Delhi District Court
State vs Kunal on 9 October, 2023
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IN THE COURT OF MS.NEHA PALIWAL SHARMA,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI
COURTS, DELHI
CNR No. DLWT01-002968-2022
Sessions Case No. 176/22
FIR No. 862/2021
PS Ranhola
State
v.
Kunal @ Akhtar Ali
S/o Sh. Sahid @ Asgar Ali
R/o B-1, Gali no.1, Vikrant Vihar
near Balaji Chowk, Uttam Nagar,
Delhi
and
R/o B-696, Lal Flats, Bawana, Delhi
Date of Institution : 05.03.2022
Date of committal : 30.03.2022
Date of reserving Judgment : Not reserved
Date of Decision : 09.10.2023
Final Judgment : Accused Kunal @
Akhtar is convicted for
the commission of
offences punishable under
section 394 IPC read with
section 397 IPC and
section 25 Arms Act
FIR No: 862/2021 PS Ranhola
State v. Kunal @ Akhtar Page 1 of27
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JUDGMENT
Case of the Prosecution in brief :
1. Accused Kunal @ Akhtar was arraigned for trial by the prosecution on the ground that on 08.12.2021 at about 03:30 am at plot no. 48E, Sayad Enclave, Vikrant Vihar near Makki Masjid Bankuti Chowk, Mohan Garden, Uttam Nagar, Delhi, within the jurisdiction of PS Ranhola, he committed robbery of Rs. 200/- from complainant Mehboob Khan after showing knife to him and while committing robbery, he also caused injury on the fingers of both hands of Adil (younger son of complainant) and also caused injury on the little finger of Irfan (elder son of complainant). The said injuries were simple in nature and were caused with the usage of knife. The said knife was in contravention of Arms Act and was snatched from the accused by Adil and Rs.200/- were also recovered from the possession of the accused.
Initial receipt of information of offence, registration of FIR and investigation conducted :
2. In the intervening night of 07-08.12.2021, IO/SI Rahul on receipt of DD no. 9A, went to the spot alongwith constable Manoj.
Complainant Mehboob Khan met him and produced the accused alongwith one knife to IO stating that the accused had shown knife to him and had robbed Rs. 200/- from him. Cursory search of accused was conducted and Rs.200/- were recovered from the right pocket of the worn jeans pant of the accused. The said money was seized. The FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 2 of27 :3: sketch of knife was prepared and the knife was also seized. Complainant stated that he will give his complaint later on after coming to the police station. Both injured persons namely Adil Khan and Irfan Khan, who were sons of the complainant, were sent alongwith accused to DDU hospital for medical examination. Their MLCs were procured.
Statement of victim/injured :
3. It was stated by victim Mehboob Khan that he resides at the spot for last 7/8 years and drives rickshaw. In the intervening night of 7- 8.12.2021 at around 03:30 am, when he was sleeping outside his house, an unknown person came and woke him up. That unknown person showed knife to him and asked him to handover all the money in his pocket to him. Thereafter, he gave Rs. 200/-, which were in his pocket, to that person. That person however then asked him to open the lock of the gate and bring money from inside the house. His younger son woke up on hearing voices and the moment he opened the lock of the gate his younger son Adil came out. That person tried to escape from the spot however, he made him fell down. In the meanwhile, his elder son Irfan also came out of the house. He alongwith his both sons tried to snatch the knife from that person, however, in the scuffle, from that knife injuries were sustained on the fingers of both hands of his son Adil and on the little finger of the right hand of his elder son Irfan Khan. That person also sustained injury on his neck. Neighbours also gathered at the spot on hearing the noise and they all apprehended that person and snatched knife from his hand. Police was called at 112 number. On FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 3 of27 :4: interrogation, the name of that person was disclosed as Kunal @ Akhtar. Knife was also handed over to the investigating agency.
4. On the basis of the statement of the complainant, the circumstances of the spot and the MLCs of the victims, rukka was prepared by the IO for the offence under section 394/411 IPC and FIR was got registered.
5. Site plan was prepared at the instance of the complainant by the IO. Local inquiry was conducted. No CCTV camera was found covering the incident or the spot nearby the place where the incident took place. Statements of witnesses were recorded u/s 161 Cr.P.C.
