Delhi District Court
State vs Dinesh Haddi Etc on 30 October, 2014
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
ASJ( ELECTRICITY):NW DISTRICT:ROHINI: DELHI
FIR no. 19/10
Unique Case ID no. 02404R0119982010
Police station : Mahindra Park
U/S 394/397/307/411/34 IPC
State V/s Dinesh Haddi etc
1. Session Case no. : SC no. 33/10
2. Name of the accused : 1) Dinesh @ Haddi S/o Sh.Ganga
and parentage Shahu R/o House no. D75,
Masjidwali Gali, Village Bhadola,
Delhi.
2) Shekhar Yadav S/o Sh. Inder
Dev Yadav R/o C34, Kali Charan
ki Jhuggi Colony, Wazirpur,
Industrial Area, Delhi.
3) Naveen Kumar @ Babla S/o
Sh. Tika Ram @ Parkash R/o
T10/169, Village Bhadola Delhi.
3. Date of commission : 03/02/2010
of offence
4.Arguments concluded : 14/10/2014
on
5. Date of Judgment : 30/10/2014
6. Final Order : Convicted
7.Date of final order : 07/11/2014
JUDGMENT
FIR no. 19/10
State Vs Dinesh Haddi etc Page no. 1 / 36 1) The prosecution case in brief is that complainant Ali
Mohd resident of Village Wagub, P.S Sopaur, District Baramulla, J&K, came to Delhi on 29/01/2010 alongwith his friend Shri Abdul Hamid who used to supply Apples to commission agent Sh.Amolak Ram at Shop no. C128, Azadpur Mandi, New Delhi. They were living at C128,Azadpur Mandi, New Delhi as they were to leave within 12 days to Ajmer Sarif. In the intervening night of 29th30th January, 2010 at about 12.3012.45AM, he alongwith his friend were returning to C128, Azadpur Mandi, New Delhi, and were cornered by four persons and those persons asked them to hand over whatever money they were having. Since they objected to that, those boys attacked them with sharp edged weapons as a result complainant sustained injuries on his head, neck and feet whereas his friend Shri Abdul Hamid sustained injuries on his head, shoulder and back. Those persons robbed his friend Rs. 15,000/ and they raised alarm. On hearing alarm one police personnel came there and assailants started running and he caught hold of one of those boys and later on he came to know his name as Shekhar S/o Sh. Inder Dev. The said boy told them that other persons were Babla and Haddi who had run away after causing injury with knives and robbing the money. The name of fourth boy could not be ascertained but his description was given FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 2 / 36 by the complainant. On the basis of complaint made to the police on 30/01/2010, a case FIR was registered u/s 392/394/397/307/34IPC in Police Station Mahindra Park.
2) SI Rajesh Kumar Investigating officer during investigation prepared the site plan, obtained MLCs of injured and arrested accused Shekhar Yadav who was apprehended on the spot by HC Liyakat Ali of the PCR. He recorded disclosure statement made by accused Shekhar Yadav in which he disclosed that he has committed the offence in the company of his friends Babla, Haddi and Rukmani (not arrested). Despite two days police remand of accused Shekhar Yadav nothing was recovered from his possession and none of the remaining accused were arrested.
3) Accused Dinesh @ Haddi was arrested in case FIR no. 20/10 Police Station Mahindra Park by ASI Attar Singh who has disclosed about the commission of this offence and accordingly he was arrested on 01/02/2010 in this case. In his disclosure statement he has disclosed about the commission of this offence stating that he has caused injuries with his knife which could be got recovered from his house. Despite one day police remand of accused Dinesh @ Haddi nothing was recovered at his instance. Accused Dinesh @ Haddi joined the Test Identification Parade FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 3 / 36 where he was identified by complainant Shri Ali Mohd in the TIP proceedings. 3rd accused Naveen @ Babla was arrested in case FIR no.23/10 u/s 25 Arms Act, Police Station Mahindra Park by HC Ved Prakash who also disclosed commission of this offence. He was also arrested in this case on 03/02/2010 and stated to have admitted commission of this offence. He made a disclosure statement regarding keeping of Rs. 7,500/ from the looted amount in his house and accordingly led the police to his house and from where he got recovered Rs. 7,500/ stated to be robbed amount from Kashmiri boys and said amount was taken into possession by the IO. Accused Naveen @ Babla refused to join the proposed Test Identification Parade on 04/02/2010. The fourth accused Rukmani could not be arrested despite best efforts made by the IO. IO prepared the challan and submitted to the court.
4) On 12/05/2010 Ld MM, Delhi committed the case to the court of Sessions.
5) On 20/05/2010 the case was received on assignment by my Ld Predecessor. All the three accused were produced in judicial custody.
6) On 03/07/2010 after hearing Ld counsel for accused persons, a charge for the offence u/s 392/394/397/34IPC was FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 4 / 36 framed against all the accused persons and a separate charge u/s 411 IPC was also framed against accused Naveen@ Babla. All the accused persons pleaded not guilty and claimed trial.
7) In support of its case prosecution has examined in total 13 witnesses.
