Delhi District Court
State vs . Shakil And Ors. on 30 September, 2019
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts):
CENTRAL: TIS HAZARI COURTS, DELHI.
CC No.288496/2016
State Vs. Shakil and Ors.
FIR No.566/2007
U/s 394/34 IPC
P.S Kashmere Gate
JUDGMENT
(a)Date of commission of offence : 18.12.2007
(b)Name & address of the accused : 1) Shakil S/o Sh. Mohd. Farooque R/o 81, Chatta Lal Mian, Kikarwali Gali, Daryaganj, Delhi.
2) Fahimuddin S/o Sh. Mohd. Kamruddin R/o H-2162, Gali No.22B, New Mustafabad, Rajiv Gandhi Nagar Delhi.-110094
3) Kasim S/o Sh. Nanhe Qureshi, R/o H-51, Loni Main Bazar, Bhoparian Mohalla, Loni Ghaziabad, UP.
Accused Shafiq is already
discharged
(c)Plea of accused : Pleaded not guilty
(d)Final order : Convicted U/s 394/34 IPC
(e)Date of such order : 30.09.2019
Date of Institution : 14.02.2008
Received on transferred to this : 17.08.2018
court
Arguments heard/order reserved : 28.09.2019
Date of Judgment : 30.09.2019
State Vs. Shakil & Anr. CC No. 288496/16 1/24
Brief statement of the reasons for the decision:-
1. Briefly stated the facts of the case are that on 18.12.2007 at about 2:40 pm, accused persons in furtherance of their common intention committed theft of Rs. 2,40,000/- and voluntarily caused fear of hurt to the complainant by using TSR DK1RK4161 in order to take away the stolen money by causing simple injuries to the complainant by beating him and throw him out of the TSR and thereby committed an offence punishable under Section 394/34 IPC.
2. Charge sheet was filed on 28.11.2008, the accused persons were summoned and after hearing arguments charge under section 394/34 IPC were framed against all accused persons to which they pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined witnesses PW-1 HC Prem Chand, PW-2 Vinod Kumar, PW-3 HC Vijender Singh, PW4 Kamruddin, PW-5 HC Dinesh, PW-6 SI Baljeet Singh, PW-7 Ct. Ayush Kumar, PW-8 ASI Shokinder, PW-9 Inspector Yashpal Singh and PW-10 Retired SI Krishan Chander.
4. PW-1 HC Prem Chand stated that on 18.12.2007, he alongwith SI Krishan Chand were on patrolling duty in the area of PS Kashmere Gate and when they reached near State Vs. Shakil & Anr. CC No. 288496/16 2/24 Ritz Cinema at about 4:10 pm, one person namely Vinod Kumar told them after pointing out towards a TSR that boys sitting in the same have pushed him and taken away his briefcase containing Rs. 2,40,000/-. He further stated that he alongwith SI and the complainant chased the TSR bearing DL1RK4161 on a personal motorcycle of the IO and TSR was intercepted near GPO having four persons. He further stated that out of four persons Shakil was sitting besides, Fahimuddin, the driver of the TSR were apprehended and two persons sitting on the back seat managed to escape whose names were revealed as Kasim and Shafiq. He further stated that SI Krishan Chand recorded the statement of Vinod Kumar and prepared Tehrir and he took the same to PS for registration of FIR. He also stated that after registration of FIR he came back at the spot with the copy of FIR and SI Krishan Chand Seized TSR vide seizure memo Ex. PW1/A and briefcase was seized by vide Ex. PW1/B. He also stated his presence at the time of personal search and arrest of accused Fahimuddin and Shakil vide personal search memo Ex. PW1/E and EX.PW1/F and arrest memo Ex. PW1/C and Ex. PW/D. He also stated pointing out memo was also prepared in his presence at the instance of accused persons who pointed out the place where they had pushed the complainant. He also stated about the disclosure statement of accused Shakil and Fahimuddin Mark X and Y. he identified that accused Fahimuddin and Shakil and stated that he had seen Kasim and Shafiq while they were fleeing away. He stated that one mehroon colour bag was also recovered from accused State Vs. Shakil & Anr. CC No. 288496/16 3/24 Shakil and one black colour from accused Fahimuddin which was was seized vide Ex. PW1/H. PW-1 identified all the accused who were present in the court as well as the case property being recovered and seized in his presence. The case property was Ex. P-1, Ex. P-2 and Ex. P3. This witness was not cross examined by any of the accused persons.