Accused was arrested and was sent to J.C. Section 397 IPC was added during investigation as knife, which is a deadly weapon, was recovered from the possession of accused and was used by accused while committing robbery. Opinion was obtained on the MLCs of the injured persons. The nature of injury was opined as 'simple' by the examining doctor on the MLC of injured Adil. After completion of investigation, charge sheet was filed before the Court.
Trial Proceedings :
Charge :
6. Vide order dated 26.07.2022, accused Kunal @ Akhtar Ali was charged for the offences punishable under section 394 IPC, section 397 IPC, section 25 Arms Act, section 27 Arms Act and in the alternative FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 4 of27 :5: under section 411 IPC, to which the accused pleaded not guilty and claimed trial.
Admission-denial of documents under section 294 Cr.P.C:
7. Accused Kunal @ Akhtar on 19.09.2022, admitted the registration of FIR no. 862/2021, Ex.PX1, certificate under section 65B of the Indian Evidence Act with respect to registration of the FIR, Ex.PX2, endorsement made by duty officer on rukka, Ex.PX3, recording of GD no. 9A dated 08.12.2021, Ex.PX4, recording of GD no. 24A dated 09.12.2021, Ex.PX5 and recording of GD no.25A dated 09.12.2021, Ex.PX6. Therefore, duty officer WHC Sunita and DD writer HC Kapil Kumar were not examined as prosecution witnesses.
Prosecution evidence :
8. Seven witnesses were examined by the prosecution in order to prove its case against the accused.
9. PW-1 Mehboob Khan is the complainant and had deposed on the same lines as that of his complaint. By his deposition, the State had sought to prove his statement Ex.PW-1/A, seizure memo of recovered knife Ex.PW-1/B, sketch of recovered knife Ex.PW-1/C, seizure memo of Rs.200/- Ex. PW-1/D and arrest memo of accused Ex.PW-1/E. The witness had correctly identified the accused as well as case properties, that is, knife Ex.P.1 and two currency notes of the denomination of FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 5 of27 :6: Rs.100/- each, Ex.P.2 (colly.), before the Court. There is variation in his statement to the effect that he had deposed that the incident took place at about 02:30 am instead of 03:30 am as stated in the complaint.
10. PW-1, in his cross-examination, deposed that he uses spectacles.
Public persons of the locality had gathered at the spot. His wife and daughter- in-law had also come out from the house after listening to the noises. Police officials had reached at the spot within 20-25 minutes after his making the PCR call.
11. PW-2 Irfan Khan had deposed that in the intervening night of 07- 08.12.2021, his parents were sleeping outside the house after locking the gate. His father used to sleep outside the house as he used to park his battery rickshaw outside the house. At about 03:30 am, he heard alarm of his father and thereafter, came out of the house. At that time, the gate of his house was open. He saw that his father and brother Adil Khan had apprehended accused Kunal @ Akhtar and accused Kunal @ Akhtar was having knife in his hand. His brother Adil had sustained injuries on the three fingers of one hand and one finger of another hand, which were inflicted due to the knife which was held by the accused. When he tried to apprehend the accused, he also sustained injury on his right hand ring finger. Thereafter, his brother Adil snatched knife from the accused. Accused tried to stab his father with knife but they saved their father. In the meantime, public persons from the locality also gathered at the spot and knife was taken from the accused. Someone FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 6 of27 :7: called at 112 number and police reached at the spot. The name of accused was disclosed as Kunal @ Akhtar during interrogation. The recovered knife was handed over to the police officials. Police officials took him and his brother Adil to DDU hospital for medical examination and his statement was recorded by the IO. He correctly identified the accused as well as knife Ex.P.1 before the Court.
12. PW-2, in his cross-examination by the ld. Defence counsel, deposed that the police reached at the spot after 30 minutes of making the call. His father had told him that initially accused had requested his father to allow him to sit in the battery rickshaw on the ground that police officials are searching for him. At the time of incident, accused was wearing face mask. The lock & key by which his father used to lock the house was not seized in his presence. The main gate of the house was opened by his father under threat of the accused when he had threatened his father with knife to open the gate of the house. He admitted that when he came out of the house, his brother Adil had already apprehended the accused.
13. PW-3 Adil Khan had deposed that in the intervening night of 07- 08.12.2021, at about 03:30 am, he had woken up to attend nature's call. He was on the upper floor when he heard the voices of his parents and he immediately went to the ground floor. At that time, the door of the ground floor was locked. His father opened the door and he saw that one person was standing besides his father holding a knife in his hand.