8) PW1 HC Babu Khan has recorded the FIR while working as Duty Officer on the intervening night of 29th30thJanuary, 2010 in Police Station Mahindra Park. He has proved the copy of FIR as Ex. PW1/A and his endorsement on rukka as Ex.PW1/B.
9) PW2 Ali Mohd is the complainant who has fully supported the prosecution case and narrated the incident clearly. He further deposed that the assailants robbed around Rs. 15,000/ from pocket of his friend Abdul Hamid. In the meantime when they were robbing them police gypsy arrived at the spot and all the assailants ran in a gali inside the gate of the Azadpur Mandi; police chased the assailants after boarding the gypsy and one of them was caught and he has identified accused Shekhar Yadav, correctly. He further deposed that he alongwith his friend Hamid Ali was taken to hospital where they were medically examined; his statement was recorded by the police at the place where accused Shekhar Yadav was apprehended. He has proved his FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 5 / 36 statement as Ex. PW2/A which was signed by him at pointA. He further deposed that other assailants who were accompanying accused Shekhar Yadav were present and pointed out towards accused Naveen and Dinesh stating that they were accompanying Shekhar Yadav on the date of incident and were having knives in their hands; both of them assaulted him and his friend with their knives. He further deposed that he identified accused Dinesh before Ld MM, Delhi during the judicial identification parade and made the statement regarding identification in TIP proceedings. The said proceedings were proved as Ex. PW2/B which was signed by him at pointA. He further clarified that a sum of Rs. 15,000/ which were in the pocket of his friend was received by him from the commission agent/fruit purchaser on the date of incident.
10) PW3 Sh. Abdul Hamid is another injured and eye witness to the incident. He has fully corroborated the version of PW2 stating that the person who had stabbed and robbed his cash amount was present in the court and has correctly identified accused Dinesh @ Haddi. He further deposed that after receiving injuries he fell down on the ground and became unconscious and therefore he could not identify properly the remaining two persons who had caught hold his friend Ali Mohd. He further FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 6 / 36 stated that he could not say if accused Shekhar Yadav and Naveen@Babla were among those four persons. He further stated that he came to know about the persons arrested on the spot by the police in the hospital and his name was told to him as Shekhar Yadav. The said witness was declared hostile by Ld Addl. PP for the State and was crossexamined and did not support the prosecution in his crossexamination regarding identification of Shekhar Yadav having been apprehended in his presence on the spot. In his crossexamination, he however stated that the robbed cash amount was Rs.15,000/i.e one currency note of Rs. 1000 and remaining notes of Rs. 500/. He has also deposed that cash was received by him from one commission agent at about 4.00pm on 29/01/2010.
11) In his crossexamination by Ld counsel for accused Shekhar Yadav, he has deposed that he was able to identify only one accused Dinesh @ Haddi who attacked him and could not identify the remaining persons as there was darkness at the spot.
12) In his crossexamination by Ld counsel for accused Naveen @ Babla and Shekhar Yadav, he has stated that he had not seen accused Shekhar Yadav and Naveen @ Babla at the spot as there was darkness at the spot.
13) PW4 HC Liaqat Ali is the PCR official who has
FIR no. 19/10
State Vs Dinesh Haddi etc Page no. 7 / 36
apprehended accused Shekhar Yadav from the spot and handed over the accused to the duty officer.
14) PW5 HC Sanjeev Kumar has joined the investigation with IO stating that accused Dinesh made a disclosure statement in his presence and proved the same as Ex. PW5/A.
15) PW6 SI Attar Singh has arrested accused Dinesh @ Haddi in case FIR no. 20/10 u/s 399/402IPC and u/s 25/54/59 Arms Act. He further deposed that accused has made the disclosure statement Ex. PW6/A regarding this case.
16) PW7 HC Vijay Singh was working as MHC/M on 03/02/2010 when SI Rajesh Kumar deposited the sealed parcels with him. He has proved the entries in that regard in register no. 19 as Ex PW7/A.
17) PW8 HC Ved Parkash was given investigation on 03.02.2010 of case FIR No.23/10 under Section 25/59 of Arms Act, Police Station Mahendra Park where accused Naveen Kumar @ Babla was arrested by him and he made disclosure statement of the present case.
18) PW9 Ct Baljeet has apprehended accused Naveen Kumar @ Babla on 03.02.2010 at about 5 p.m. while he was patrolling near Ingate of New Subzi Mandi, Azadpur, Delhi. He further deposed that search of accused Naveen Kumar @ Babla FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 8 / 36 was conducted and on his search one Buttondar Knife was recovered from the right pocket of his pant. He thereafter handed over the accused to SI Rajesh. He further deposed that in the present case accused was arrested by SI Rajesh in his presence and thereafter accused Naveen @ Babla made a disclosure statement Ex.PW9/B. The disclosure statement was recorded by HC Ved Parkash and SI Rajesh in another case and proved as Ex.PW9/A. He has further proved the pointing out memo Ex.PW9/C and Ex.PW9/D. He further deposed that he was witness to the recovery of Rs.7,500/ at the instance of accused Naveen @ Babla from his house which was seized vide seizure memo Ex.PW9/E and Ex.PW9/F. He has identified the case property i.e. 15 currency notes of the denomination of Rs.500/ and proved the same collectively Ex.PX.