5. PW-2 is the complainant. He stated that on
18./12.2007 he had visited Delhi to pay Rs. 240,000/-to his uncle Anand Prakash and when he reached ISBT Kashmere Gate, Delhi at about 2:30 pm, he hired TSR no. DL1RK4161 for Chandni Chowk which was having already persons including the driver. He stated that he kept his briefcase near his feet and while TSR was passing from Ritz Cinema he suspected other passengers had opened his briefcase under the veil which they were carrying. He further stated he checked his briefcase and found that the polythene bag containing his money had been taken by those persons and when he tried to get his money back the accused persons started beating him with feast and blows. He identified the accused Shakil the person who was driving the TSR and accused Fahimuddin, Kasim as the two persons who were also sitting the TSR. He stated that he had asked Shakil to stop the TSR but Shakil accelerated the TSR and he was thrown out from the TSR and he suffered injuries in his hand. He stated that he noticed some police near the spot and requested them who chased the TSR on the motorcycle and intercepted the same near post office. He stated that State Vs. Shakil & Anr. CC No. 288496/16 4/24 Shakil alongwith persons sitting him on driver seat was apprehended and briefcase was lying in the TSR alongwith one bag. He proved his statement Ex. PW2/A and seizure of briefcase is Ex. PW1/B, seizure of bag Ex. PW1/H and seizure of TSR Ex. PW1/A. He identified the accused Fahimuddin and accused Shakil and stated that they were arrested in his presence. He stated that third accused Kasim was sitting on the back seat and he is one of the person who opened the briefcase and removed his money. He identified the case property and stated that he can identify the other accused who is not present in the court. Initially, this witness was not cross examined as the counsel for accused has not come despite waiting till 2:30 pm. However, PW-2 was recalled under Section 311 Cr.PC and cross examined on 28.08.2019. During cross-examination PW-2 stated that there was only one auto available at that time and he used to travel in the Metro. He also stated that he was aware that sharing auto used to come frequently one after another and generally 5-6 persons travel in the auto . He denied the suggestion that six person can not sit in a normal auto and stated that three persons sit on the back sit and one on the safety rod and one passenger can sit with a driver. He admitted that between Kashmere Gate and Chandni Chowk there are multiple red line having traffic police. He also admitted that area is highly congested. He had categorically stated that he had taken metro from Kashmere Gate to Chandni Chowk on few occasion before the date of incident. He denied the suggestion many days before the date of incident and even after the date of State Vs. Shakil & Anr. CC No. 288496/16 5/24 incident the metro line (yellow line) was not in operation. He stated that there was lock in briefcase but at that time he had not locked the same. He also stated that the money was given by his father to hand over the same to his mamaji who resides in Chandni Chowk. He stated that he was sitting at the gate side of auto and had placed the briefcase on the floor of the auto and holding the same with his legs. He stated that accused Kasim was sitting on the safety and accused Fahimuddin was sitting on the driver seat and probably was driving the auto and accused Shakil was also sitting with him. He stated that the person who was sitting besides him is not present today. He stated that he suspected something amiss between ISBT and cinema hall near ISBT as he heard sound of opening his briefcase. He stated that he had seen his polythene bag having the money in the hand of person who is not present today. He narrated the incident to the police that his money was lying in the briefcase in a polythene bag which can hold to 2-4 kg of goods. He admitted that he had not seen anybody opening the briefcase by bending towards the floor and none of the accused attempted any scuffling with him. He stated that the briefcase was kept in his front and he had not felt anything on his legs. He denied the suggestion that no such incident occurred and accused had been falsely implicated and he himself misappropriated the money. He admitted that he neither sustained any injury nor his clothes the damaged. He stated he was thrown out from the auto after about 10 paces when auto is at the speed of 15-20 km/h. He stated that he had not initially noted the TSR number and State Vs. Shakil & Anr. CC No. 288496/16 6/24 TSR was escaping at a speed of 40 km/h. He stated that he do not recall whether any site plan was prepared in his presence and he signed the same or not. He denied the suggestion that he had not boarded the auto rickshaw and no offence was committed by him.
