Delhi District Court
State vs Ashwani Kumar Etc on 16 May, 2025
IN THE COURT OF MS. SHIVALI SHARMA, ADDITIONAL SESSIONS
JUDGE-03: WEST DISTRICT, THC, DELHI.
CNR No. DLWT01-09987-2017
SC No. 57167-2016
State Vs. Ashwani Kumar @ Kanu & Ors.
SHIVALI
FIR No. 573-2014 SHARMA
U/s. 394/397/411 IPC Digitally signed by
PS: Paschim Vihar East SHIVALI SHARMA
Date: 2025.05.16
15:35:34 +0530
JUDGMENT
1. Sr. No. of the case : 57167-2016
2. Date of Committal to Sessions : 16.01.2015
3. Name of the complainant : Jai Parkash S/o Sh. Jai Narain
R/o C/40-41, J. J. Colony,
Khyala, New Delhi.
4. Date of Commission of Offence : 05.08.2014
5. Name and Parentage of Accused : (1) Ashwani Kumar @ Kannu
S/o Sh. Budh Prakash R/o H.
No.H-I/48, Kunwar Singh
Nagar, Ranhola, Nangloi, New
Delhi.
(2) Manoj @ Pramod S/o Sh.
Bhoop Singh R/o H.
No.H3/18, Kunwar Singh
Nagar, Ranhola, Nangloi, New
Delhi.
(3) Sandeep @ Sunny S/o Sh.
Ramesh Chander R/o H.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 1/46
No.H-I/32, Kunwar Singh
Nagar, Ranhola, Nangloi,
New Delhi.
(4) Rakesh @ Patel S/o Sh.
Chander Bhan R/o H. No.H-
I/49, Kunwar Singh Nagar,
Ranhola, Nangloi, New Delhi.
6. Offence complained of : u/s 394/397/170/34 IPC and
Section 25 of Arms Act.
7. Offence charged : Accused Ashwani Kumar
charged under Section 411 IPC.
Accused Manoj @ Pramod,
Sandeep @ Sunny, Rakesh @
Patel charged under Section
394/403/170/34 IPC. Accused
Manoj @ Pramod and Rakesh @
Patel charged under Section 25
Arms Act and 411 IPC. Accused
Rakesh @ Patel charged under
Section 397 IPC read with
Section 25/27 Arms Act.
8.Plea of Guilt : Not guilty.
9. Final Order : Accused Manoj @ Parmod,
Sandeep @ Sunny and Rakesh
@ Patel are convicted for the
offences under Section 394/34
IPC.
Accused Rakesh @ Patel is also
convicted for the offence under
Section 397 IPC read with
Section 27 Arms Act.
Accused Rakesh @ Patel and
Sandeep @ Sunny are also
convicted for offences under
Section 170/34 IPC.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 2/46
Accused Rakesh @ Patel is also
convicted for the offence under
section 411 IPC for possession
of robbed gold chain
belonging to the complainant.
Accused Manoj @ parmod and
Rakesh @ Patel are also
convicted for the offence under
Section 25 Arms Act for
possession of prohibited arms
without license.
Accused Manoj@ Parmod,
Sandeep @ Sunny and Rakesh
@ Patel are acquitted for the
offence under Section 403/34
IPC.
Accused Sandeep @ Sunny is
acquitted for offence under
Section 170/34 IPC.
Accused Manoj @ Parmod is
acquitted for the offence under
Section 411 IPC.
Accused Ashwani is acquitted
for offence under Section 411
IPC as charged against him.
10.Date on which Order Reserved : 02.05.2025
11. Date on which Order Announced : 16.05.2025
BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution is that on 05.08.2014, at about 12:15 AM at Bhairon Enclave Road, in front of Apartment GH-13, Paschim Vihar, accused Manoj @ Pramod, Sandeep @ Sunny and Rakesh @ Patel in furtherance of their common intention caused hurt to the complainant Jai Prakash in committing robbery. During the incident, SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 3/46 they impersonated themselves as police officials. They also misappropriated the mobile phone make Samsung GT-S-7262 belonging to one Sher Khan. Accused Rakesh @ Patel had used deadly weapon i.e. a knife at the time of commission of offence. During investigation, the robbed mobile phone belonging to the complainant was found from the possession of accused Ashwani Kumar @ Kannu. SIM card bearing no. 9717482133 belonging to the complainant was found from the possession of accused Manoj @ Pramod and gold chain belonging to the complainant was found from the possession of accused Rakesh @ Patel. At the time of apprehension, accused Rakesh @ Patel was found in possession of one knife with length of blade as 14 cm and accused Manoj was found in possession of one button operated knife. All the accused persons were apprehended and chargesheeted for offences u/s 394/397/411/170/34 IPC and 25 Arms Act.
CHARGE:
2. Detailed arguments were heard on charge from Ld. Counsel for accused persons and Ld. Additional. PP for the State. Vide order dated 01.04.2015, charges were framed u/s 394/403/170/34 IPC against accused Manoj @ Pramod, Sandeep @ Sunny and Rakesh @ Patel. In addition, accused Manoj @ Pramod was also charged for offences u/s 411 IPC and Section 25 Arms Act. Accused Rakesh @ Patel was also charged for offence u/s 397 r/w 27 Arms Act, u/s 411 IPC and 25 Arms Act. Accsued Ashwani Kumar @ Kannu was charged for offence u/s 411 IPC. All the accused persons pleaded not SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 4/46 guilty to the charges and claimed trial.
PROSECUTION EVIDENCE:
3. The prosecution led evidence and examined 19 witnesses in all to bring home the guilt against the accused.
4. Inadvertently, two witnesses have been examined as PW-1. For the sake of convenience, statement of witness Jai Prakash shall be read as that of PW-1A.
5. PW-1 is Sher Khan who deposed that he had one Samsung Duos GT 5762 mobile phone which he had lost on 20.07.2014. In this regard, he lodged a complaint at PP Tilak Vihar which is Mark A. He also handed over bill pertaining to the purchase of his mobile phone to police officials, copy of which is Ex. PW-1/A. Later on, he came to know about recovery of his mobile phone through a telephonic call from PS Mianwali Nagar. He identified his mobile phone which is Ex. P-1.
6. PW-1A Jai Prakash is the victim of the present case. He deposed that on 05.08.2014, he was going towards his house from Palam Vihar, Gurgaon. At about 12-12:15 AM when he reached at Janakpuri, Outer Ring Road ahead of Janakpuri Bus Stand near Church, a person in khakhi uniform gave him a signal to stop his car having registration no. DL 4C AM 5429. The window of the driver side of the car was already open. He immediately stopped the vehicle on the signal of SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 5/46 that person. Said person opened the door of the driver side and showed him a knife and directed him to sit on the back seat of the car.