19) PW10 SI Rajesh Kumar is the IO of this case and as per prosecution case he prepared a ruqqa and proved the same as Ex.PW10/A. He recorded statement/complaint of Ali Mohd Ex.PW2/A. The disclosure statement of accused Shekhar Yadav is proved as Ex.PW10/B; arrest memo and personal search memo Ex.PW10/C and Ex.PW10/D; arrest memo of accused Dinesh Haddi is Ex.PW10/E.
20) PW11 Ct. Devender accompanied SI Rajesh Kumar to FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 9 / 36 the spot on 30.01.2010 after receiving DD No.3A. He has deposed all the facts which were deposed by the IO and the same needs not to be repeated here.
21) PW12 Dr. Neeraj Chaudhary, Medical Officer from BJRM Hospital has proved the MLC of both the injured persons and proved the same as Ex.PW12/A regarding Ali Mohd and Ex.PW12/B regarding Abdul Hamid.
22) PW13 Shri Neeraj Gaur, the then Ld MM has conducted the TIP of accused Dinesh @ Haddi vide TIP proceedings as Ex. PW13/E and that of accused Naveen @ Babla vide TIP proceedings as Ex. PW13/J.
23) In their statement u/s 313 CrPC accused persons have denied the allegations stating that they were innocent and falsely implicated in this case and they did not desire to lead evidence in defence.
24) I have heard Shri Yashvir Singh advocate, Ld Legal Aid Ld counsel for accused Dinesh @ Haddi and Ms. Neelam Singh advocate Ld Amicus Curiae for accused Naveen Kumar @ Babla and Shri D.P. Sharma advocate Ld counsel for accused Shekhar Yadav.
25) Ld counsel Shri. D.P. Sharma advocate for accused Shekhar Yadav has assailed the prosecution case on the following FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 10 / 36 grounds:
(a) Testimony of PW2/complainant is unreliable as it suffers from various improvements.
(b) There are contradictions in the deposition of PW2 and PW3 for the purpose of their visit to Delhi because PW2 has stated that they were going to Ajmer and PW3 has stated that they have come to Delhi for settling their accounts.
(c) The clothes of the injured were not seized and corresponding cut marks to the injuries on the clothes in case complainant was attacked with knife are not proved.
(d) DD no. 3A regarding arrest of accused Shekhar by HC Liyakat Ali has not been proved in evidence.
(e) The prosecution has failed to prove the site plan and in the absence of the site plan the place from where the light was coming and the position of the pole has not been proved.
(f) The testimony of PW2 is contradictory regarding the attack upon him by three persons.
(g) Accused Shekhar Yadav was not arrested on the place of injury which falsify the prosecution case that he was arrested from the spot.
(h) No public/independent witness FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 11 / 36 was joined despite deposition of PW3 that many public persons were present near the place of incident.
It is therefore argued that case of the prosecution is not proved against accused Shekhar Yadav beyond reasonable doubt and accused was entitled to be acquitted.
26) Ld Amicus Curiae Ms. Neelam Singh advocate for accused Naveen Kumar @ Babla has argued the prosecution has failed to prove its case against the accused beyond reasonable doubt on the following ground as under:
(a) Complainant/Ali Mohd PW2 has stated nothing against accused Naveen.
(b) No weapon of offence was recovered from any of the accused which cast a shadow of doubt in the story of the prosecution case.
(c) Recovery of amount of Rs.15,000/ from accused Naveen has not identified in judicial TIP or in the court by the witnesses, hence same is not admissible.
(d) PW3 did not support the prosecution case and turned hostile.
(e) Accused Naveen and accused Dinesh were not arrested from the spot and has been falsely implicated.
It is therefore argued that case of the prosecution is not FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 12 / 36 proved against accused Naveen Kumar@ Babla beyond reasonable doubt and accused was entitled to be acquitted.
27) It is argued by Ld Amicus Curiae Shri Yashvir Singh advocate on behalf of accused Dinesh @ Haddi that case of the prosecution is not proved because of the following reasons as under:
(a) Weapon of offence has not recovered from the possession of accused Dinesh @ Haddi despite his disclosure statement.
(b) Complainant/PW2 Ali Mohd has identified the accused in judicial TIP as his photograph had already been shown to the complainant who identified him at the instance of police.
(c) PW3 turned hostile and did not support the prosecution case and has identified the accused.
(d) It is admitted by PW3 in his crossexamination that he could not identify accused Naveen and Shekhar Yadav as it was darkness at the spot which shows that his identification of accused Dinesh was false and at the instance of police.
(e) There is no evidence to show that accused were known to each other and were present on the spot at the time of alleged incident and hence case of the prosecution is not proved FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 13 / 36 beyond reasonable doubt.
It is therefore argued that case of the prosecution is not proved against accused Dinesh @ Haddi beyond reasonable doubt and accused was entitled to be acquitted.