6. PW-3 Stated that on 18.12.2007 he was posted as MHC(M) at PS Kashmere Gate and on that day SI Krishan Chand deposited the case property which was deposited in malkhana vide entry at S. No. 4623/07 in register no. 19, copy of the same is Ex. PW3/A. He further stated that TSR was released on superdari vide order dated 02.01.2008 and mobile phone was released on 16.01.2008. The witness was also not cross-examined.
7. PW-4 is the registered owner of TSR no.
DL1RK4161. He stated that he got the TSR released on superdari vide Ex. PW4/A. During cross-examination by the counsel for accused Fahimuddin, he stated that TSR was taken by his son on 18th who had not come back for two days and thereafter he registered the police complaint of missing of his son with TSR which is Ex. DX1. He further stated on third day i.e. 20 th he received call from Krishan Chand about the arrest of his son. Other accused person did not cross-examined the witness.
8. PW-5 stated on 20.12.2007 he joined the investigation of the present case. Then IO recorded the disclosure statement of accused Fahimuddin and Shakil @ State Vs. Shakil & Anr. CC No. 288496/16 7/24 Bablu Ex. PW5/A and Ex. PW5/B. He also stated that accused persons pointed out the place of committing offence and memo was prepared in his presence Ex. PW5/C. The witness identified the accused Shakil and Fahimuddin. During cross-examination, he stated that IO recorded the disclosure statement and pointing out memo in his own hand writing. He denied the suggestion that he had not joined the investigation and therefore, he is not able to tell the exact time of investigation. He denied the suggestion he never went to the place of incident.
9. PW-6 stated that on 18.12.2007 he was posted as duty officer from 8:00 am to 5:00 pm and on that day he received rukka from ct. Prem chand sent by SI Krishan Chand and he accordingly recorded the FIR and after obtaining the date of the FIR, same was handed over to Ct. Prem Chand. He also stated that he made endorsement on the rukka. He proved the copy of FIR Ex. PW6/A and endorsement on rukka Ex. PW6/B. The witness was not cross examined.
10. PW-7 Ct. Ayush Kumar stated he did not remember the date however it was the year 2007. He further stated that he joined the investigation alongwith Ct. Dinesh and on that day IO had taken out the accused Shakil and Fahimuddin. He further stated that both the accused persons have disclosed about their involvement. He further stated that IO had recorded their disclosure statement which is already exhibited. He further stated that accused State Vs. Shakil & Anr. CC No. 288496/16 8/24 persons have disclosed that they have committed the offence in association with Qasim and with another person whose name he did not remember. The said witness is cross examined by the Ld. APP for the state regarding the identification of accused persons as witness has not identified correctly and witness admitted that due to lapse of time, he inadvertently identified Fahimuddin as Shakil and Shakil as Fahimuddin. He admitted that the date on that day was 201.2.2007 and the name of the another accused was disclosed as Shafiq. He admitted that he recollected and date and name of the accused which he missed due to lapse of time only. During cross-examination, he stated that he had joined the investigation with IO and Ct. Dinesh and he had gone to Khurja on the night of the date of interrogation on 20.12.2007 where search of the co- accused was made and they came back Delhi on the morning of 21.12.2007 and the accused was taken to PS. He further stated that he did not remember on how many papers IO obtained the signatures of accused. He further stated that he had signed the statement. He denied the suggestion that he had not joined the investigation so that is why he initially not identified the accused correctly. He denied the suggestion that no such disclosure statement was given by the accused or that the signatures of accused persons were taken on the blank papers.
11. PW-8 ASI Shokinder stated that on 14.06.2008 he was posted at PS Kashmere Gate as HC and on that day he joined the investigation with IO SI Yashpal. He further State Vs. Shakil & Anr. CC No. 288496/16 9/24 stated that he alongwith IO Ct. Yogender and accused went to Ritz Cinema, Kashmere Gate and IO had prepared pointing out memo at the instance of accused Kasim vide memo Ex. PW8/ bearing his signature at point A and thereafter, they had gone to Shahdara flyover where IO also prepared the pointing out memo at the instance of accused Kasim Ex. PW8/B bearing his signature at point A. he further stated that thereafter they had gone to Loni to search of the other accused persons but they could not be found and they came back to PS ISBT, Kashmere Gate. Accused Kasim @ Dalda is identified by the witness. The witnesses was also not cross examined.