In the meanwhile, two other persons also reached there, out of whom, one was wearing nicker and tshirt while the other person was wearing khakhi uniform. The person who had shown him the knife sat on the driver seat and the other person in khakhi uniform sat on the seat next to the driver seat. He along with the third person in nicker tshirt sat on the back seat. The person who was sitting with him on the back seat removed his purse from his trousers in the running car. His silver ring and watch were also snatched. When he reached at Meera Bagh, his gold chain was also removed. He requested the said persons to let him go but they did not listen to him and started abusing him. When he became agitated, the culprits started quarreling with him. The person who was in nicker was continuously putting knife on his neck and the person who was driving the car hit his hand on the knife due to which PW-1A sustained injuries on his neck. The culprits stopped his car at Behra Enclave and fled away from there with the robbed articles. Blood in huge quantities started oozing out from his neck. He put his hand on his injuries to stop bleeding and somehow reached his house while driving the car. His family members called the PCR. Before the PCR reached his house, he was rushed to GGS Hospital by his brother Pramod Kumar. PCR officials and local police also reached the hospital.
7. He was medically examined and his injury was stitched. He went to Behra Enclave with the IO and pointed towards the place where the SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 6/46 culprits got down from the car. Incharge of Police Post Khyala also reached there and on inspecting the area found that the same was falling within the jurisdiction of PS Mianwali Nagar. Accordingly, PS Mianwali Nagar was also informed and police officials from there reached at Behra Enclave. Thereafter, he was asked by the police officials to take them to the place where the incident started i.e. the place where his car was got stopped by the accused persons. They went to that spot and thereafter, returned to PS Mianwali Nagar. At PS, he narrated the incident to the police which was reduced to writing vide his complaint Ex. PW-1/A. Thereafter, he went to his house.
8. At about 07:30-08:00 AM, he was called at PS Mianwali Nagar by concerned ACP. At the time of leaving him at Behra Enclave, the culprits had left a mobile phone make Samsung color white in his car. His blood stained clothes were seized by the police vide memo Ex. PW-1/B. The blood was lifted from his car and seized vide memo Ex. PW-1/C. Photographs of his car were also taken from different angles. The recovered Samsung mobile phone left by the culprits in his car was seized vide memo Ex. PW-1/D.
9. After about 18-19 days of the incident, he was intimated by the police about the recovery of his mobile phone make Nokia X-2 and his chain. He received a letter for TIP proceedings of the accused from whom his mobile phone was recovered. He went to Tihar Jail for TIP proceedings but could not identify any of the persons shown to him.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 7/46After sometime, he again received a letter for TIP of two other persons. He went to Tihar Jail but came to know that they had already refused to join the TIP proceedings. He again received another letter for TIP proceedings of another culprit but the said person also refused to participate in TIP proceedings. Once he came to Court where he identified all the accused persons.
10. Witness identified accused Manoj as the culprit who sat with him in the car on the backside and continuously put knife on his neck. He also identified accused Rakesh @ Patel as the culprit who had opened the front gate of the driver seat and shown him knife. He also identified accused Sandeep as the third culprit who was sitting next to the driver seat. He also stated that he had identified his chain vide TIP proceedings Mark A and later on got the same released on superdari.
11.He identified the chain which is Ex. P-2. He could not identify the mobile phone make Samsung which was recovered from his car. He identified his blood stained clothes which are Ex. P-3 (colly). He also identified blood gauze which is Ex. P-4. He could not identify one of the knives shown to him and kept in parcel no. 6. He identified other knife kept in parcel no. 5 which is Ex. P-5. He was also shown two pairs of khakhi shirt and pant but he could not identify the same. Blood sample in a plastic container is Ex. P-6. He did not identify the recovered SIM of airtel and stated that it is not the same as belonging to him as he was using the bigger Sim and smaller SIM could not be inserted in his phone.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 8/4612. He was specifically suggested about the identification of knife taken out from parcel no. 6 by Ld. Additional PP for the State, but after looking at the same, he stated that it was not the knife which was used by the culprits. He also failed to identify the recovered SIM and reiterated that he was using a bigger Sim.
13. PW-2 Pramod Kumar is the brother of victim Jai Prakash/PW-1A.
He deposed that in the year 2014, on the day of incident, at about 12:30-01:00 AM, his brother Jai Prakash came to the house and his shirt was drenched in blood. He saw that there were injury marks on his chest. His brother narrated the incident to them. He made a PCR call at 100 number and took his brother to GGS hospital. Police officials from PS Khyala also reached there. His brother was taken to the place where he was left by the culprits. Police officials from PS Mianwali Nagar also reached there. Thereafter, police officials from PS Khyala left the spot and they were taken to PS Mianwali Nagar. The blood stained shirt of his brother was seized vide memo Ex. PW-1/B and a mobile phone left by the culprits in the car of his brother was seized vide memo Ex. PW-1/D. On the next day, blood samples were also taken from the car and seized vide memo Ex. PW-1/E. Photographs of the spot were got clicked.
14. He identified the clothes of his brother which are Ex. P-3 (colly). He also identified Samsung Mobile phone recovered from the car which is Ex. P-7. He identified car of his brother Jai Prakash bearing no. DL 4C AM 5429 which is Ex. P-8.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 9/4615. PW-3 HC Mahavir Singh and PW-7 Ct. Sanjay Kumar are witnesses to the apprehension of accused Ashwani on 13.08.2014 by the police officials of PS Crime Branch RK Puram. Their testimonies are in consonance with each other. They deposed that on 13.08.2014, they along with SI Narender, HC Kuldeep and Ct. Dharmender were on patrolling duty at Kunwar Singh Nagar, Nangloi, Ranhola. At about 07:30 AM, a secret information was received through an informer to the effect that an accused who was wanted in the present case was standing outside his house no. H-1/48, Kanwar Singh Nagar, Nangloi, Delhi and was having the robbed mobile phone. Information was given to the senior officials by SI Narender and a raiding team was constituted consisting of above named police officials. Public persons were requested to join the raiding team but none agreed. Thereafter, at the instance of the secret informer, accused Ashwani was apprehended and on his search, one mobile phone make Nokia X-2 color black and cherry dual sim was recovered from his right side pocket of wearing pant. Through the IMEI number of the said mobile phone, they came to know that it was the robbed property of the present case. The mobile phone was taken into possession u/s 102 CrPC vide seizure memo Ex. PW-3/A. Accused Ashwani was interrogated and he confessed about his involvement in the present case vide his disclosure statement Ex. PW-3/B. The mobile phone was having one sim of idea company. Accused Ashwani was arrested and personally searched u/s 41.1 CrPC vide memos Ex. PW-3/C and Ex. PW-3/D. The recovered mobile phone was deposited with the malkhana. Intimation regarding arrest of accused Ashwani was given SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 10/46 to the IO of the present case. PW-3 prepared a kalandra u/s 41.1 (a) and (d) CrPC/102 CrPC which is Ex. PW-3/E. Accused was produced in the court on the same day and was arrested by IO of the present case.
16. PW-3 and PW-7 identified accused Ashwani Kumar and the mobile phone make Nokia X-2 recovered from him which is Ex. P-9.
17. PW-4 Shishir Malhotra is the Nodal Officer from Aircel Ltd who deposed that on 05.08.2014, on request of IO, he had mailed the subscriber details regarding mobile number 7530914402 vide document Mark A. He had also mailed him for details of the said mobile number vide document Mark A1. The said record is currently not available in the system and cannot be retrieved as per license agreement Mark A3.
18. PW-5 Chander Shekhar is the Nodal Officer from Bharti Airtel Ltd.
He produced the CAF record of mobile number 9717482133 allotted in the name of Jai Prakash along with copy of his voter ID card which is Ex. PW-5/A. He proved the CDR of the said mobile numbers from 01.08.2014 to 30.08.2014 which is Ex. PW-5/B and his certificate u/s 5B Indian Evidence Act as Ex. PW-5/C.