28) Ld Addl. PP for the State on the other hand argued that PW2 Ali Mohd and PW3 Abdul Hamid are the star witnesses of the prosecution and they have fully supported the prosecution case on all material points.
29) It is further argued that the deposition of PW3 who was declared hostile has also sufficiently proved that he was present on the spot and he has identified accused Dinesh @ Haddi in judicial TIP. His deposition regarding other accused persons shows that whatever was deposed by him was deposed as truth.
30) Regarding minor contradictions in the deposition of the star witnesses it is stated that they belonged to Jammu & Kashmir and their evidence was recorded after about one year of the incident.
31) Both the PWs has identified accused Shekher Yadav whereas PW3 has identified accused Dinesh @Haddi in judicial TIP and therefore identification of accused Naveen Kumar has also been proved as he has refused to join the proposed TIP.
32) Nonseizure of the clothes to show the corresponding
FIR no. 19/10
State Vs Dinesh Haddi etc Page no. 14 / 36
injuries/cutmarks has not adversely affected the prosecution case as the deposition of the prosecution witnesses is natural and straightforward on all material points. Ld Addl. PP for the State therefore prayed for conviction stating that prosecution has succeeding in proving its case against the accused persons beyond reasonable doubt.
33) Accused persons have been charged for the offence of robbery and the aggravated form of robbery as defined u/s 390 IPC punishable u/s 392/394 IPC. Since it is alleged that while committing robbery a deadly weapon i.e knife was used by the accused persons therefore they have been charged for the offence u/s 397/34IPC. Accused Naveen Kumar has also been charged for the offence u/s 411 IPC as an amount of Rs. 7500/ out of robbed amount was recovered at his instance from his house.
34) I have scrutinized the evidence led by the prosecution and considered the arguments advanced at bar, to find out whether the prosecution has succeeded and established the charge against the accused persons?
35) PW2 Ali Mohd is the complainant/injured and PW3 Sh. Abdul Hamid is an eye witness of the alleged incident of robbery. As per deposition of PW2 Ali Mohd, he alongwith his friend Abdul Hamid entered in the gate of Azadpur mandi, four FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 15 / 36 persons had surrounded them and asked them to give whatever money they were having; he resisted and refused to give the money; one of those boys assaulted both of them with the knife and robbed the money of his friend Abdul Hamid which he was carrying in his pant pocket. He further deposed that he received knife injuries on his forehead, neck and abdomen and his friend Abdul Hamid received injuries on his head, shoulders and waist; the assailants robbed around Rs. 15,000/ from Abdul Hamid by removing the same from the pocket of his pant. In the meantime when they were robbing them, police gypsy arrived at the spot and all the assailants ran away in a gali inside the gate of Azadpur mandi; police gypsy chased the assailants after boarding the gypsy and caught hold one of the assailants who was identified as Shekhar Yadav. He further deposed that his statement was recorded by the police at the place where accused Shekhar Yadav was apprehended. He further deposed that after the incident he alongwith his friend were taken to police station and accused Shekhar Yadav was left in the Police Station and he and his friend were taken by the police to hospital and they were given medical aid. He has also identified other assailants accompanying accused Shekhar Yadav by pointing out towards accused Naveen and Dinesh stating that they were accompanying accused FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 16 / 36 Shekhar Yadav on the date of incident and also having knives in their hands. He further stated that both Naveen and Dinesh assaulted him and his friend with knives and he has identified accused Dinesh in judicial identification parade before the Ld MM and has proved the proceedings of TIP as Ex. PW2/B.
36) In his crossexamination by Ld counsel for accused Shekhar Yadav, he has deposed that many persons were present at a distance from the place where the incident took place and after the incident the public persons did not make hue and cry and they remained calm in their respective places. He further deposed in his crossexamination that there was an electric pole and lights was coming and after surrounding them accused persons have taken them towards the corner. He further admitted that no money or weapon was recovered from the possession of accused Shekhar Yadav in his presence.
37) In his crossexamination Ld counsel for accused Naveen Kumar and Dinesh @ Haddi, he has stated that accused Shekhar Yadav had demanded money in the beginning while others were accompanying him; the accused took them aside in the corner and the said corner was not visible from the gate as the corner was a parking place and vehicles were standing at that time; the place was also not so dark so that the face of accused FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 17 / 36 persons were not visible; accused were having knives in their hands when they took them towards the corner. He further deposed that accused Dinesh has assaulted him at first instance and when they had not found anything in his pocket, they had assaulted his friend Abdul Hamid. He further stated that there was only one knife with the accused persons and after assaulting him the knife was handed over to the other accused who had assaulted his friend with the same knife. He further stated that only accused Shekhar Yadav was apprehended at the spot and accused Naveen and Dinesh were apprehended later on by the police. He further stated that he was called for judicial Test Identification Parade of accused Naveen but he refused to participate the judicial TIP. He further clarified that name of accused Naveen he came to know lateron after he had identified him.