12. PW-9 Inspector Yashpal Singh stated that on 22.01.2008 he was posted as IC/PP, ISBT, Kashmere Gate, Delhi and on that day the further investigation of the case was marked to him. He further stated that during the course of investigation, he had collected all the relevant documents pertaining to this case. He further stated that he prepared the charge-sheet against the accused Shakil and Fahimuddin. He further stated that remaining two accused Shafiq and Kasim were absconding and he moved an application to initiate the proceedings under section 82/83 Cr.PC. He further stated that accused Kasim was arrested vide arrest memo Ex. PW9/A and disclosure statement of accused Kasim was also recorded which is Ex. PW9/B. He further stated that accused Kasim refused to participate in the TIP and his instance pointing out memo was prepared Ex. PW9/C and Ex. PW8/A and Ex. PW8/B. He also stated State Vs. Shakil & Anr. CC No. 288496/16 10/24 that complainant also identified the accused Kasim in the police post, Kashmere Gate. He also stated that since no information regarding the items recovered from accused Kasim,same were seized under Section 102 Cr. PC by the IO were later on converted to Kalandra under section 103 D.P. Act which is Ex. PW9/D. He further stated that relevant documents pertaining to case property of the Kalandra were attached and in this regard, supplementary charge-sheet was prepared and the same was filed before the court. During cross-examination, he stated that he had not interrogated accused Fahimuddin and Shakil. He stated that he had personally visited the provided address of the accused Kasim to execute the process under Section 83 Cr.PC in the area of Loni, H. No. 51, Vyapari Mohalla. He further stated that he cannot recall the landmark regarding the address of the accused persons. He further stated that he did not recall the colour/storey/rooms of the house of accused Kasim. He further stated that he did not recall the widith of the road in front of the accused Kasim. He further stated that he had also visited the house of the accused Shafiq (discharged) akhlak ka makaan, Upper Court Lane, Loni Ghaziabad. He further stated that he had not visited any other place. He further stated that he did not remember the date. He denied the suggestion that he had not visited the house of the accused Shafiq or Kasim and he had executed the 83 Cr.PC proceedings while sitting in the PS. He denied the suggestion that the face of the accused Kasim was shown to the complainant that is why accused refused to participate in the TIP proceedings. He denied the State Vs. Shakil & Anr. CC No. 288496/16 11/24 suggestion that he had not done any investigation of the present case.
13. PW-10 Krishan Chand stated that accused Fahimuddin was driving the TSR and Shakil was sitting by his side whereas the other two were sitting on the back seat. He further stated that empty briefcase was with the complainant and the same was taken into the possession vide seizure memo Ex. PW1/B. He further stated that accused Fahimuddin and Shakil were apprehended near the spot who were present in the court and correctly identified by the witness. He further stated that he had recorded the detailed statement of complainant Ex. PW2/A regarding the incident and on the search of the apprehended persons, one bag containing two mobiles phones and some clothes, bangles and ladies purse having Rs. 340/- were recovered from accused Shakil. He further stated that one bag was also recovered from Fahimuddin which was containing some medical prescription document of some other persons. He further stated that all such articles recovered from the apprehended accused person were seized by him vide seizure memo Ex. PW1/H and thereafter, he prepared the rukka which is Ex. PW10/A and the said rukka was handed over to Ct. Prem Chand for registration of FIR and after some time Ct. Prem Chand arrived at the spot and handed over the copy of FIR and rukka to him. The TSR was seized vide seizure memo Ex. PW1/A and thereafter efforts were made to trace the other two accused persons and both the accused persons were apprehended and interrogated in State Vs. Shakil & Anr. CC No. 288496/16 12/24 which they made disclosure statement which is Ex. PW10/C and Ex. PW10/D. The accused persons were arrested vide arrest memo already Ex. PW1/C and Ex. PW1/D and personal search memo Ex. PW1/F and pointing out memo is Ex. PW5/C. He further stated that recovered TSR and the other case property was deposited in the Malkhana. During cross examination, he stated that he had not identified the auto in which accused was riding and complainant met him. He stated that he had not noticed any injury marks on the victim. He admitted that MLC was not done as there was no apparent injury marks on the body of victim. He further stated that the victim had not complained any bodily injury, however, he had stated that persons in auto have taken away his money. He admitted that they had taken the victim with them on their motorcycle and started chasing the auto rickshaw. He admitted that the spot of incident is having flow of public. He further stated that they did not made any enquiry from the public present and later on when we enquired there was no witness to the incident. He further stated that he apprehended two persons namely Fahimuddin and Shakil at about 5-7 paces from where the auto was stopped. He further stated that on disclosure, he came to know that Fahimuddin was driving the auto. He further stated that the he did not recall where Shakil was sitting. He admitted that he had not seen the sitting position of the accused persons as he was driving the motorcycle behind the auto. He further stated that he had noticed that the briefcase of victim was open. However, the lock were not in broken condition. He admitted that victim State Vs. Shakil & Anr. CC No. 288496/16 13/24 had not stated the facial features of the accused. He denied the suggestion that accused Fahimuddin and Shakil were apprehended at the random identification of the complainant. He denied the suggestion that alleged stolen amount does not belong to the complainant and in order to grab the said money. He denied the suggestion that the investigation and the writing work was done while sitting in the PS.