FIR No: 862/2021 PS Ranhola
State v. Kunal @ Akhtar Page 7 of27
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On seeing him, that person tried to escape. His father caught hold of that person and in the meantime, he also held that person. That person was having a knife. In the scuffle that ensued, in which he was trying to take the knife from that person, that person inflicted injuries on the fingers of his both hand with the said knife. He had received injuries on his middle finger of right hand and three fingers on left hand. After he had sustained injuries, his brother Irfan Khan also reached there after hearing the voices. His brother also sustained injury on his ring finger of right hand with the knife when his brother tried to intervene. The knife of that person was taken from that person by him.
14. PW-3 further deposed that neighbours gathered at the spot and call at 100 number was made and police at reached the spot within half an hour. His parents were sleeping outside the house after locking the gate. His father had told him that accused had approached him stating that police is behind him and had asked his father to let him sit in the rickshaw for two minutes. His father also told him that accused took Rs.200/- from him and after taking money, he further asked his father to open the door of the house and to give more money to him. He correctly identified the accused before the Court. He further deposed that accused tried to stab his father but they saved their father. The name of the accused was disclosed during interrogation as Kunal @ Akhtar and the recovered knife was handed over to the police officials. He and his brother were medically examined from DDU hospital. He correctly identified the accused, knife Ex.P.1 and two currency notes of FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 8 of27 :9: the denomination of Rs.100/- each, Ex.P.2 collectively, before the Court.
15. PW-3 also admitted, in his cross-examination conducted by the ld. Defence counsel, that at the time of incident accused was wearing face mask. The lock & key, by which the door was locked, was not seized by the police in his presence. He was having active bleeding from his fingers and his clothes were also blood stained due to the said bleeding, but his clothes were not seized by the police.
16. PW-4 Dr.Himanshu Pandey had identified the signatures and handwriting of Dr.Akshay Bhardwaj before the Court. Dr. Akshay Bhardwaj had examined patient Adil Khan on 08.12.2021 vide MLC no. 10141/21, Ex.PW-4/A. As per MLC Ex.PW-4/A, the patient was examined in the ortho department by Dr.Akshay Bhardwaj and on examination, CLW found over left distal phalanx of left hand (middle, ring and little fingers). Tenderness was also present over left hand and wrist. There was no distal neuro vascular deficit. The noting of Dr.Akshay on the MLC is at point X. The nature of injury was opined as simple in nature.
17. PW-5 Dr.Manoj Bairwa, CMO, DDU hospital had identified the signatures and handwriting of Dr. Sangeeta before the Court. Dr. Sangeeta had examined patient Adil vide MLC no. 10141/21 dated 08.12.2021, Ex.PW-4/A. Thereafter, patient Adil Khan was referred to FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 9 of27 : 10 : SR, Ortho and plastic surgeon. On the same day, Dr. Sangeeta had also examined patient Irfan vide MLC No. 19716/21, Ex.PW-5/A and on local examination, superficial abrasion was found present over right hand ring finger. No final opinion was given on the MLC of patient Irfan.
18. PW-6 HC Manoj Kumar is the witness of investigation and PW-7 SI Rahul is the investigating officer. They both have deposed on the same lines as that of final report and with respect to the investigation conducted. They correctly identified the accused as well as case properties before the Court. They had deposed with respect to visiting the spot in pursuance to DD no. 9 A Ex. PX-4, meeting complainant, handing over knife as well as accused by complainant to IO, information received from the complainant with respect to the offence, interrogation of accused, taking of both the injured sons of the complainant as well as accused to DDU hospital, recording of statement of complainant Ex. PW1/A, registration of FIR, the arrest and personal search of accused vide memos Ex. PW1/E and Ex. PW6/A respectively, the recording of disclosure statement of accused Ex. PW6/B, the seizure of Rs. 200/- vide seizure memo Ex. PW1/D, preparing sketch of knife Ex. PW1/C, seizure of knife vide memo Ex. PW1/E and preparation of site plan Ex. PW6/C by the IO at the instance of complainant. PW-7 had also deposed with respect to seizure of blood sample of injured Adil vide seizure memo Ex. PW7/A, seizure of blood sample of accused Kunal vide memo Ex. PW7/B and application for taking opinion FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 10 of27 : 11 : regarding the nature of injury on MLC Ex. PW7/C.