38) PW3 Abdul Hamid had deposed that on their refusal to give money one of those four assailants assaulted him and his friend Ali Mohd with knife. He further deposed that one police gypsy arrived at the spot and on seeing the police those four boys ran away in a gali inside the gate of Azadpur Mandi, however, police official caught hold of one of those persons. He further clarified that persons who stabbed and robbed his cash amount FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 18 / 36 was accused Dinesh and was correctly identified by him. He further deposed that after receiving injuries he fell down on the ground and became unconscious and therefore could not identify remaining two persons who had caught hold his friend Ali Mohd. He further clarified that he could not say if accused Shekhar Yadav and Naveen @ Babla were among those four persons who assaulted and robbed them. He further stated that since he fell down after sustaining injuries therefore could not say which of the accused persons was apprehended by the police near the spot and he came to know this fact in the hospital where name of the said person was told to him as Shekhar Yadav.
39) This witness was declared hostile by Ld Addl. PP for the State and was crossexamined wherein he has denied having made the statement to the police. He has identified accused Shekhar who was apprehended by the police near the spot in his presence. In his crossexamination on behalf of accused Shekhar Yadav, he has stated that he was able to identify only one accused Dinesh @ Haddi who had attacked him and could not identify the remaining persons as there was darkness at the spot. He clarified that there were shops near the spot, however they were closed at the time of incident.
40) PW4 HC Liyakat Ali had deposed that upon seeing the
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State Vs Dinesh Haddi etc Page no. 19 / 36
PCR vehicle 34 persons were running towards the Subzi Mandi and he chased those 34 persons and apprehended one person whose name was Shekhar Yadav. He further deposed that thereafter he alongwith his staff of PCR, the injured persons and accused Shekhar Yadav went to Police Station Mahindra park where he handed over the accused to the Duty Officer and thereafter he alongwith his staff took the injured persons to BJRM hospital and got them admitted in the hospital. He has correctly identified accused Shekhar Yadav. In his cross examination he has stated that he did not interrogate the injured persons as they were not in a position to speak and took 10 minutes in understanding the position of the injured persons. He has categorically stated in crossexamination that: "It is correct that the 34 persons were running from the crowd and I apprehended one of them. It is correct that at the time of apprehending Shekhar Yadav I was not aware that he was the assailant.
............................... It might be correct that Shekhar Yadav out of fear had run away from the crowd and thereafter, I apprehended him."
41) PW10 SI Rajesh Kumar has also deposed that at the hospital, PCR van Incharge HC Liyakat Ali met him and informed him that one person namely Shekhar Yadav who was FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 20 / 36 involved in the incident was apprehended by him when he was trying to escape and his custody was given to the Duty Officer of Police Station Mahindra Park. He has interrogated Shekhar Yadav at Police Station Mahindra Park and thereafter arrested him vide memos Ex. PW10/C and Ex. PW10/D. Similar is the deposition of the PW11 Ct. Davender who has accompanied SI Rajesh Kumar PW10 during investigation.
42) Ld Addl. PP for the State has argued that the evidence on record has sufficiently established that accused Shekhar Yadav was apprehended on the spot after a chase by HC Liyakat Ali of PCR van and he has been correctly identified by all the material witnesses as one of the assailants. Ld counsel for accused Shekhar Yadav has strongly argued that it is admitted by PW3 in his crossexamination that there was darkness at the spot and he could not identify accused Shekhar Yadav and Naveen due to darkness. It is further argued that site plan has not been proved to show that light was coming from the pole on the spot. It is further argued that the identification by the injured person is false identification which has been done at the instance of police. It is further argued by Ld defence counsel of accused Shekhar Yadav that it was admitted by PW4 Liyakat Ali in his crossexamination that at the time of apprehending of Shekhar Yadav he was not FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 21 / 36 aware if he was one of the assailants and has further stated that there is possibility that Shekhar Yadav out of fear had run away from the crowd and thereafter apprehended by him.
43) PW2 Ali Mohd/complainant and injured has categorically deposed that police gypsy chased the assailants and caught hold one of assailants who was identified as Shekhar Yadav; his statement recorded by the police at the place where accused Shekhar Yadav was apprehended; Accused Shekhar Yadav was left in police station and he and his friend were taken by the police for medical aid. He has also identified other assailants accompanying accused Shekhar Yadav and identified accused Naveen and Dinesh stating that they were having knives in their hands. He further deposed that in his crossexamination on behalf of Shekhar Yadav that many persons were present at the incident where incident took place and after the incident public persons did not make hue and cry and remained calm in there respective places. He has denied the suggestion put by Ld counsel for accused Shekhar Yadav that accused Shekhar was picked up by the police from public and falsely implicated him. In his crossexamination by Ld counsel for accused Naveen Kumar @ Babla and Dinesh @ Haddi, this witness has categorically stated that the accused Shekhar Yadav had FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 22 / 36 demanded the money in the beginning and all others were accompanying him; the accused took them aside in the corner, after conversation and that corner was not visible from the gate; that place was also not so dark that the accused persons faces were not visible. He further deposed that only Shekhar Yadav was apprehended at the spot and accused Naveen @ Babla and Dinesh @ Haddi were apprehended later on by the police.