19. He also produced the CAF record of mobile number 9818737148 allotted in the name of Ruksana along with her ID proof which are Ex. PW-5/D. The CDR of the said mobile number and IMEI number SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 11/46 352158060554400 from July to August, 2014 was sent to IO through e-mail and is Mark X.
20. PW-6 HC Surinder is the Constable who had accompanied the IO to Guru Gobind Hospital on 05.08.2014 on receipt of DD No. 6A. He deposed that injured Jai Prakash met them at the hospital and narrated the incident which was recorded by the IO. IO/ASI Krishan Kumar prepared the rukka and handed over the same to him for registration of FIR. He went to PS and got the FIR registered. After registration of FIR, further investigation was marked to SI Umed Singh and DO handed over copy of FIR and original rukka to him for onward transmission to SI Umed Singh. Thereafter, he along with SI Umed Singh went to the hospital where ASI Krishan Kumar handed over clothes of the injured to SI Umed Singh. The Alto car of the injured was also found at the hospital. From inside the car, blood sample of injured was lifted and one mobile phone was also seized by IO/SI Umed Singh. IO recorded his statement. He identified the mobile phone make Samsung Duos as the phone recovered from the car. The same is Ex. P-7.
21. PW-8 Dr. A.K. Kedia is the doctor who had medically examined injured Jai Prakash on 05.08.2014 at GGS Government Hospital, Raghubir Nagar vide MLC No. 36621.He proved the MLC as Ex. PW-8/A and stated that the injured had sustained simple injury with some sharp object.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 12/4622. PW-9 HC Rajesh Kumar is the MHC(M) PS Mianwali Nagar. He has been inadvertently examined twice as PW-9 and PW-16. He deposed about the deposit of the case properties pertaining to the present case in the malkhana by the IO vide entries in register no. 19 which are Ex. PW-9/A to Ex. PW-9/D. He also proved the RC no. 112/21/14 dated 27.10.2014 vide which 9 exhibits were sent to FSL through Ct. Bijender as Ex. PW-9/E. He also stated that pullanda of seized gold chain was also sent to the court for TIP proceedings on request of SI Umed Singh but stated that no exhibits were sent for seeking subsequent opinion.
23. He was cross-examined on behalf of the State and in his cross-
examination, he admitted that on 18.10.2014, the sealed pullanda of weapon of offence was sent to DDU Hospital through Ct. Sunil for seeking subsequent opinion regarding consistency of weapon of offence with the injury sustained by the injured.
24. PW-10 ASI Krishan Kumar is the first IO of the case who had visited the hospital on 05.08.2014 on receipt of DD No. 6A. His deposition is in consonance with that of PW-6 HC Surinder and is thus, not repeated herein for the sake of brevity. He proved the rukka prepared by him as Ex. PW-10/B.
25. PW-11 HC Prakash is a witness to the apprehension and arrest of accused Sandeep @ Sunny and Manoj @ Pramod. He deposed that on 25.08.2014, he along with HC Pawan had joined the investigation SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 13/46 with IO/SI Umed Singh. At about 07:30 PM, when they were present at Kunwar Singh Nagar, a secret information was received regarding the culprits of the present case. SI Umed Singh constituted a raiding party consisting of them. He also asked 4-5 public persons to join the investigation but none agreed and left without disclosing their identities. Without wasting time, they went near Ranhola drain near the redi of meat and chicken and took their positions. At about 08:00 PM, two persons came at the redi and started talking to each other. At the instance of secret informer, he apprehended one of them whose name was found to be Sandeep @ Sunny and HC Pawan apprehended the other whose name was disclosed as Manoj @ Pramod. Upon search of accused Manoj @ Pawan, one button actuated knife and one sim card of airtel company i.e. the stolen property of the present case were recovered. SI Umed prepared sketch of the knife and sealed the same with the seal of US and seized it. The SIM card was also kept in a plastic box sealed and seized. Thereafter, both the accused persons led them to their respective houses at Kunwar Singh Nagar. Accused Manoj got recovered one shirt and pant from his house number H-3/18 which were also sealed and seized by the IO. Accused Sandeep also got recovered one khakhi colored shirt and pant from his house number 1/32 which was also sealed and seized by the IO.
26. He identified accused Sandeep @ Sunny and Manoj @ Pramod. He also identified the recovered Sim card of airtel company which is Ex. P-11A. He identified the button actuated knife recovered from SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 14/46 accused Manoj which is Ex. P-11B. He also identified one khakhi colored shirt and pant recovered from accused Manoj and one khakhi colored shirt and pant recovered from accused Sandeep which are Ex. P-11C and Ex. P-11D respectively.
27. PW-12 ASI Kailash Chand is a formal witness being the Duty Officer who proved the registration of present FIR as Ex. PW-12/A and his certificate u/s 65B of Indian Evidence Act as Ex. PW-12/B. He deposed that after registration of FIR, copy of FIR and original rukka were handed over to HC Surinder after making endorsement by him which is Ex. PW-12/C.
28. PW-13 HC Sandeep is a witness to the apprehension and arrest of accused Rakesh @ Patel. He deposed that on 16.09.2014, he had joined the investigation of the present case with IO/SI Umed Singh, Ct. Pradeep, Ct.Jogender and Ct. Rajesh. On that day, they went in search of accused Rakesh @ Patel at Kunwar Singh Nagar and thereafter, to Jwalapuri where one secret informer met them and informed that accused Rakesh @ Patel will come from the side of Railway Line near Udyog Nagar underpass and can be apprehended if raided.
29. SI Umed asked 4-5 persons to join the raiding party but none agreed and left without disclosing their details. They took their positions near the spot at about 07:30 PM. Accused Rakesh @ Patel came from the side of Mangol Puri Railway Station and was apprehended at the instance of secret informer. He was found wearing one gold chain and SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 15/46 he disclosed the same to be robbed property of the present case. The chain was kept in a plastic box sealed with the seal of US and seized vide memo Ex. PW-13/A. Accused Rakesh was arrested and personally searched vide memos Ex. PW-13/B and Ex. PW-13/C respectively. His disclosure statement Ex. PW-13/D was also recorded.
30. Thereafter, accused Rakesh @ Patel led them to the bushes near Nihal Vihar drain and got recovered one knife which was used by him in the commission of the offence. IO/SI Umed Singh prepared the sketch of the knife which is Ex. PW-13/E, sealed it with the seal of US and seized it vide memo Ex. PW-13/F.
31. He identified accused Rakesh @ Patel and the knife recovered at his instance which is Ex. P-X.
32. PW-14 Dr. B.N. Mishra deposed that on 18.10.2014, he was working in the Department of Forensic Medicine, DDU Hospital when he received an application moved by SI Umed Singh along with sealed parcels stated to contain the weapon of offence and clothes of injured and his MLC. After examining the exhibits and MLC, he was of the consistent view that the injuries noted in the MLC as well as cuts on the clothes could have been inflicted by the weapon of offence produced. He prepared the sketch of the knife (Ex. PW-14/A)and gave his opinion vide report Ex. PW-14/B. He resealed the parcels with the seal of DFMT DDU Hospital and handed over the sealed SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 16/46 parcels along with the sample seal and his report and MLC to the police.