19. PW-6 had admitted in his cross-examination the presence of four public persons of locality at the spot. He deposed that IO had not taken/lifted finger prints from the recovered knife in his presence.
20. PW-7 had deposed in his cross-examination that though there was street light at the spot, however he had not shown the same in the site plan. He denied that there was complete darkness at the spot. He admitted the presence of public persons at the spot, however deposed that no notice was given to them when they refused to join investigation. He admitted that he had not taken/lifted finger prints from the recovered knife. The blood sample of accused and injured was not sent to FSL.
21. Prosecution evidence was closed vide order dated 05.09.2023 on submissions of Ld. Addl. PP for the State that all the material prosecution witnesses as per list of witnesses have been examined.
Statement of accused persons :
22. Statement of accused Kunal @ Akhtar under section 313 Cr.P.C was recorded on 15.09.2023, wherein all the incriminating material on record was put to the accused. It was stated by the accused that he is innocent and was falsely implicated in the present case. Nothing was recovered from his possession. The complainant and other witnesses FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 11 of27 : 12 : had identified him at the instance of the IO. The alleged recovery was planted upon him. Police was chasing him in order to falsely implicate him in a case. He had hidden himself in a battery rickshaw which was parked outside the house of the complainant. The complainant saw him and in the meanwhile, police also arrived and he was falsely implicated in the present matter. He preferred not to lead any evidence in his defence and therefore, defence evidence was closed and the matter was fixed for final arguments.
Final Arguments:
23. I have heard the final arguments as advanced by ld. Addl. P.P. for the State and ld. legal aid counsel for the accused and have gone through the entire material available on record.
24. It is argued by Ld. Addl. PP for the State that the prosecution has proved its case beyond shadow of all reasonable doubts against the accused. The complainant/victim/PW-1 and his both sons/injured persons PW-2 Irfan and PW-3 Adil had correctly identified the accused before the Court. They had deposed in consonance with the case of State. PW-1 and PW-3 had correctly identified the knife as well as robbed currency notes before the Court. PW-2 had correctly identified the knife before the Court. The MLCs of injured persons Ex. PW4/A and Ex. PW5/A further corroborates their testimonies. The accused was apprehended at the spot. The knife as well as Rs. 200/- were recovered from his possession. He used knife, which was a deadly weapon, for the FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 12 of27 : 13 : purpose of committing the offence of robbery. Thus, it is stated by the Ld. Addl. PP for the State that accused be convicted for all the offences for which he has been charged.
25. Per contra, it is argued by Ld. Counsel for the accused that accused is innocent and had been falsely implicated in the present matter. Both PW-2 Irfan and PW-3 Adil had deposed that it was told by complainant/PW-1 to them that firstly accused had requested him to let him sit in the rickshaw for two minutes on the ground that the police was behind him. Further, despite availability, public persons were not joined in investigation nor any notice was given to them on account of their refusal to join investigation. Accused had worn mask and there was darkness at the spot. No injuries were received by the alleged injured persons. The knife and the currency notes were planted upon the accused. Thus, it is prayed that accused be acquitted from all the offences for which he had been charged.
Appreciation of law & evidence :
26. It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
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State v. Kunal @ Akhtar Page 13 of27
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27. The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. v. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami v. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
Legal Provisions :
28. Accused Kunal @ Akhtar has been charged for the offences punishable under section 394 IPC read with section 397 IPC; sections 25 and 27 Arms Act and in the alternative under section 411 IPC.
29. Section 394 IPC states that if any person in committing or in attempting to commit robbery, voluntarily causes hurt such person shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years, shall also be liable to fine.
30. Section 390 IPC defines robbery. It states that in all robbery FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 14 of27 : 15 : there is either theft or extortion. 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 wrongful restraint.
31. Robbery is a special and aggravated form of theft and the chief distinguishing element in robbery is the presence of imminent fear of violence. When robbery is sought to be established through theft, then before one may be convicted of robbery theft by him must be proved and established.
32. Section 397 IPC states that if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than 07 years.
33. Section 397 IPC fix a minimum term of imprisonment when the commission of robbery has been attended with certain aggravated circumstances viz. (1) the use of a deadly weapon or (2) causing of grievous hurt or (3) attempting to cause death or grievous hurt to any person. It does not make any act an offence and only provides minimum punishment for some offences under certain circumstances FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 15 of27 : 16 : and provides for enhancement of term of imprisonment in certain places.