44) Similarly, PW3 Abdul Hamid another injured has deposed that four boys ran away in a gali who were chased by the police and one of assailants was caught while running alongwith his associates. He further stated that after being stabbed by accused Dinesh @ Haddi, he fell down on the ground and became unconscious and therefore he could not identify remaining two persons who caught hold of his friend Ali Mohd. This witness was declared hostile and has denied the suggestion of Ld Addl. PP for the State that he made statement Ex. PW3/A mentioning that accused Shekher Yadav was apprehended on the spot by the police who has revealed the name of other two persons during investigation. He voluntarily clarified in his cross examination that he came to know the fact of apprehending of one person on the spot by the police in the hospital and his name was told to him as Shekhar. It has already been argued on behalf FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 23 / 36 of accused Shekhar Yadav that PW3 Abdul Hamid has identified him at the instance of police as could not see him due to darkness and further PW4 HC Liyakat Ali has already deposed that there was possibility that Shekhar Yadav might be part of the crowd which was running here and there. In this regard testimony of PW2 Ali Mohd is found to be natural and straightforward as he has categorically deposed that the place was also not so dark so that the face of accused persons were not visible. He has further clarified that light was coming from the pole where accused was arrested. The defence has been changed by accused Shekher Yadav while replying the incriminating evidence about his apprehending by the police in his statement u/s 313 CrPC where he has stated that he was lifted from the place of his work where he was working as a Palledar in Azadpur Mandi and falsely implicated in this case. In reply to question no. 16 in statement u/s 313 CrPC he has stated as under: "I have been lifted from the place of my work. "
45) Similar is the reply to the question no. 31 in the statement u/s 313 CrPC. In reply to last question no. 37 of statement u/s 313 CrPC , he has stated that he has been working as Palledar and he was lifted by the police from his work without any cause; he was falsely implicated in this case. In the cross FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 24 / 36 examination of all the material witnesses it was suggested that he was apprehended on the spot as he was present there among the crowd. The contrary stand taken in crossexamination of the witnesses visaviz his reply to the incriminating evidence in statement u/s 313 CrPC shows that the defence taken by the accused that he was lifted from the place of his work was an afterthought.
46) The deposition of PW2 Ali Mohd and PW4 HC Liyakat Ali has sufficiently established that accused Shekhar Yadav was apprehended by the PCR van i.e HC Liyakat Ali on the spot and thereafter taken to police station. The deposition of these witnesses found support from the documentary evidence on record i.e complaint Ex. PW2/A, rukka Ex. PW10/A and DD no.
3A which was recorded in Police Station Mahindra Park where it is stated that two persons were stabbed at ingate of Subzi Mandi Azadpur and one of the persons has been apprehended by the PCR. There is no force in the arguments on behalf of accused persons that the said DD entry has not been proved in evidence. Since it was admitted by accused Shekhar Yadav that he was present on the spot and apprehended from the crowd, the prosecution did not think it necessary to prove the said DD entry wherein it was mentioned that one of the assailants was FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 25 / 36 apprehended by the PCR. It stands proved in the testimony of PW2 that public persons present on the spot did not make any hue and cry and remained calm and present on the spot and did not move here and there. I do not find any reason to disbelieve the unassailed testimony of PW2 with regard to accused Shekhar being one of the assailants and being apprehended at the spot by the PCR van.
47) Regarding accused Dinesh @ Haddi it was argued on his behalf by Ld Legal Aid Counsel Sh. Yashvir Singh advocate that weapon of offence has not been recovered; he was identified by the complainant Ali Mohd as his photographs were shown in the Police Station; PW3 Abdul Hamid turned hostile and stated that there was darkness on the spot as such identification of accused Dinesh @ Haddi by complainant was at the instance of police. Ld Addl. PP for the State on the other hand submitted that accused Dinesh @ Haddi was duly identified by the complainant in the judicial test identification parade and he has also been identified by the complainant/PW2 Ali Mohd in the court and he has also been identified by PW3 Abdul Hamid who has categorically stated that the person who has stabbed and robbed his cash was accused Dinesh @ Haddi, present in the court. PW3 categorically stated that other assailants who accompanied FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 26 / 36 accused Shekhar Yadav were present in the court and pointed out towards accused Naveen and Dinesh stating that they accompanied accused Shekhar Yadav at the time of incident and they were having knives in their hands; both of them assaulted him and his friend with knives. He further deposed that he has identified accused Dinesh @ Haddi in judicial TIP and proceedings were proved as Ex. PW2/B and signatures were identified at pointA. In his crossexamination by Ld defence counsel he has stated that accused Dinesh @ Haddi has assaulted him at first instance and when they did not find anything in his pocket of pant they had then assaulted his friend Abdul Hamid. PW3 is another injured who has also identified accused Dinesh @ Haddi who has assaulted him stating that person who had stabbed and robbed his cash amount was present in the court and correctly identified accused Dinesh @ Haddi. He further stated that after receiving injuries he fell down and became unconscious and therefore could not identify properly the remaining two persons who had caught hold of his friend Ali Mohd.