14. After the completion of prosecution evidence, statement of accused persons was recorded under Section 313 Cr.P.C on 18.09.2019 wherein they stated that have been falsely implicated.
15. No defence evidence was heard. Final arguments were heard. Ld. APP for the State has argued that the prosecution witness have supported the case of prosecution and PW-1, PW-2, PW-5, PW-7, PW-8, PW-9 and PW-10 have correctly identified the accused persons as a preparators of robbery committed. He further argued that there is sufficient evidence on record to convict the accused persons.
16. On the other hand, ld. Counsel for the accused persons has argued that the prosecution has failed to prove the allegation. He pointed out that there are material contradiction in the testimony of witnesses. He also submitted that complainant has failed to disclose the source of money alleged to have been robbed. ld. Counsel for also State Vs. Shakil & Anr. CC No. 288496/16 14/24 argued that complainant himself as misappropriated with the money and in order to create an alibi has created false story of robbery. ld. counsel for also argued that the manner in which robbery stated to have been committed is not possible as there was not enough space to take out the currency from the briefcase without disturbing the legs of the complainant. He prays for acquittal.
17. The accused persons are charged with committing robbery by voluntarily causing hurt which is punishable under Section 394/34 IPC.
18. Section 319 IPC defines hurt: It provides that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
19. Section 390 IPC defines Robbery: In all robbery there is either theft or extortion:-
'When theft is robbery: 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 restraint, or fear of instant death or of instant hurt, or of instant hurt, or of instant wrongful restraint.
When Extortion is robbery: Extortion is State Vs. Shakil & Anr. CC No. 288496/16 15/24 "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation: The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
20. Section 394 IPC provides: voluntarily causing hurt in committing robbery:-
"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 ten years, and shall also be liable to fine"
21. Section 34 IPC provides: Act done by several persons in furtherance of common intention:-
State Vs. Shakil & Anr. CC No. 288496/16 16/24"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
22. The prosecution has to prove that in order to committing theft or carrying away the property the accused in furtherance of their common intention as caused voluntarily hurt to the complainant: PW-2 had stated that when he boarded the TSR, the accused persons were already sitting and accused Shakil was driving the auto and other persons were sitting one of them with the driver only. None of the accused have denied that they were not sitting in the TSR. The TSR belongs to PW-4 who had stated that the TSR was taken by his son accused Fahimuddin on 18.12.2007. The presence of accused persons in the TSR is proved by PW-1, PW-2 and PW-10. Moreover, accused persons have also not disputed their presence in the TSR at the spot. The complainant as well as police officials who have apprehended the accused persons have categorically stated that accused were present in the TSR. Complainant identified them as the persons who have acted in furtherance of their common intention in committing the crime. He stated that when he boarded the TSR the accused were already present in the TSR and taken out his polythene bag containing money from his briefcase and when he asked them to given his money back they State Vs. Shakil & Anr. CC No. 288496/16 17/24 started beating him and thrown him out of the TSR. Accused Shakil and Fahimuddin who were sitting on the driver seat have not stated that when they saw the accused on the passenger seat taking out the polythene bag of complainant they have objected to the same and stopped the TSR. This shows that accused Shakil and Fahimuddin have common intention with the accused who was sitting on the passenger seat to rob the complainant. However, no such action has come on record being taken by accused Shakil and Fahimuddin. Moreover, after throwing the complainant from the TSR, the driver of the TSR tried to run away by speeding the TSR. No attempt has been taken by accused Shakil and Fahimuddin in stopping the other accused from committing the crime.