34. Section 411 IPC states that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
35. Section 25 of Arms Act makes punishable possession of knife in contravention of notification issued by Delhi Government.
36. Section 27 of Arms Act makes punishable the usage of arms and ammunition in contravention of section 5 and section 7 of the Act.
Receipt of information of offence and registration of FIR :
37. The accused had admitted the registration of FIR Ex. PX-1 and recording of GD no. 9 A Ex. PX-4. Ex. PX-4, that is, GD no. 9 A was recorded at 04:23 am at PS Ranhola on 08.12.2021 to the effect that it was informed by the caller that a thief had been apprehended and had inflicted stab injuries at Vikrant Vihar, B-48, Mohan Garden, near Balaji Chowk. FIR was registered on the basis of statement of complainant/PW-1 Mehboob Khan on the basis of rukka sent at around 10:35 am.
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State v. Kunal @ Akhtar Page 16 of27
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Medical evidence:
38. It is the case of the prosecution that both PW-2 Irfan Khan and PW-3 Adil had sustained injuries from the knife, which was held by the accused, when they tried to apprehend the accused after the accused tried to flee from the spot on seeing PW-3 Adil and after robbing Rs. 200/- from PW-1 Mehboob Khan.
39. MLC Ex. PW4/A of PW-3 Adil Khan reflects that a clear lacerated wound was found present over distal phalynx of left hand fingers, that is, middle, ring and little fingers. Tenderness was present over left hand and wrist. The kind of weapon used was opined as sharp and nature of injuries was opined as simple by the examining doctor. PW-4 Dr. Himanshu Pandey had identified the signatures and handwriting of Dr. Akshay Bhardwaj, who had examined PW-3 Adil Khan vide the said MLC. PW-1, PW-2 and PW-3 had also categorically deposed that injury was caused on the hand of PW-3 Adil Khan in the scuffle which ensued when PW-1 alongwith PW-3 Adil Khan tried to apprehend the accused.
40. MLC of PW-2 Irfan Khan Ex. PW5/A reveals that he sustained superficial abrasion over right hand ring finger. PW-5 Dr. Manoj Bairwa had identified the signatures and handwriting of Dr. Sangeeta on the said MLC. PW-1, PW-2 and PW-3 had also categorically deposed that injury was caused on the finger/hand of PW-2 Irfan Khan FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 17 of27 : 18 : when he tried to apprehend the accused.
41. Both these MLCs Ex. PW4/A and Ex. PW5/A were prepared at DDU hospital on 08.12.2021. MLC Ex. PW4/A was prepared at 04:53 am and MLC Ex. PW5/A was prepared at 4:54 am.
Ocular evidence :
42. Ocular evidence is considered as the best form of evidence in a criminal trial, given that it is duly corroborated by other evidences and there is no reason to doubt it. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, in as much as, he sustains injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other person.
43. In the case of Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259], it was held by the Hon'ble Supreme Court of India as under:
'Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built−in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness."
44. Further, in the case reported as Jarnail Singh & others v. State FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 18 of27 : 19 : of Punjab, (2009) 9 SCC 719, also it was held by the Hon'ble Supreme Court of India that testimony of an injured witness will have a special evidentiary status. It was held as under :
'.....the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.'
45. PW-1 Mehboob Khan is the victim/complainant and his both sons PW-2 Irfan Khan and PW-3 Adil Khan are the injured persons. As per the case of prosecution, accused had robbed Rs. 200/- from PW-1 and had forced him to open the gate of his house under threat of knife and when PW-1 opened the gate and accused found PW-3 standing inside the house, he tried to escape however, PW-1 tried to stop him and thereafter in the scuffle that ensued to apprehend the accused in which the accused even tried to inflict injury upon PW-1, PW-2 and PW-3 sustained injuries on the fingers of their hands.
46. PW-1, PW-2 and PW-3 are the public witnesses cited by the prosecution and they all have deposed in consonance with each other and in consonance with the final report of the State. They had identified the accused before the Court as the person who had robbed Rs. 200/- from PW-1 after showing knife to him and had even forced FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 19 of27 : 20 : PW-1 to open the gate of his house under threat of knife.