48) PW10 SI Rajesh Kumar is the IO of the case who had deposed that accused Dinesh @ Haddi was correctly identified in judicial TIP whereas accused Naveen has refused to participate in the TIP. PW13 Shri Neeraj Gaur, Ld MM who has conducted FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 27 / 36 the TIP proceedings deposed that witness Ali Mohd correctly identified accused Dinesh @ Haddi during TIP and his statement in that regard was recorded by him which is Ex. PW13/C.
49) In his statement u/s 313 CrPC accused Dinesh has stated that he was innocent and falsely implicated as he has never committed any offence and instead of searching the real culprit the police has falsely implicated him in order to solve its case. Regarding identification in TIP proceedings he has stated that his photographs were shown to the complainant in the police station and as such he has identified him easily. He did not desire to lead evidence in defence. It is not explained by him in case his photographs were already shown to complainant why then he did not exercise the option of not joining the TIP. The evidence as discussed above has clearly established that accused Dinesh @ Haddi was one of the assailants who has caused injuries to the complainant/PW2 Ali Mohd and PW3 Abdul Hamid while robbing them of their amount.
50) Regarding accused Naveen @ Babla, it was argued by Ld Amicus Curiae Ms Neelam Singh advocate that complainant/Ali Mohd has stated nothing against him; the weapon of offence was not recovered from his possession; the amount of Rs. 7,500/ recovered from him has not been identified FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 28 / 36 in judicial TIP or in the court by the witnesses and as such that recovery is not admissible; PW3 did not support the prosecution case against him and he was never arrested from the spot. The contentions of the Ld counsel are not forceful in view of the deposition by PW2 who has pointed out towards accused Naveen and accused Dinesh stating that they were accompanying accused Shekhar on the date of incident and were having knives in their hand; both of them assaulted him and his friend with knives. He further deposed in his crossexamination that accused Shekhar had demanded money in the beginning and all other were accompanying him; accused took them aside in the corner which was a parking place and it was not so dark so that the accused persons and their faces were not visible; accused were having knives in their hands when they taken them towards corner. PW3 has deposed that he was stabbed by accused Dinesh and correctly identified him and further stated that after receiving injuries he fell down on the ground and became unconscious and he could not identify properly the remaining two persons. The deposition of PW2 regarding involvement of accused Naveen as assailant is consistent and reliable as there is nothing in his cross examination so as to disbelieve his testimony as discussed above.
51) Regarding the recovery of cash of Rs. 7,500/from
FIR no. 19/10
State Vs Dinesh Haddi etc Page no. 29 / 36
accused Naveen, PW3 from whose pocket the said money was removed at the time of assault and robbery has stated that cash amount of Rs. 15,000/ were in denomination of Rs. 500/ and Rs. 1000/ and only one currency note of Rs. 1000/ and remaining notes were of Rs. 500 each. He further clarified that the said amount was received by him from Mr. Adti, fruit purchaser at about 4pm on 29/01/2010. He further stated that he was informed that the cash of Rs. 7,500/ was recovered from one of the accused out of the robbed money. Evenif, the said recovered amount is not shown to the witness in his cross examination and has not been identified by him as such in judicial TIP, the deposition of the witnesses with regard to he being robbed Rs. 15,000/ is consistent and reliable. PW3 had deposed that the person who was near to him has robbed Rs. 15,000/ from his pocket of pant which he was wearing at that time. He further clarified that the said person who robbed his cash was accused Dinesh and was correctly identified by him.
52) Accused Naveen @ Babla was arrested in case FIR no. 23/2010 u/s 25/59 Arms Act of the same police station on 03/02/2010. During interrogation he has disclosed his involvement in the present case alongwith his other associates Shekhar Yadav, Dinesh and Rukmani. After interrogation SI FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 30 / 36 Rajesh Kumar has arrested accused Naveen in the present case and recorded his disclosure statement and thereafter accused led him to the spot and pointed out the spot vide memo Ex. PW9/C. It is further deposed by PW9 Ct. Baljeet that thereafter accused Naveen has led them to his residence at house no. T10/169 Village Bharola, Delhi and got recovered Rs.7,500/ from an iron box in his house and the said amount was constituted in 15 currency notes of Rs. 500/each which were taken into possession vide memo Ex. PW9/F. PW9 Ct. Baljeet has correctly identified the said currency notes collectively Ex.PX. PW10 SI Rajesh Kumar, IO of the case has fully corroborated and supported the version of PW9 regarding arrest of the accused and recovery of those currency notes at his instance from his house. PW10 SI Rajesh Kumar further deposed that accused Naveen refused to participate in the TIP. The TIP proceedings with regard to accused Naveen has been proved by PW13 as Ex. PW13/J and accused refused to participate in the judicial TIP despite warning by Ld MM/PW13 to the effect that his refusal may result into drawing an adverse inference by the Trial Court. Despite warning accused refused to join the judicial TIP. The reasons given by him for nonjoining of TIP vide his statement Ex. PW13/I are that his photographs were taken at Police Station. He has not stated that FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 31 / 36 the said taken photographs had been shown to the witness for identification of accused Naveen by both PW2 and PW3. The deposition of PW2 is natural and his deposition in this regard is consistent and reliable as there was no crossexamination to show that he has falsely named the accused as one of the assailants. The reasons assigned by the accused for nonjoining of proposed TIP is not satisfactory and seems to be an afterthought. The evidence on record has therefore sufficiently established the involvement of accused Naveen@ Babla as one of the assailants in the alleged incident of robbery.