33. PW-15 HC Sunil Kumar deposed that on 28.09.2014, he has gone to the SGM Hospital along with victim Jai Prakash on the directions of IO/SI Umed Singh where doctor took blood sample of the injured and handed over the sealed pullanda of blood sample with sample seal to him. He handed over the same to SI Umed Singh at PS and it was seized vide memo Ex. PW-15/A.
34. He further deposed that on 18.10.2014, he had taken sealed parcels containing blood stained clothes of injured Jai Prakash and weapon of offence i.e. a knife from MHC(M) on the directions of IO vide RC No. 107/21/14 and took them to Dr. B.N. Mishra, Department of Forensic Medicine, DDU Hospital for subsequent opinion. After obtaining subsequent opinion from Dr. B.N. Mishra, he brought back the subsequent opinion, resealed the parcels and sample seal and deposited the same with the MHC(M).
35. PW- 17 SI Dheeraj Singh is a witness from PS Crime Branch Pushp Vihar who produced the summoned record i.e. register no. 19 containing details of DD No. 8 at serial no. 2158 which was lodged by HC Mahavir Singh on 18.08.2014, copy of the same is Ex. PW-17/A.
36. PW-18 Inspector Umed Singh is the IO of the present case. He deposed that on 05.08.2014, investigation of the present case was SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 17/46 marked to him and he was handed over copy of FIR and original rukka by HC Surinder. Thereafter, he went to GGSG Hospital along with HC Surinder where ASI Krishan met him and handed over MLC of injured Jai Prakash. He also met complainant/injured Jai Prakash who handed over one mobile phone make Samsung to him stating that the same belongs to the assailants and they had left the same in his car while escaping after the incident. There was no SIM in the mobile phone. He kept the mobile in a cloth pullanda, sealed the same with the seal of US and seized it vide memo Ex. PW-1/D. Injured also pointed towards his Alto car, the same was checked and blood was found in the car. Blood was lifted from the car with the help of cotton and seized vide memo Ex. PW-1/C. Complainant handed over his blood stained shirt and pant to him and changed to the clothes brought by his brother. The clothes of the complainant were seized vide memo Ex. PW-1/D. Thereafter, complainant led them to the place where he was left by the assailants after the incident near Guru Harkrishan Nagar, Paschim Vihar and at his instance, site plan (Ex. PW-18/A) was prepared by him. He tried to search for the accused persons but in vain. He put the mobile phone make Samsung handed over to him by the complainant on tracking through its IMEI number and found through CDRs that it belonged to one Sher Khan. He made enquiry from Sher Khan and came to know that Sher Khan has lost his aforesaid mobile phone and matter was reported at police post Tilak Vihar. Sher Khan also handed over copy of the report and bills of mobile phone to him.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 18/4637. He further deposed that on 13.08.2014 vide DD No. 32B, an information was received at PS regarding arrest of accused Ashwani Kumar @ Kannu by Crime branch and about his disclosure of involvement in the present case. He went to the court of Ld. MM where accused Ashwani was produced in muffled face and after taking permission from the court, he formally arrested accused Ashwani Kumar vide memo Ex. PW-3/F and recorded his disclosure statement Ex. PW-18/B. Crime Branch had also recovered one mobile phone Nokia X2 from Accused Ashwani Kumar. He got TIP of accused Ashwani Kumar conducted but complainant Jai Prakash did not identify him as the assailant. He obtained one day PC remand of Ashwani Kumar and tried to search the other accused persons but in vain.
38. He further deposed about apprehension of accused Manoj @ Pramod and Sandeep @ Sunny on 25.08.2014, their arrest and recoveries made from them in consonance with testimony of PW-11/HC Prakash. He prepared the sketch of the button actuated knife recovered from accused Manoj @ Pramod which is Ex. PW-18/C and seized it vide memo Ex. PW-18/D. The recovered Sim card of Airtel recovered from purse of accused Manoj @ Pramod was checked by putting it in a mobile phone and was found to be of mobile number 9717482133 which belonged to the complainant and was in the robbed mobile phone of the complainant at the time of the incident. The SIM card was seized vide memo Ex. PW-18/E. He arrested and personally searched accused Manoj @ Pramod and Sandeep @ SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 19/46 Sunny vide memos Ex. PW-18/F to Ex. PW-18/I and recorded their disclosure statements Ex. PW-18/J and Ex. PW-18/K. The khakhi uniform pant and shirt recovered from the house of accused Manoj @ Pramod were seized vide memo Ex. PW-18/L and the khakhi uniform pant and shirt recovered from accused Sandeep @ Sunny were seized vide memo Ex. PW-18/M. Both the accused were kept in muffled faces. Effort was made for tracing accused Rakesh @ Patel but in vain. Both the accused persons refused to participate in TIP proceedings. On 03.09.2014, one day PC remand of accused Manoj @ Pramod was taken for search of accused Rakesh @ Patel but in vain.
39. He further deposed about the apprehension of accused Rakesh @ Patel on 16.09.2014, his arrest and recovery made from him in consonance with the testimony of HC Sandeep/PW-13. He also deposed that accused Rakesh @ Patel also refused to join the TIP proceedings.
40. He further deposed that during investigation, he got conducted the TIP of recovered gold chain which was correctly identified by the complainant. On 28.09.2014, complainant Jai Prakash was sent to SGM Hospital with PW-15 HC Sunil Kumar for taking his blood sample. The blood sample was seized vide memo Ex. PW-15/A. He also obtained subsequent opinion regarding weapon of offence, clothes of injured and injuries mentioned in the MLC of the complainant. He sent the exhibits to FSL for analysis and after completion of investigation, filed the chargesheet.
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 20/4641. He identified all the accused persons and was duly cross-examined on their behalf.
42. In addition to the above evidence, accused persons admitted u/s 294 CrPC their TIP proceedings as well as TIP of case property conducted by the then Ld. MM Swati Singh vide their statements dated 01.09.2022. They also admitted FSL report no. FSL 2014/D-7927 Bio No. 881/2014 dated 06.07.2015 prepared by Dr. Ruchi Sharma vide their statement dated 28.05.2024. Accordingly, the relevant witnesses to prove the said documents were dropped from the list of witnesses.
STATEMENT OF ACCUSED:
43. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to accused persons and their statements were recorded U/s. 313 CrPC on 20.11.2024 and 10.12.2024 (accused Ashwani). They denied all the incriminating evidence and asserted that they were innocent and falsely implicated in the present case.
44. Accused Sandeep @ Sunny stated that he was apprehended by the police officials from his uncle's house no. H-1/32, Kunwar Singh Nagar, Ranhola, Nangloi, Delhi. His signatures were taken on blank papers and semi blank performas by the IO which were later on converted into false disclosure statements, arrest memos and personal search memos.SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 21/46
45. Accused Rakesh @ Patel stated that no gold chain was recovered from him. He was falsely implicated by the IO and his signatures were taken on blank papers. No recovery of knife was made at his instance. He had no knowledge about mobile number 9818737148 belonging to Ruksana.
46. Accused Manoj @ Pramod stated that he was apprehended by the police officials from his uncle's house no. 66, double Storey, Tilak Nagar, Delhi. His signatures were taken on blank, semi-blank papers which were later on converted into false memos and disclosure statements.
