 and his wallet which had ₹1200 in it
and both the persons fled away. The boy who had shown him the knife was
cock-eyed, about 5 feet 2 inches in height and was wearing a white and red t-
shirt with black jeans. The other boy was dark complexioned and was around
5 feet 5 inches in height. He was wearing a light purple kurta and blue jeans.
He stated that if the two boys came before him, he could recognize them.
After those two boys had run away, he took the phone from a stranger and
called at 100 number. On the basis of aforesaid information, FIR No.
167/2011 (Ex. PW-2/A) was lodged under Sections 392/397/34 IPC at PS
Kirti Nagar.
5. Thereafter, Harshdeep accompanied the police officers to the spot. SI
Surta Nand prepared the site plan (Ex. PW-1/B) at the instance of
Harshdeep. Harsheep produced the receipt Ex.PX of the purchase of mobile
phone which was seized vide memo Ex. PW-1/H. On the same day,
Harshdeep informed SI Surta Nand that he saw one of the robbers near Jhule
Wala Park, Mansarover Garden, who can be apprehended if a raid is
conducted. Consequently, SI Surta Nand along with SI Dinesh, Ct. Praveen
and Harshdeep left for the Park and apprehended one person on the pointing
out of Harshdeep and his name was revealed as Ratan @ Tanu. On his
personal search, one button actuated knife was recovered from the right
pocket of the pant and one black and brown colour purse was recovered from
the rear pocket of his pant which was found containing currency note of
₹500/- and photocopy of the PAN card of Harshdeep. SI Surta Nand
measured the knife and prepared its sketch vide Ex.PW-1/1 and seized the
same vide seizure memo Ex. PW-4/A. The purse containing currency note
of ₹500/- and photocopy of the PAN card was seized vide seizure memo
Ex.PW-1/D. Ratan @ Tanu was arrested vide memo Ex.PW-1/G, his search
was conducted vide memo Ex.PW-1/G-1 and his disclosure statement
recorded vide Ex. PW-1/E. Pursuant to the disclosure statement of Ratan @
Tanu, they reached Bihari Chowk, where one person was standing near the
road side and Harshdeep identified the said person as the companion of
Ratan @ Tanu. Ratan @ Tanu also identified him as Ajay. He was
apprehended and on enquiry his name was confirmed as Ajay. On the search
of Ajay, one mobile phone was recovered from the right pocket of his pant
and the same was identified by Harshdeep. The mobile phone which was of
black colour and make Huawai was seized vide memo Ex. PW-1/C. Ajay
was arrested vide arrest memo Ex. PW-1/F and his personal search was
conducted vide memo Ex. PW-1/F-1. Disclosure statement of Ajay was
recorded vide Ex. PW-1/E-1. Subsequently, charge sheet was filed for
offences punishable under Sections 392/397/34 IPC and Sections
25/27/54/59 Arms Act against the two appellants.
6. Both Ratan @ Tanu and Ajay, in their statements recorded under
Section 313 Cr.P.C., stated that they had been falsely implicated in the
present case, nothing was recovered from their possession and the case
property had been falsely planted upon them.
7. In order to appreciate the evidence on record it would be appropriate
to note the testimony of the complainant Harshdeep Singh PW-1 verbatim
who was examined in chief and cross-examined on the same date as under:
"01.05.2012
PW1: Statement of Shri Harshdeep Singh S/o Sardar Gurvinder
Singh, Aged about 22 years, R/o B-400, IIIrd Floor, Sudarshan
Park, Moti Nagar, New Delhi, 10th Pass, Pvt. Job.
On S.A.
I do not remember the exact date, month and the year,
however the incident had taken place last year. At the relevant
time was working in the Maruti Work Shop, Industrial Area,
Kirti Nagar. At about 12.00 night, after finishing the work at
my work shop, I was going to my residence on my motorcycle
bearing No.DL-3C-AQ-6089 and on the way I stopped the
motorcycle as I felt urinating. I stopped the motorcycle near
Jhulewala Park, Mansrover Garden.
After passing the urinary in the Jhulewala Park when I
came out of the park, two boys surrounded me. The said two
boys are present today in the Court. I do not know the names of
the accused persons.