23. PW-2 had stated that when he asked the accused persons to return his money he was beaten with fist and blows by the accused persons. He had also stated that when he further resisted he was thrown from moving TSR which was running at a speed of 15-20 kmph. He had also stated that he suffered injuries on his hand. During cross- examination, he stated that he did not receive any injuries by beating of accused Shakil or when he was thrown out. Section 319 IPC provides that injury is not sine qua non for causing hurt as it may also be caused by bodily pain only. Even, pulling a person by hair was held to be constituting offence of hurt and bodily pain may be of any nature. Even, if a customer after being abused in a shop is necked out of the shop, he suffers bodily pain due to push and pressure on State Vs. Shakil & Anr. CC No. 288496/16 18/24 his neck which also constitute under the hurt definition as provided under Section 319 IPC. Lord Macaulay in his report has also observed that all pain, diseases and infirmity are designated as hurt as it is very difficult to draw a line between those bodily hurts which are serious and those which are slight and, therefore, certain kind of hurts are designated as grievous. Hence, the arguments of Ld. Counsel for accused that no MLC of the complainant was conducted as no hurt caused to him is humbly rejected as complainant had stated that some pain or discomfort is caused to him when he was thrown out from the TSR. It is good fortune of the complainant who had already lost his money that he had not suffered any serious injuries which may have aggravated his pain of losing out his money to the accused persons.
24. Complainant has stated that he had come to Delhi on 18.12.2007 to pay Rs. 240,000/- to his uncle which he was carrying in three packets of the Rs. 500/-, four packets of Rs. 100/-, 30 currency notes of Rs. 1000/- and another bundle having Rs. 20,000/- in the currency notes of Rs. 100/- and Rs. 500/- which he had kept in a briefcase after wrapping them in a polythene bag. He had stated that he hired a TSR bearing no. DL1RK4161 for going to Chandni Chowk but after boarding the TSR the accused have removed the polythene bag having the money and when he objected he was beaten by fist and blows and ultimately thrown out from the TSR. The arguments of ld. Counsel that complainant has made a false story of previous travel State Vs. Shakil & Anr. CC No. 288496/16 19/24 between Kashmere Gate and Chandni Chowk by metro as there was no metro connectivity between Kashmere Gate and Chandni Chowk at the time of offence is rejected as it is common knowledge that the metro train services from Vishvidhalya to Kashmere Gate were started on 20.12.2004 which was further extended to Central Secretariat w.e.f 03.07.2005. Same is also confirmed on the website of DMRC and wikipedia website. The incident occurred on 18.12.2007 i.e. after the starting of metro operation between the Kashmere Gate and Chandni Chowk. Hence, the claim of complainant that he had previously traveled from Kashmere Gate to Chandni Chowk before the date of incident proves to be correct. The complainant has stated that manner in which he was looted by the accused persons. He had not only identified the accused persons but had also stated the role played by them as noted above. The argument of Ld. Counsel for accused that it is not possible that the accused to have removed the polythene bag of money without their being any disturbance in the sitting posture of the complainant and the accused persons is humbly rejected as complainant has categorically mentioned that he had heard the sound of opening of his briefcase and found on checking the briefcase that his polythene bag containing money is taken away by the accused persons under the veil of their bag. The accused persons have befooled the complainant in removing the polythene bag from his briefcase under garb of their bag kept above.