47. Accused Ashwani admitted that mobile phone make Nokia X2 was recovered from his possession but he was not aware that it was a stolen or robbed mobile. He had purchased the said mobile from co-
accused Rakesh who was a resident of his colony for a sum of Rs. 300/-. He is a bonafide purchaser and had nothing to do with the reported offence. Victim did not identify him as one of the robbers.
DEFENCE EVIDENCE:
48. Accused persons did not lead any evidence in support of their defence.
49. Final arguments have been heard and record carefully perused.
JUDICIAL RESOLUTIONS:
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 22/4650. It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot derive the benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and the onus to prove the case against the accused beyond reasonable doubts never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
51. In the present case, accused persons namely Manoj @ Pramod, Rakesh @ Patel and Sandeep @ Sunny are charged with the offences u/s 394/403/170/34 IPC. In addition, accused Ashwani Kumar, Manoj @ Pramod and Rakesh @ Patel are also charged with offence u/s 411 IPC. Accused Manoj @ Pramod and Rakesh @ Patel are also charged with offence u/s 25 Arms Act. Accused Rakesh @ Patel is also charged for offence u/s 397 IPC r/w 27 Arms Act.
52. Section 394 IPC provides punishment for voluntarily causing hurt in committing or attempting to commit robbery.
53.The offence of robbery is defined u/s 390 IPC as per which any kind of theft is robbery if in order to committing of the said theft, or in committing the theft, or in carrying away or attempting to carrying away property obtained by theft, the offender for that end, voluntarily SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 23/46 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.
54. The offence of theft is defined u/s 378 IPC as per which whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
55. Thus, theft is the dishonest removal of movable property out of the possession of any person without the consent of that person. To bring home an offense u/s 378 IPC, the prosecution has to prove A) That there was a movable property.
B) That the said movable property was in possession of a person other than the accused.
C) That the accused took it out or moved it out of the possession of the said person.
D) That the accused did it dishonestly i.e. with intention to cause wrongful gain to himself or wrongful loss to another. E) That the accused took the movable property or moved it without the consent of the possessor of the same.
56. An analyis of Section 390 IPC would show that in order that theft may constitute robbery, prosecution has to establish that, A) in order to committing of theft; or B) in committing the theft; or SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 24/46 C) in carrying away or attempting to carry away property obtained by theft D) The offender for that end i.e. any of the ends contemplated by A to C. E) Voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
57. In other words, theft would be robbery, if for any of the ends mentioned in A to C above, the offender 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 instant wrongful restraint.
58. Section 397 IPC provides that if, at the time of committing robbery, 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 7 years.
59. Section 397 IPC does not make any act an offence. It only provides minimum punishment for some offences under certain circumstances i.e. when deadly weapon is used or grievous hurt is caused or attempt to cause death or grievous hurt is made. Section 34 or 149 IPC have no application to a case covered by Section 397 IPC. Section 397 IPC cannot be applied constructively and relates only to the offender who actually uses the weapon. Guilt of the accused u/s 397 IPC can be SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 25/46 attributed only to that offender who uses deadly weapons or causes grievous hurt to anyone during the course of commission of robbery as Section 397 IPC negates the use of principle of vicarious liability u/s 34 IPC.
60. Section 411 IPC provides punishment for dishonestly receiving or retaining any stolen property moving or having reason to believe the same to be a stolen property.
61. The essential ingredient for conviction for offence under Section 411 IPC are as under:-
a. That the stolen property was in possession of the accused; b. That some person other than the accused had possession of the property before the accused got its possession and c. That the accused had knowledge that the property was stolen.
62. Section 25 Arms Act provides punishment for possession of any prohibited arms and ammunition.
63. Section 27 Arms Act provides punishment for using arms and ammunition without license or prohibited arms and ammunitions.
64. Section 403 IPC provides punishment for dishonest misappropriation or conversion to his own use of a movable property by the accused.
65. Section 170 IPC provides punishment for pretending to hold any SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 26/46 particular office as a public servant by a person knowing that he does not hold such office or falsely impersonating any person holding any such office.
66.Section 34 IPC provides exception to the general rule that no man can be held responsible for an independent act and wrong committed by another. It lays down the principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, emanating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention, each person is liable for the result thereof as if he had done the act himself. The soul of Section 34 IPC is the joint liability of doing a criminal act. This section only provides a rule of evidence and does not create a substantive offence. Two elements are necessary to fulfil the requirement of Section 34 IPC. One is that the person must be present on the scene of occurrence and the second is that there must be a prior concert or a pre-arranged plan. Unless these two conditions are fulfilled, a person cannot be held guilty of an offence by operation of Section 34 IPC.
67. Common intention implies a pre-arranged plan and acting in concert pursuance to that plan. Common intention comes into being prior to the commission of act in point of time which need not be a long gap. The common intention to give effect to a particular act may even SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 27/46 develop at the spur of the moment between a number of persons with reference to the facts of a given case. Where there is no direct evidence of common intention, it has to be inferred from circumstantial evidence.
68. Now, let us apply the above discussed definitions of the offences with which accused has been charged to the facts of the present case.
ARGUMENTS OF LD. DEFENCE COUNSEL:
69. It is submitted by Ld. Defence Counsel for accused Manoj, Sandeep and Sunny that they have been falsely implicated in this case. Their arrest is doubtful as the alleged secret information received by the IO was not passed on to Higher Police Officials. No public persons were involved in the alleged arrest and recovery proceedings. The accused persons were not apprehended at the spot and the complainant had not given any description of any of the accused persons in his original complaint Ex.PW1/A. Accordingly, identification of the accused persons for the first time in the Court after about 9 months of occurrence of the incident is clearly doubtful. In addition to this, there is no technical evidence on record for connecting the accused persons to the reported offence. Neither there is any CCTV Footage collected by the IO nor any fingerprints of any of the accused have been lifted from the car of the complainant. Even the allegedly recovered phone (make Samsung) from the car of the Victim has not been connected to any of the accused in any manner. The buttondar knife allegedly recovered from the possession of the accused Manoj SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 28/46 @ Pramod and the knife allegedly recovered from accused Rakesh @ Patel has not been connected to injury sustained by the Victim at the time of the incident. There is no DNA matching in this regard. There is no evidence that the knives allegedly recovered from the accused persons were found to be blood stained. In addition to this, recovery of Sim Card of the complainant bearing no.9717482133 is alleged to have been effected from accused Manoj @ Pramod. However, complainant himself has failed to identify the allegedly recovered Sim as belonging to him and has categorically stated that his sim was bigger in size. Also, it is highly improbable that a robber after handing over the stolen mobile to another person, shall continue in possession of Sim Card taken out from the said stolen mobile. This clearly clouds the alleged recovery of Sim Card from accused Manoj @ Pramod with doubt. Moreover, complainant/PW-1 had not identified the Khaki Shirt and Pant allegedly recovered from the accused persons as the clothes worn by any of the accused persons at the time of incident. All these lacunas in the evidence are sufficient to cloud the entire case of the prosecution with doubt and the benefit of this doubt has to be given to the accused persons. Accordingly, it is prayed that the accused Manoj @ Pramod, Sandeep @ Sunny and Rakesh @ Patel be acquitted in the present case.