At this stage witness has pointed out towards accused
Ratan present in the Court and has stated that: he (Ratan) had
put knife on my neck and asked me to hand over whatever I was
having with me. Thereafter, the other accused (witness has
pointed towards accused Ajay) started taking my search and
thereafter both the boys snatched my mobile phone and my
purse containing ₹500/- or ₹700/-. Again said I do not
remember the exact amount of money kept in my purse.
After that both the accused persons fled away from the
spot. I demanded the mobile phone from one passersby and
informed the police at number 100 regarding the incident. After
that police reached the spot and narrated the incident to the
Police and my statement in this regard was recorded. Same is
Ex.PW1/A bearing my signatures at point A. Police prepared
site plan Ex.PW1/B bearing my signatures at point A. Police
prepared site plan Ex.PW1/B bearing my signatures at point A.
On the same day the police officials of PS Kirti Nagar
brought both the accused persons in the police station. My
mobile and purse were recovered from one of the accused
persons in the police station. I cannot point out specifically
from whose possession my mobile phone and purse (wallet) was
recovered. My mobile phone and purse were taken into
possession by the police vide seizure memos Ex.PW1/C and
PW1/D bearing my signatures at point A. Nothing else was
recovered from the possession of the accused persons.
Both the accused persons were interrogated and
arrested. The disclosure statement of accused Ratan is
Ex.PW1/E and that of accused Ajay is Ex.PW1/E1 bearing my
signatures at point A. The arrest memo of accused Ajay is
Ex.PW1/F bearing my signatures at point A and that of accused
Ratan is Ex.PW1/G bearing my signatures at point A.
The personal search memo of accused Ajay and accused
Ratan are Ex.PW1/F1 and PW1/G1 respectively bearing my
signatures at point A. I had submitted the original bill of
mobile phone to the police and the seizure memo in this regard
is Ex.PW1/H bearing my signatures at point A. The said
receipt/ bill is Ex.PX bearing my signatures at point A.
Thereafter, I left the police station.
At this stage, Ms. Neelam Narang, ld. Additional Public
Prosecutor for State seeks permission to cross-examine the
witness as the witness is resiling from his previous statement
made to the Police.
Heard. Permitted.
XXXXX by Ms. Neelam Narang, ld. Additional Public
Prosecutor for State
It is incorrect that one knife was recovered from the
possession of accused Ratan upon his search by the police. Vol.
Police had shown me that knife in the police station stating that
the same had been recovered from one of the accused. It is
wrong to suggest that in my presence one knife was recovered
from accused Ratan which had been used by him at the time of
incident then he kept the same on my neck.
At this stage witness has been shown the seizure memo of
the knife mark A bearing his signatures at point A. On seeing
the same witness has stated that he signed the said document
without going through its contents. It is correct that police
prepared sketch of the knife in my presence and same is
Ex.PW1/1 bearing my signatures at point A.
It is correct that when my purse was recovered, same was
containing one currency note of ₹500/- denomination and one
photocopy of my PAN Card having my photograph. I had not
stated to the police in my statement that when I was making
efforts to search the accused persons on 16.06.2011 and I
reached near Tankiwala park, I saw one boy having squint eyed
(cock eyed) standing near Tankiwala park and identified him as
one of the assailants who had snatched my mobile phone and
purse along with his associate, I went to the PS and informed
the police and thereafter with the police I reached near
Tankiwala park and on my identification accused Ratan today
present in the Court was arrested. Confronted with the
statement Ex.PW1/X where it is so recorded from point A to A1.
It is incorrect to suggest that from the possession of accused
Ratan my purse was recovered and one knife was also
recovered in my presence. Rest of the statement Ex.PW1/X is
read over to the witness today in the court which he denied
having the same made to the police and his statement is
confronted with Ex.PW1/X from point B to B1 where it is so
recorded.
It is incorrect to suggest that mobile phone was
recovered from the possession of accused Ajay. It is incorrect
to suggest that I am deposing falsely in respect of arrest of
accused persons and the recovery effected from them as I have
been won over by the accused persons. I can identify the case
property if shown to me.