53) The question needs to be considered is whether the prosecution has succeeded in establishing the charge u/s 392/394/397/34IPC against all the accused persons and charge u/s 411IPC separately against accused Naveen @ Babla. As discussed above from the deposition of main witnesses their presence on the spot has been proved from their deposition as well as from the MLCs Ex. PW12/A and Ex. PW12/B as they have sustained injuries on their body at the time of alleged robbery and presence of injured persons on the spot at the time of robbery stands established by deposition of other witnesses including PW4 Liyakat Ali PCR official. It has been established beyond reasonable doubt in the deposition of all the material FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 32 / 36 witnesses that all the accused person infurtherance of their common intention alongwith one unidentified accused has robbed Rs. 15000/ by removing it from the pocket of PW3 forcibly after causing injuries by way of knife. The sustaining of injuries by both PW2 and PW3 stands established from the deposition of PW12 who has proved the MLCs of injured persons as Ex. PW12/A and Ex. PW12/B. Ex. PW12/A is MLC of Ali Mohd . As per said MLC he was brought to the hospital with the alleged history of physical assault and has sustained 2 lacerated wound of 3 cm in frontal region, 2cm in left neck region and stab wound 1 cm above the umbilicus. Similarly, MLC Ex PW12/B relates to Abdul Hamid who was also brought to the hospital with the alleged history of physical assault one and half hour back. He has been shown one lacerated wound 3X0.5cm over occipital region of head. One stab wound approximately 1X0.5X3cm over right side of post chest. 3 incised wound over right shoulder 2X1cm each.
54) There is nothing deposed by PW12 Dr. Neeraj Chaudhary who has proved the MLCs prepared by other doctors Dr.Sandeep, Dr. Sunil and Dr. Danish as they were not available in the hospital, to the effect that wounds sustained by injured persons had been caused by knife or by a deadly weapon. The FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 33 / 36 majority of the wounds are lacerated wounds and only one stab wound noticed on the body of each injured. There is no opinion of the doctors who examined the injured persons that the said wound was caused by a knife or a sharp edged weapon. Admittedly, the alleged sharp edged weapon i.e knife which was used by the accused persons for committing robbery has not been recovered. It was argued on behalf of accused that injuries caused by knife has not been established because the corresponding cut marks on the clothes of the injured has not been proved as the clothes worn by the injured persons were not seized or proved in evidence to establish the sharp edged injuries on their bodies.
55) The deposition of PW12 and MLCs Ex. PW12/A and Ex. PW12/B has sufficiently established that both the injured PW2 and PW3 has sustained injuries on their person at the time of alleged robbery committed by the accused persons. In the absence of sufficient evidence of using of sharp edged weapon/deadly weapon i.e knife, committing robbery while using deadly weapon has not been established beyond reasonable doubt so as to bring the case within the four corner of section 397/34IPC. The evidence on record has sufficiently established that both the injured were robbed by the accused person in furtherance of their commission intention and while robbing FIR no. 19/10 State Vs Dinesh Haddi etc Page no. 34 / 36 them they have voluntarily caused injuries. Thus case of the prosecution has been established beyond reasonable doubt for the offence u/s 392/394/34 IPC against all the accused persons.
56) Regarding the charge for the offence u/s 411 IPC against accused Naveen it was argued by the Ld counsel that recovery of amount of Rs. 7,500/ has not been established beyond reasonable doubt because it is not established that the recovered amount was robbed amount because same was not identified by the witnesses as it was never put to them in their evidence by the prosecution. Further, no public witness was joined at the time of alleged recovery from the house of accused where other family members of the accused were also present and it has not established that the iron box from which the amount was recovered was in the exclusive possession of the accused. Further no site plan of place of recovery of the robbed amount has been prepared by the IO so as to give credence to the story of the prosecution that Rs.7,500/ were robbed amount having been recovered at the instance of accused Naveen in pursuance of his disclosure statement so as to prove the recovery under section 27 of the Indian Evidence Act. In view of lack of sufficient evidence prosecution has failed to prove the charge u/s 411 IPC against accused Naveen @ Babla.
FIR no. 19/10
State Vs Dinesh Haddi etc Page no. 35 / 36 57) From the above discussions, I am of the considered
opinion that prosecution has succeeded in establishing its case against all the accused persons beyond reasonable doubt for the offence u/s 392/34IPC and u/s 394/34IPC. I therefore hold them guilty and convict each accused for the offence u/s 392/394/34IPC.
ANNOUNCED IN THE OPEN COURT
th
ON 30 OCTOBER, 2014.
(RAJ KUMAR CHAUHAN)
ASJ (ELECTRICITY)
NORTH WEST DISTRICT
ROHINI :DELHI
FIR no. 19/10
State Vs Dinesh Haddi etc Page no. 36 / 36