70.As regards the accused Ashwani, it is submitted by Ld. Defence Counsel that he has only been charged for offence under Section 411 IPC as he was found in possession of the robbed mobile phone belonging to the complainant. However, no evidence has been led by SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 29/46 the prosecution to prove that accused Ashwani had received or retained the said mobile phone knowing or having reasons to believe that the same was a stolen property. No connection of accused Ashwani to other co-accused persons has been established. Accused Ashwani has specifically explained in his statement under Section 313 Cr.P.C. that he had purchased the said mobile phone from accused Rakesh @ Patel who was residing in his locality for a sum of Rs.300/- without knowing that it was a robbed mobile phone. This explanation put forth by the accused Ashwani is highly probable and acceptable. This probability is sufficient to cloud the case of the prosecution against him with doubt. Accordingly, Ashwani is entitled to acquittal due to insufficient and doubtful evidence.
ARGUMENTS OF LD. ADDITIONAL PP FOR THE STATE:
71. Per contra, it is submitted by Ld. Additional PP for the State that the victim Jai Prakash/PW1A has duly supported the case of the prosecution. There are no contradictions in his testimony and his original complaint Ex.PW1/A. The accused persons have not come forward with any reason for their false implication in the present case. The testimony of victim Jai Prakash is duly corroborated by the testimony of his brother Pramod Kumar who is examined as PW2 as well as his MLC Ex.PW8/A. There is no delay in reporting the matter to the police as 100 no. call was made immediately. There is also no delay in the registration of the present FIR. Victim Jai Prakash/PW1A has duly identified all the accused persons during his testimony and has also explained their roles in the reported incident. The accused SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 30/46 persons could not be earlier identified by the victim as they had refused to join the TIP proceedings for which adverse inference can be drawn against them. The complainant has also specifically deposed that after refusal of the accused persons to participate in the TIP proceedings, on one day when he had come to the court he has seen the accused persons and identified them. His supplementary statements dated 03.09.2014 and 20.09.2014 to this effect are already on record wherein also the roles of the accused persons have been specified. In these circumstances, the identification of the accused persons by the victim before court cannot be doubted. Rather, an adverse inference can be drawn against the accused persons that since they were fearing their identification by the victim, they had refused to participate in the TIP proceedings.
72. It is further submitted that in the present case there are 03 witnesses to the apprehension and arrest of accused Manoj @ Pramod, Sandeep @ Sunny and Rakesh @ Patel and the recoveries effected from them.
These witnesses include PW11 HC Prakash, PW13 HC Sandeep and PW18/IO Inspector Umed Singh. The testimonies of all these witnesses regarding the arrest and recovery proceedings are in consonance with each other and there is no reason to doubt the same merely because they are police officials. Ld. Defense Counsels have failed to point out any contradictions in their testimonies sufficient to doubt their veracity. In addition to this merely because the victim has failed to identify the Khakhi uniform recovered from the accused persons as the uniform worn by them at the time of the incident it is SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 31/46 not sufficient to doubt the testimony of the victim/PW1A regarding the occurrence of the incident itself.
73. As regards accused Ashwani, it is submitted that he has not disputed recovery of the robbed mobile phone belonging to the complainant from his possession. He has merely tried to explain his possession by stating that he had purchased the said mobile phone from accused Rakesh @ Patel for Rs.300/-. This explanation by accused Ashwani in itself is sufficient to hold him guilty for offence u/s 411 IPC as a person who is purchasing a mobile phone for only Rs.300/- is deemed to have reason to believe that the said mobile phone is a stolen property as no prudent person will sell his own mobile phone at such throw away price. It is submitted that considering the over all evidence on record, accused persons are liable for conviction for offences charged against them.
FINDINGS:
74. I have heard the arguments at length and have carefully perused the record.
75. The entire case of the prosecution is based on the testimony of the Victim Jai Prakash who has been examined as PW-1A. As per the case of prosecution, the incident had occurred in the intervening night of 04/05.08.2014 at about 12:00-12:15 AM while the complainant/Victim was traveling alone by his Car. Accordingly, except for PW-1A/Jai Prakash, there was no other eye witnesses to SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 32/46 the occurrence of the incident. The Victim Jai Prakash has duly deposed about the occurrence of the incident in consonance with his original complaint Ex.PW1/A. There are no contradictions in his testimony and his original complaint. Nor any such contradictions have been pointed out by Ld. Defence Counsels. From the testimony of Victim Jai Prakash/PW1A, it is clearly established on record that in the intervening night of 4-5.08.2014, his vehicle was stopped by a person wearing Khaki Uniform, thereafter, he was robbed of his mobile phone and gold chain on knife point by 3 persons. He had also sustained injury near his neck during the said incident. The occurrence of the incident as contained in original complaint Ex.PW1/A is corroborated not only by the testimony of Victim Jai Prakash who has examined as PW1A but also by the testimony of his brother Pramod Kumar who is examined as PW-2 and has deposed about the manner in which the Victim Jai Prakash had reached his house in injured condition and was taken to GGS Hospital and police was informed in this regard. There is also corroboration of the occurrence of the incident from the PCR call which was received in PS Miyawali Nagar vide DD No.6A dated 05.08.2014 and by MLC of Victim Jai Prakash prepared at GGS Hospital at 01:55 AM on 05.08.2014 showing injuries corresponding to the deposition of Victim Jai Prakash/PW1A. Thus, the occurrence of the incident in itself has been duly proved on record by the prosecution beyond any reasonable doubt.
76.The second question that arises for consideration is whether the SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 33/46 prosecution has been able to establish the identity of the accused persons as robbers from the evidence produced on record. Again, the entire case of the prosecution, in this regard, rests on the sole testimony of Victim Jai Prakash/PW1A as there was no other eye witness to the reported offence. Victim Jai Prakash has duly identified accused Manoj @ Pramod, Sandeep @ Sunny and Rakesh @ Patel as the robbers who had robbed him on the date of incident. He has detailed the roles of the accused persons by deposing that accused Rakesh @ Patel was one of the person who was wearing a Khaki Uniform and had stopped the car and thereafter, opened the front gate of the driver seat showing him a knife. Accused Manoj @ Pramod has been identified as the other person wearing a nikker t- shirt who had stopped the car and had sat with him on the back seat of the car and had continuously put the knife on his neck. Accused Sandeep @ Sunny has been identified as the other person who was wearing the Khaki Uniform and sat by the side of the driver seat. Perusal of testimony of Victim Jai Prakash clearly shows that he has not merely identified all the accused persons as the robbers but has specifically detailed their roles and has not identified accused Ashwani as a robber as he was not one of the persons who had robbed him. This clearly gives credibility to the statement of Victim Jai Prakash/PW1A. Moreover, the accused persons have not come forward with any defence or reason because of which they were falsely implicated in the present case. Despite lengthy cross- examination, defence could not shake the veracity of this witness.
77.I find no merit in the argument of Ld. Defence Counsel that since the SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 34/46 accused persons were identified as robbers for the first time before Court after about 9 months of the incident, their identification is doubtful. This is primarily because of the reason that accused persons themselves had refused to participate in the TIP proceedings, thus, giving no opportunity to the investigating agency to get their identity established as robbers during investigation. Moreover, the complainant has specifically stated that after a few days of arrest of the accused persons, he had seen them in Court and identified them. When the supplementary statements dated 03.09.2014 and 20.09.2014 of the Victim Jai Prakash to this effect are perused they clearly show that Victim Jai Prakash had assigned the same roles to the accused persons in the incident as deposed by him before the Court.