At this stage one sealed pullanda duly sealed with the SN
is opened and same is found containing one buttondar knife of
silver colour. Same is shown to the witness and the witness has
stated that: I cannot say that this is the same knife but it was of
silver colour. Buttondar knife is Mark P1.
Another sealed pullanda duly sealed with the seal of SN
is opened and same is found containing one mobile phone make
VIRGIN (HUAWEI C3105) having battery inside but without
SIM Card. Same is shown to the witness and the witness has
correctly identified the same which was robbed of from him on
the day of incident. The same is Ex.P1.
Another sealed pullanda duly sealed with the seal of SN
is opened and same is found containing one black colour purse
(wallet) having a currency note of ₹500/- and one photocopy of
PAN Card in the name of Harshdeep Singh having his
photograph and one small stone (stone is not mentioned in the
seizure memo) Same is shown to the witness and the witness
has correctly identified the same which was robbed of from him
on the day of incident. Purse containing currency note and the
photocopy of the PAN Card is collectively is Ex.P2. Witness
has not identified the small stone contained in the purse.
XXXXXX by Sh. Vineet Bahl, Adv. ld. Counsel for accused No.1
Ajay.
At this stage ld. Counsel for accused has produced
photograph Ex.PW1/DA of some person and the same is shown
to the witness.
The person shown in the photograph is present today in
the court (witness has pointed out towards accused Ajay).
Again said the person shown in the photograph is not present in
the court today and I do not know whose photograph is this.
It is correct that during investigation I had come to know
through police that one of the robbers was drug addict.
Jhulewala park and Tanikwala park are two different parks.
Q. Can you tell the location of Jhulewala park?
Ans. Jhulewala park is located in Ramesh Nagar near the Big
Water Tank which is not inside the park.
Q. Can you tell the location of Tankiwala park?
Ans. Jhulewala park is also called Tankiwala Park. It is a big
park.
It is correct that the jhulewala/ tankiwala park is not on
my way from my work place to my residence. Vol. My uncle
(chacha) lives in Ramesh Nagar i.e. 8/131. I had left from their
house and on Ramesh Nagar side there was barricade and the
way was from Mansrover Garden side. I came from work place
to my chacha's residence at Ramesh Nagar and from there I
was on my way back home on the day of incident.
It is correct that from 8/131 Ramesh Nagar, my residence
is in East direction and the Jhulewala park is in West direction.
Q. Is it correct that opposite State Bank of India there is a
park having without opening from that side and on the another
corner there is a public urinal?
Ans. It is correct that there is a public urinal but I did not use
the same and the boundary wall of the park was broken.
It is incorrect to suggest that wall of that park was never
broken and at the date of incident also it was not broken
because it is well maintained district park of that area. I cannot
say whether police has not apprehended the drug addict
because of the reason that had be been apprehended, police had
to provide him drug from their own pocket. I do not know
whether accused Ajay along with his family is doing work of
ironing clothes in front of the park for the last forty years. I
have identified accused Ratan in the police station. I had
shown my doubt about accused Ajay as I had not seen his
complete face.
XXXX by Sh. Ratan Kumar, Adv. ld. Counsel for accused No.2
Ratan.
I am 9th pass. My date of birth is 15.12.1989. Presently I
am 22 years old. I had joined AAA Maruti Workshop, Kirti
Nagar, Delhi in the year 2011. The month I cannot tell. I was
not the employee of AAA Maruti Workshop, Kirti Nagar, Delhi,
but I was employee of Ashishani Consultancy at Bali Nagar,
Delhi dealing with insurance inspection. Vol. daily I used to
visit AAA Maruti Workshop, Kirti Nagar, Delhi for inspection.
I can read Hindi but I can write somewhat Hindi. Vol. I
can write in English. It is correct that statement Ex.PW1/A is
not in my handwriting. IO has scribed the same. I have signed
this statement on the next date of incident. I was signed after
about 10 hours of the incident. IO had scribed my statement
Ex.PW1/A as I had narrated to him. IO had told me about the
statement before I signed the same.