47. PW-3 Adil had deposed that he came down post hearing the voices of his parents and PW-1 had also deposed that the moment, he opened the door PW-3 Adil was standing and on seeing PW-3, accused tried to run away. PW-1 apprehended the accused. PW-3 had also deposed that his father held the accused and in the meanwhile, he also held the accused. The accused was having knife in his hand and he inflicted injuries on the fingers of his both hands with the said knife. After he had received injuries, his brother PW-2 Irfan Khan also reached there on hearing the voices and when his brother tried to intervene, he also sustained injury on his ring finger of his right hand with knife. PW-3 thereafter managed to take the knife from the accused.
48. PW-2 Irfan Khan had also deposed that when he came down, he found that the gate of his house was open and saw that his father/PW-1 and his brother /PW-3 Adil Khan had apprehended the accused and accused was having knife in his hand. His brother had sustained injuries on three fingers of one hand and one finger of another hand due to the knife which was held by the accused and when he tried to intervene, he also sustained injury on his right hand ring finger. Thereafter, his brother/PW-3 Adil Khan snatched knife from the hand of the accused.
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49. Both PW-2 and PW-3 further deposed that accused tried to stab their father/PW-1 but they saved their father. PW-1, PW-2 and PW-3 had also correctly identified the seized knife Ex. P-1, which was seized from the accused. PW-1 and PW-3 had also identified two currency notes of the denomination of Rs. 100/-each which were robbed from PW-1 by the accused and were recovered from the cursory search of the accused.
50. It is argued by Ld. Counsel for the accused that both PW-2 and PW-3 have admitted in their deposition that accused had requested PW- 1 to allow him to sit in the battery rickshaw on the ground that police officials were behind him/searching for him. The accused was falsely implicated by the police officials in the present case in connivance with PW-1, PW-2 and PW-3. The accused in his statement recorded under section 313 Cr.P.C had stated that police was chasing him in order to falsely implicate him in a criminal case and he had hidden himself in the battery rickshaw which was parked outside the house of the complainant and thereafter he had been falsely implicated in the present case. Thus, the accused in his statement recorded under section 313 Cr.P.C had stated that he was present at the spot.
51. In the case titled as Reena Hazarika v. State of Assam, 2019(1) JCC 1 (SC), the Hon'ble Supreme Court of India has held that, 'Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 21 of27 : 22 : statutory right as a constitutional right to a fair trial under Article 21 of the Constitution.
If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same'.
52. Section 313 (4) Cr.P.C states that the answers given by the accused may be taken into consideration in the trial. The Hon'ble Supreme Court of India in the case of Rafiq Ahmad @ Rafiq v. State of Uttar Pradesh AIR 2011 SC 3114 had held as under:
"It is true that the statement under Section 313 Cr.P.C cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the Court to examine, particularly when the prosecution has otherwise been able to establish the chain of evidence..."
53. Thus, the statement of accused recorded under Section 313 Cr.P.C is not evidence on oath nor can the same be a sole basis of conviction, however, it is relevant and shows the Court the stand of the accused. As the accused had stated that he had hidden himself in the battery rickshaw of PW-1, therefore, he had admitted his presence at the spot and his apprehension from the spot.
54. Even if it is presumed for the sake of arguments that police officials were searching for the accused and the accused in order to hide sat in the battery rickshaw of PW-1, however still the injuries received by PW-2 and PW-3 on their hands remained unexplained by the defence. PW-1, PW-2 and PW-3 are public witnesses and nothing has come in their cross-examination to indicate that they and the accused were known to each other prior to the incident in question or FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 22 of27 : 23 : there was any previous enmity between them. Thus, no motive can be attributed to them to falsely implicate and wrongly identify the accused before the Court. Further, as per the MLCs Ex. PW4/A and Ex. PW5/A, both PW-3 Adil and PW-2 Irfan had sustained injuries. In the MLC of PW-3 Adil, it is even opined by the examining doctor that the weapon used for causing the injury was sharp in nature. Knife, Ex.P-1, taken from the possession of the accused by PW-3 Adil Khan was seized vide seizure memo Ex. PW1/B. PW-1, PW-2 and PW-3 have identified the knife Ex. P-1 and PW-1 had identified his signatures on the seizure memo of the knife.
55. It is also argued by the Ld. Counsel for the accused that though it had come in the deposition of witnesses that public persons of the locality had gathered at the spot, however still no independent public person was made witness in the present matter by the IO nor any notice was given to them for refusal to join investigation. PW1, PW2 and PW3 are the complainant and injured persons/victims of the present case. Though they are the only public witnesses cited however, it is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi)133. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 23 of27 : 24 : cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. In view of the same, the absence of any other witness of the locality besides PW-1, PW-2 and PW-3 does not cast dent on the otherwise credible case of prosecution.