78.Perusal of the record also shows that the accused Manoj and Sandeep were arrested on 25.08.2014 and they had refused to participate in the TIP vide proceedings dated 26.08.2014 (Sandeep) and 02.09.2014 (Manoj). While accused Sandeep stated that he apprehended his identification by the complainant and was thus, refusing to participate in the TIP proceedings, accused Manoj stated that his photographs were taken by the police officials at the PS and the same have been shown to the witness. However, no such suggestions have been given on behalf of the accused persons either to the Victim Jai Prakash or to the IO Inspector Umed Singh/PW-18. Accused Rakesh @ Patel was arrested on 16.09.2014 and has refused to participate in TIP vide proceedings dated 19.09.2014 giving the same reason of his SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 35/46 photographs being taken by the police officials at PS. However, in cross-examination of IO, a suggestion has been given that accused Rakesh was shown to the injured prior to conducting of his TIP and that is the reason why he had refused to participate in the TIP proceedings. Thus, the accused persons have miserably failed to bring on record any justifiable reason for their refusal to participate in the TIP proceedings. Accused Sandeep is in fact very clear that he was apprehending his identification by the victim and had thus refused to participate in the TIP proceedings. Accordingly, considering the stand of the accused persons and evidence brought on record, it can safely be held that the refusal of the accused persons to participate in the TIP proceedings is sufficient to draw an adverse inference against them to the effect that since they were apprehending their identification as robbers by the victim, they had refused to participate in the TIP proceedings.
79.It is also worthwhile to mention that as per the case of the prosecution, accused Ashwani was not involved in the incident of robbery. For this reason, Victim Jai Prakash had neither identified him as a robber in the Court nor identified him during the TIP proceedings dated 26.08.2014. This again gives credibility to the testimony of the PW-1A Jai Prakash regarding the identification of the accused persons.
80.In view of the reasons given above, I am of the considered opinion SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 36/46 that there is no reason to doubt the testimony of Victim Jai Prakash/PW-1A regarding the identification of the accused persons as the robbers and their roles in the commission of the reported offence. Considering his testimony, it is duly proved on record that accused Manoj @ Pramod, accused Sandeep @ Sunny and accused Rakesh @ Patel were the 3 robbers who had robbed the Victim Jai Prakash on the date and time of incident on knife point and in the process voluntarily caused hurt to the complainant. It is also duly proved on record that at the time of commission of the offence, accused Rakesh @ Patel had used the knife against the complainant/Victim Jai Prakash. Also, accused Rakesh @ Patel and accused Sandeep @ Sunny were the robbers who were wearing Khaki Uniform pretending to be police officials at the time of incident. Thus, accused Manoj @ Pramod, Sandeep @ Sunny and Rakesh @ Patel are liable for conviction for offence under Section 394/34 IPC. Accused Rakesh @ Patel and accused Sandeep @ Sunny are also liable for conviction for offence under Section 170/34 IPC. However, as per the testimony of complainant Jai Parkash/ PW-1A accused Manoj @ Parmod was wearing a nicker T shirt at the time of incident and thus had not impersonated as a police official. Thus, accused Manoj @ Pramod is not liable for conviction under section 170/34 IPC. Accused Rakesh @ Patel is also liable for offence under Section 397 IPC r/w 27Arms Act as he had used a knife i.e. a dangerous weapon at the time of commission of a robbery.
81.No merit is found in the arguments of Ld. Defence Counsel that since SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 37/46 the complainant has failed to identify the Khaki Uniform allegedly recovered from the accused persons, they are not liable for offence under Section 170 IPC. This is primarily because of the reason that Section 170 IPC punishes a person who pretends to hold any particular office as a public servant. The offence of Section 170 IPC was completed when the accused Rakesh @ Patel and Sandeep @ Sunny had stopped the car of the complainant wearing khaki police Uniform and the complainant stopped the car thinking them to be police officials. Whether or not the said khaki uniforms were recovered or identified by the complainant is immaterial and does not effect the ingredients of offence under Section 170 IPC.
82.As regards apprehension and arrest of accused persons, it has been argued by Ld. Defence Counsel that the the same is doubtful primarily because no independent public persons have been involved in the proceedings. I find no merit in this argument of Ld. Defence Counsel. The statements of police witnesses cannot be ignored or discarded merely because they are police officials. It is a well known fact that general public does not feel comfortable to join the official duties of police officers as they avoid being involved in police work for fear of harassment and wastage of time. However, if public persons are not coming forward to support the police officials by becoming witnesses in recovery proceedings, it in itself is not sufficient to scrap the entire police work. If such a view is taken, it would lead to complete lawlessness in the State. Although it is correct that the testimonies of the police officials have to be SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 38/46 scrutinized carefully when they are not supported by independent public witnesses but this alone cannot be a reason to completely discard their evidence in this regard.
83.In the present case, there are two police officials to the apprehension and arrest of the accused Manoj @ Pramod and Sandeep @ Sunny on 25.08.2014 who have been examined as PW-11 HC Prakash and PW-18 Inspector Umed Singh and two witnesses to the apprehension and arrest of the accused Rakesh @ Patel on 16.09.2019 that are PW-13 HC Sandeep and PW-18 Inspector Umed Singh. These witnesses deposed about the proceedings conducted during apprehension and arrest of these accused persons in consonance with each other. There are no contradictions in their testimonies nor any have been pointed by Ld. Defence Counsel. Despite lengthy cross- examination, defence could not shake the veracity of these witnesses. As per the testimonies of these witnesses two knives were recovered, one button actuated knife from accused Manoj @ Pramod and one knife from accused Rakesh @ Patel. It has been argued by Ld. Defence Counsel that these knives have been planted by the IO. However, I find no reason for believing this argument as in case the knives were to be planted they could have been planted on all three accused persons. There is no explanantion or reason put forth by the defence as to why no knife was planted on accused Sandeep @ Sunny who was apprehended along with accused Manoj @ Pramod. In addition to this, merely because the secret information was admittedly not given to higher police officials, it is not sufficient to SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 39/46 presume that the entire proceedings were doubtful. If a secret information regarding immediate presence of the accused is being received by a police officials, he is justified in acting upon it rather than first getting into the formalities and giving time to the accused persons to escape. Accordingly, merely because the information was not passed on to the higher police authorities is not sufficient to doubt the testimonies of these witnesses which are otherwise reliable and appear to be credible. Considering the testimonies of these police officials, I have no hesitation in holding that the prosecution has duly proved on record beyond any reasonable doubt, the factum of apprehension and arrest of accused persons namely Manoj @ Parmod and Sandeep @ Sunny on 25.08.2014 and of accused Rakesh @ Patel on 16.09.2019 and the recoveries effected from them i.e one knife, length of the blade of which was 14 cm. from the possession of accused Rakesh @ Patel and one buttondar knife from the possession of accused Manoj @ Parmod. Since both these knives are prohibited by virtue of DAD notification No. F/13/451/79-Home (G) dated 29.10.1980, accused Rakesh @ Patel and Manoj @ Parmod are liable for conviction for offence under section 25 Arms Act. It is immaterial that the knives recovered were not having any blood stains or have not been connected to the offence reported vide present FIR as section 25 Arms Act punishes the offence of possession of arms without any valid license and not necessarily their involvement in any offence.