I have motorcycle bearing No.DL-3S-AQ-6089 make
Bajaj.
Q. Can you tell the relation of girl with whom you were on
the motorcycle at the time of incident?
Ans. There was no such girl with me.
I cannot tell the number of papers on which I had signed.
It is incorrect to suggest that I had signed the blank papers. I
had signed all the papers the very next day of the incident. I
have not made any departure entry at my work place i.e. AAA
Maruti Workshop, Kirti Nagar, Delhi.
The site plan Ex.PW1/B was prepared in my presence
which I had signed at point A in the police station. It is
incorrect to suggest that I was not robbed on the day of
incident. The robbed purse (wallet) was of brown colour
racsine.
There were 2/3 persons who had robbed me.
Court question:
In your examination in chief you had deposed about two
persons and now in your cross-examination you have deposed
about 2/3 persons. Can you clarify whether there were two
persons or 2/3 persons who had robbed you?
Ans. One person who had shown me knife had caught hold of
me from my neck and due to that I felt giddiness and therefore, I
cannot say whether they were two or 2/3 persons who had
robbed me.
I was not in senses for 2/3 minutes. I had fallen down on
the floor. When I had fallen down after that there were no one
surrounding me. I cannot tell the complexion of person who
had caught hold of me from my neck as it was dark (night time).
I had reached the police station after about 15/20
minutes of the incident. I could see silver colour knife. It is
wrong to suggest that I have lodged false FIR. It is wrong to
suggest that I am deposing falsely."
8. A perusal of the evidence of this witness shows that though he
identified in his examination-in-chief the two accused present in Court as
assailants and that Ratan had put knife on his neck and Ajay took his search
and took out his mobile phone and purse containing ₹500/- or ₹700/-, in the
FIR this witness has stated that his purse contained ₹1200/-. Further the case
of this witness was that no arrest or recovery was made in his presence and
he was called to the Police Station by the Police officials and mobile and
purse were shown to him. He could not specifically point out as to from
whom mobile phone or purse was recovered. Mere identification of the
signatures on the search memos does not prove that the two accused were
arrested upon his identification or that the recoveries were made in his
presence. Further in respect of the identification also, in cross-examination
when this witness was confronted with the photograph, he identified firstly
the photograph to be of Ajay and later said that the person in the photograph
was not present and that he could not identify him. In the Court question put
to the complainant that though his case was that 2 persons were involved in
the incident, however he stated in his cross-examination that 2-3 persons
were involved; the explanation of this witness was that one person who had
shown him the knife had caught hold of him by his neck due to which he felt
giddy and was thus unable to say whether they were 2 or 2-3 persons. He
further stated that he was not in his senses for 2-3 minutes and that he had
fallen down on the floor. Further he stated that he also could not tell the
complexion of the person who caught him by the neck since it was dark.
Thus his initial version in the cross-examination that on the pointing out of
the knife of one person, the other person took out his mobile phone and
money is materially contradicted by his answer to the court question. In
Court, he also failed to identify the knife allegedly recovered from the
appellants and he was categorical that neither the appellants were arrested
nor any recovery was made from the appellants in his presence.
9. Indubitably, conviction can be based on the testimony of a solitary
witness if the same is reliable and trustworthy. Further conviction can be
based on the testimony of a hostile witness if his part version is duly
corroborated in material particulars. [See 1991 (3) SCC 627 Khujji @
Surendra Tiwari Vs. The State of Madhya Pradesh.]
10. In the present case as noted above the version of the complainant is
contradictory on each material aspect whether it is the place where he was
working, how he made the statement, the place where his statement was
recorded, as to how arrest of the accused persons was made, the recoveries
made or the identification of the accused and also the weapon of offence.
11. Considering the nature of evidence of the complainant, it is a fit case
where the appellants are entitled to the benefit of doubt. The impugned
judgment of conviction and order on sentence are set aside. The appellants
who are in custody are directed to be released forthwith if not required in any
other case. Appeals are disposed of.
12. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
13. TCR be returned.
(MUKTA GUPTA)
JUDGE
JUNE 01, 2017
'ga'