56. Furthermore, though there are discrepancies in the testimonies of the prosecution witnesses qua the presence of mother of PW-2 and PW- 3 outside the house/inside the house when initial robbery took place and that PW-1 had deposed that the incident took place at 02:30 am instead of 03:30 am as deposed by the other prosecution witnesses and as per the case of State ; however, these discrepancies are minor in nature and do not strike at the root of the case of the prosecution.
57. PW-1, PW-2 and PW-3 were subjected to detail cross-
examination by the Ld. defence counsel and their testimonies had remained unshaken and had withstood the test of cross-examination. Their depositions are coherent and reliable and they corroborate each other in all material particulars and are further corroborated by the medical evidence on record and the defence has not been able to impeach their testimonies even by way of lengthy cross-examination. Nothing has come in their cross-examination which can assail their credibility before the Court.
58. It has been held by the Hon'ble Apex Court in catena of FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 24 of27 : 25 : judgments that conviction can be based on the testimony of solitary witness if the testimony is of sterling quality and the witness is competent, honest and trustful. It is the quality of evidence and not the quantity which matters.
59. All three public witnesses , that is, PW-1, PW-2 and PW-3 have turned out to be witnesses of sterling quality. They have further duly corroborated each other and their testimonies are further corroborated by the medical examinations of PW-2 and PW-3.
Final analysis :
60. Keeping in view the above discussions and findings, it is held that the prosecution has been able to prove beyond shadow of all reasonable doubts that accused Kunal @ Akhtar on 08.12.2021 at about 03:30 am committed robbery of Rs. 200/- from the person of complainant/PW-1 Mehboob Khan after showing him knife, that the said robbery was committed by him with the aid of knife, which is a deadly weapon, that thereafter while trying to escape from the spot and in the scuffle accused caused simple injuries with knife on the fingers of both hands of PW-3 Adil and on the finger of one hand of PW-2 Irfan Khan, that he was apprehended at the spot and from his possession Rs. 200/- were recovered, that knife which was used by accused in the commission of offence was snatched from him by PW-3 Adil Khan. Thus, accused committed robbery of Rs. 200/- from the person of PW-1, which is defined under section 390 IPC and also while FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 25 of27 : 26 : committing robbery voluntarily caused hurt to PW-2 and PW-3 and therefore had committed the offence punishable under section 394 IPC. He also while committing robbery had used deadly weapon, that is, knife and therefore, section 397 IPC also gets attracted qua him.
61. Ld. Addl. PP for the State during course of arguments had filed the copy of notification issued by Delhi Administration dated 12.08.1964 as per which acquisition, possession and carrying of the sharp edged weapons with blade more than 06 inches long or 2 inches wide in public places had been regulated under section 4 of the Arms Act. As per the sketch Ex. PW1/C of seized knife Ex. P-1, the length of the blade was 19 cm and the width of the blade ranged from 2 cm to 4.5 cm. Thus the acquisition, possession and carrying of the knife Ex. P-1 was in contravention of section 4 of the Arms Act and punishable under section 25 (1B)(b) of the Act. Therefore, accused had also committed offence punishable under section 25(1B)(b) Arms Act. However, section 27 Arms Act will not be attracted in the present matter as the same makes punishable usage of arms and ammunition in contravention of section 5 and section 7 of the Arms Act whereas in the present case there is only contravention of section 4 of the Arms Act.
Conclusion/Findings :
62. Accordingly, accused Kunal @ Akhtar is held guilty and convicted for the commission of offences punishable under section 394 IPC read with section 397 IPC and section 25 Arms Act.
FIR No: 862/2021 PS Ranhola State v. Kunal @ Akhtar Page 26 of27 : 27 :
63. Let he be heard separately on the point of sentence.
64. Copy of the judgment be provided to the convict free of cost.
ANNOUNCED IN THE OPEN (NEHA PALIWAL SHARMA) COURT ON: 09th October, 2023 ASJ-05 (West), THC, Delhi.
It is certified that this Judgment contains 27 pages and each page bears my signatures.
(NEHA PALIWAL SHARMA)
ASJ-05 (West), THC, Delhi
09.10.2023
FIR No: 862/2021 PS Ranhola
State v. Kunal @ Akhtar Page 27 of27