84.It is also noteworthy that vide subsequent opinion dated 18.10.2014 SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 40/46 (Ex. PW-14/B), after considering the size of the injury caused to the victim, it has been opined that the injury might have been caused by the knife recovered from the possession from accused Rakesh @ Patel considering its dimensions. This report is again not challenged by the accused persons and the concerned doctor/PW-14 has not been cross examined on behalf of the accused persons. It is apparent that the accused Rakesh @ Patel has been apprehended after more than 40 days of the occurrence of the incident and thus, non finding of blood stains on the recovered knife is explainable.
85.The testimonies of these police witnesses also duly prove on record beyond any reasonable doubt, the recovery of one sim card bearing no. 9717482133 from the possession of accused Manoj @ Parmod, however, this sim card cannot be said to be stolen property as the complainant/victim has refused to identify the said sim card as belonging to him or present in his mobile at the time when his mobile was stolen. Accordingly, accused Manoj @ Parmod cannot be held guilty for the offence 411 IPC. However, one gold chain belonging to the complainant has been recovered from the possession of accused Rakesh @ Patel. As discussed above, the recovery has duly proved on record beyond any reasonable doubt. The said recovered gold chain has also been identified by the victim as belonging to him and a part of the robbed articles. Accordingly, accused Rakesh @ Patel is also liable for conviction under section 411 IPC as he had retained the said gold chain after robbing it from the complainant and knowing that it was a stolen property.
86.As regard offence under section 403 IPC for which the accused SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 41/46 persons have been charged, it is the case of the prosecution that one mobile phone (make Samsung) belonging to one Sher Khan was left by the robbers in the car of the victim at the time of occurrence of the incident. The recovery of the said mobile phone from the car of the victim has been proved by the statements of the victim Jai Parkash PW-1A, his brother Parmod Kumar/PW-2 and police witnesses, however, the complainant has not deposed that he had seen the accused persons in possession of the said mobile phone. No sim card was in the said mobile phone nor the connection of the said mobile phone to any of the accused persons could be establish during investigation. As per testimony of the IO, the said mobile phone was traced through IMEI number and on inquiry Sher Khan told him that the said mobile phone was lost by him and the matter was reported at PP Tilak Vihar. But the statements of PW-1A, PW-2, PW-6 and PW-18 regarding the recovery of the said mobile phone are completely contradictory to each other. As per the testimony of PW-1A Jai Prakash, mobile was handed over to police on the next day of the incident by him at PS. As per statement of PW-2 Pramod, mobile phone was seized by the police at PS on the date of incident itself. As per PW-6/HC Surinder, phone was recovered for the car of the complainant at Hospital and as per PW-18/IO Inspector Umed Singh, mobile phone was handed over by the complainant at the Hospital. Thus, all these witnesses have deposed about recovery of mobile phone belonging to Sher Khan/PW-1 in contradiction to the statement of each other clouding the entire recovery with doubt. In addition to this, there is no clarity from their depositions as to from SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 42/46 which seat of the car recovery was effected to hold either of the accused guilty for offence under Section 403 IPC. Accordingly, the evidence on record is highly insufficient for convicting the accused persons for the offence under section 403 IPC.
87.As regards accused Ashwani, he has been charged for offence u/s 411 IPC as the robbed mobile phone of the complainant was recovered from his possession. The recovery of one mobile phone make Nokia allegedly belonging to the complainant from accused Ashwani is not in dispute. Accused himself has admitted the recovery of the said mobile phone from his possession in his statement recorded under section 313 Cr. P.C. Two witnesses to the recovery have been examined by prosecution i.e. HC Mahavir Singh PW-3 and Ct. Sanjay Kumar PW-7. The testimonies of these two witnesses are in consonance with each other and there are no contradictions in their statements pointed out by Ld. Defence Counsel. Accordingly, the factum of recovery of the said mobile phone from accused Ashwani is duly proved on record. However, the said mobile phone has not been identified by the victim Jai Parkash during his testimony nor it was shown to him for identification. The said mobile phone was also not subjected to TIP during investigation. The recovered mobile phone (make Nokia) was identified only by PW-3 and PW-7 who are witnesses to the alleged recovery of the said mobile. Even if, the statement of PW-3 and PW-7 are considered to be gospel truth at the most they can prove the fact that one Nokia X2 mobile phone colour black and cherry has been recovered from the possession of accused SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 43/46 Ashwani, however, whether or not the said recovered mobile phone was the mobile phone of the complainant that was robbed on the date of incident is not established on record on account of failure of complainant to identify the said mobile phone either during investigation or during evidence. Since, the recovered mobile phone make Nokia X2 has not been identified as a stolen property, accused Ashwani cannot be held liable for the offence under section 411 IPC. This is more so as the description of the stolen mobile phone given in the original complaint Ex. PW-1/A i.e. Nokia H2 does not match description of the mobile phone recovered from accused Ashwani i.e. Nokia X2 colour black and cherry. The complainant has not provided the IMEI number of his mobile phone or even the colour of his robbed mobile phone in his complaint. Accordingly, there is no evidence on record to connect the mobile phone recovered from the possession of accused Ashwani to the stolen mobile phone belonging to the complainant that was robbed on the date of reported incident. Thus, accused Ashwani is entitled to acquittal for offence under Section 411 IPC as charged against him due to lack of evidence.
CONCLUSION:
88. In view of the reasons given above and considering the overall evidence that has come on record, the accused persons are liable for conviction and acquittal for various offences as per the following details and are convicted/acquittal as under:-
1. Accused Manoj @ Parmod, Sandeep @ Sunny and Rakesh @ SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 44/46 Patel are convicted for the offences under Section 394/34 IPC.
2. Accused Rakesh @ Patel is also convicted for the offence under Section 397 IPC read with Section 27 Arms Act.
3. Accused Rakesh @ Patel and Sandeep @ Sunny are also convicted for offences under Section 170/34 IPC.
4. Accused Rakesh @ Patel is also convicted for the offence under Section 411 IPC for possession of robbed gold chain belonging to the complainant.
5. Accused Manoj @ parmod and Rakesh @ Patel are also convicted for the offence under Section 25 Arms Act for possession of prohibited arms without license.
6. Accused Manoj@ Parmod, Sandeep @ Sunny and Rakesh @ Patel are acquitted for the offence under Section 403/34 IPC.
7. Accused Sandeep @ Sunny is acquitted for offence under Section 170/34 IPC.
8. Accused Manoj @ Parmod is acquitted for the offence under Section 411 IPC.
9. Accused Ashwani is acquitted for offence under Section 411 IPC as charged against him.SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 45/46
89. Be heard on the point of sentence separately.
Digitally
signed by
SHIVALI
SHIVALI SHARMA
SHARMA Date:
2025.05.16
15:36:05
+0530
(Shivali Sharma)
Additional Sessions Judge-03(West)
Tis Hazari Court/16.05.2025
SC No. 57167-2016 State Vs. Ashwani Kumar @ Kanu & Ors. FIR No. 573-2014 Page No. 46/46