State Vs. Shakil & Anr. CC No. 288496/16 20/2425. The complainant has denied all the suggestion put forth by the defence. He had also categorically stated that he saw his polythene bag having money in the hand of accused who is not present in the court during his cross- examination recorded on 28.08.19. It has been observed above also that all accused have common intention in robbing the complainant. The argument of ld. Counsel that complainant was not aware of the number of TSR and therefore, he has wrongly identified the TSR of the accused persons as the one in which who was robbed is humbly rejected as after intercepting the TSR and apprehension of the accused Shakil and Fahimuddin, he had identified them as the persons who are present in the TSR in which he was robbed. As far as accused Kasim is concerned, he has himself refused TIP and I have no reason not to draw an adverse inference against him with respect to his culpability. PW-1 and PW-10 who had chased the TSR and apprehended accused Shakil and Fahimuddin have identified them as the person who were trying to escape after committing the robbery. PW-1 also stated that he had seen Kasim and Shafiq when they were fleeing away with the cash and identified him also in the court. The briefcase of the complainant was recovered from the TSR itself. This also led credence to the story of the prosecution. The accused persons have failed to bring out any motive upon the complainant in falsely implicating them. There is no previous enmity between the complainant and accused persons. The plea of ld. Counsel that complainant has not disclosed his source of money is humbly rejected as he had State Vs. Shakil & Anr. CC No. 288496/16 21/24 categorically stated that the money was given to him by his father to be given to his uncle in Chandni Chowk, Delhi. The accused persons have not been able to point out any lacunae in the case of prosecution. Accused Shakil and Fahimuddin were apprehended at the spot alongwith the TSR from which briefcase of complainant was recovered. The distance between Ritz Cinema and GPO Delhi is about one kilometer and no plausible explanation has been given by the accused persons as to where they were heading and how the briefcase of the complainant was found in the TSR. PW-4 had stated that his TSR was taken by his son Fahimuddin on 18.12.2007 i.e. date of incident. This also corroborates the case of the prosecution that the TSR was driven by accused Fahimuddin and Shakil.
26. The accused persons have used force in carrying away the booty i.e. Rs. 2,40,000/- belonging to the complainant as not only the complainant was beaten by them but he was thrown out from the running TSR which resulted into the hurt to the complainant. The complainant had stated that money has taken out by the accused Shafiq who has since been discharged as neither money was recovered from him nor he was identified by the complainant during the TIP proceedings. However, the role of remaining accused persons has also been explained by the complainant as he had stated that he was beaten by them and after throwing him from the running TSR, the accused persons tried to escape by carrying away the looted money. The beating of the complainant was voluntarily as no State Vs. Shakil & Anr. CC No. 288496/16 22/24 plea has been taken by the accused that complainant himself has started the quarrel or attacked the accused persons.
27. The chain of circumstances is clear. The testimony of witnesses is cogent and reliable. The arrest of the accused Shakil and Fahimuddin from the spot near GPO is proved by the witnesses who have seen their arrest. The recovery of briefcase of complainant from the TSR and another bag which was used in the crime as a veil is also recovered from the said TSR only. Non recovery of the looted money is not fatal to the case of prosecution, the accused has not claimed that briefcase belongs to any one of them. The other recovered items not being linked to any other crime is also not fatal to the case of prosecution as non detection of a previous crime does not absolve the accused persons from the present crime in which their culpability has been demonstrated by the prosecution. Hence, it has been proved by the prosecution that complainant suffered hurt due to voluntarily act of accused persons in committing the robbery.
28. In view of above discussions and evidence on record, I am satisfied that prosecution has successfully proved the allegations against accused persons that in furtherance of their common intention accused Shakil, Fahimuddin and Kasim have committed robbery by causing voluntarily hurt to the complainant.
State Vs. Shakil & Anr. CC No. 288496/16 23/2429. Accordingly, accused persons namely Shakil S/o Farooq, accused Fahimuddin S/o Mohd. Kamruddin and accused Kasim S/o Nanhe Khan are convicted for offence U/s 394/34 IPC.
30. File be consigned to record room after completion of necessary formalities. Copy of judgment be given free of cost to the convicts.
31. Copy of the judgment be also uploaded with digital signature. Digitally signed PAWAN by PAWAN SINGH SINGH RAJAWAT Date: 2019.10.01 Announced in open Court on 30th September, 2019 RAJAWAT 16:39:55 +0530 (PAWAN SINGH RAJAWAT) ACMM (Special Acts):CENTRAL TIS HAZARI COURTS:DELHI State Vs. Shakil & Anr. CC No. 288496/16 24/24