Delhi District Court
State vs . 1) Rakesh @ Nipal on 13 January, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 125/2013
Unique Case ID: 02404R0147582013
State Vs. 1) Rakesh @ Nipal
S/o Sh. Lala Ram
R/o D277, GP Block,
Pitampura, Delhi.
(Convicted)
2) Sonu @ Chhotu
S/o Late Sh. Bindeshwar
R/o Vill. Mirjapur, Bawan Tolla
PS : Birol, Distt.: Darbanga, Bihar
(Convicted)
3) Raman @ Firoz
S/o Sh. Nathu Ram
R/o Jhuggi No. 55/195,
Shalimar Bagh, Delhi.
(Convicted)
FIR No. : 40/2013
Police Station : Maurya Enclave
Under Section : 394/397/34 Indian Penal Code
Date of Institution in Sessions Court : 31.05.2013
Date when judgment reserved : 17.12.2013
Date when judgment pronounced : 03.01.2014
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.1 of 70
JUDGMENT
BRIEF FACTS:
(1) The case of the prosecution in brief is that on 31.01.2013 at about 8:35 PM at District Park, Pitampura, Delhi, the accused Rakesh @ Nipal, Sonu @ Chhotu and Raman @ Feroz, in furtherance of their common intention, committed robbery of the mobile phone make Alkatel with double SIM with Mobile No. 9718006817 and 8447744049 from the possession of the complainant Bal Mukund. It is further alleged that while committing the robbery the accused persons also gave beatings to the complainant with dandas and leg and fist blows and caused grievous hurt on his person. It if also alleged that during the commission of the offence of robbery, the accused Sonu @ Chhotu used a deadly weapon i.e. knife.
CASE OF THE PROSECUTION IN BRIEF:
(2) The case of prosecution in brief is that on 31.01.2013 on receipt of DD No. 72B ASI Raju Yadav along with Ct. Uday reached at House No. WP114C, Pitampura, Delhi and came to know that the injured was already shifted to the Muni Maya Ram Hospital by the PCR Van. ASI Raju Yadav along with Ct. Uday reached the Muni Maya Ram Hospital where they came to know that after first aid, the patient State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.2 of 70 was shifted to Max Hospital, Netaji Subhash Place. ASI Raju Yadav along with Ct. Uday reached Max Hospital, Netaji Subhash Place and collected the MLC of the injured Bal Mukund. ASI Raju Yadav also recorded the statement of injured Bal Mukund who alleged that on 31.1.2013 at about 8:30 PM he had gone to District Park, Pitam Pura for a walk and was talking on his mobile phone and at about 8:35 PM three boys came there from behind the bushes and one of them asked him time but he ignored the same on which the said boy started abusing him.
Bal Mukund further stated that when he objected to those boys, they started beating him by danda, leg and fist blows and one of them pulled out a knife and threatened not to raise any alarm and thereafter they robbed of his Mobile Phone make Alkatel with double SIM No. 9718006817 and 8447744049 and fled from the spot. Bal Mukund also gave the description of the assailants to the police. (3) On the basis of the statement of Bal Mukund, a rukka was prepared and FIR was got registered. During investigations, on 25.3.2013, the complainant informed the Investigating Officer that the assailants were present at the District Park on which they all reached the District Park and apprehended one of the assailants who disclosed his name as Rakesh @ Nipal while the other two assailants managed to flee. The accused Rakesh @ Nipal was arrested in this case. State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.3 of 70 Thereafter, on 30.3.2013 pursuant to a secret information, the co accused Sonu was also arrested from DU Block Pitampura. During investigations, on 22.4.2013 pursuant to a secret information, the third assailants Raman @ Firoz was also arrested from the District Park Pitam Pura. After completing the investigations, charge sheet was prepared and filed in the court.
CHARGE:
(4) Charge under Sections 392/394/34 Indian Penal Code was settled against the accused Rakesh @ Nipal, Sonu @ Chhotu and Raman @ Firoz to which they pleaded not guilty and claimed trial.
Also charge under Section 392 IPC was settled against the accused Sonu @ Chhotu to which he pleaded not guilty and claimed trial. EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Eleven Witnesses as under :
Public Witnesses:
(6) PW6 Kumar Bal Mukund has deposed that on 31.01.2013, he had gone to District Park, Pitampura for walking in the evening at about 8.30 pm. He has further deposed that while walking in the park, he was talking on his mobile phone with his elder brother, when State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.4 of 70 suddenly three persons came out behind the bushes situated in the park from the left side. According to the witness, one of them asked him the time and on this aspect he ignored and crossed him. He has further deposed that again he (accused) asked him (witness) about the time and he (accused) then abused him (witness). During the recording of testimony of this witness, he has pointed out towards the accused Rakesh as the person who had asked him the time and abused him. (7) He has further deposed that thereafter he (witness) scolded him (accused) (usko daanta) on his (accused) behavior. He has further deposed that thereafter accused Raman took out a long knife which he was having. According to the witness accused Sonu was having a danda and third accused was not having any arm. He has deposed that thereafter accused Raman attacked on him (witness) with a bamboo stick (danda) and till then he could not understand the situation (us time main sochne samajhne mein saksham nahi tha). He has further deposed that he was assaulted by Raman with a danda on his right arm and he felt as if it was fractured. According to the witness, he requested them that he was wrong and to forgive him, but all the three accused persons were adamant. He has deposed that thereafter accused Rakesh exhorted others to kill and throw him there itself (is ko maar ke yahin gaad dete hain) and accused persons then starting giving beatings to him with State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.5 of 70 kicks and fists. He has identified the accused Rakesh during trial in the Court. He has further deposed that in the meantime due to beatings he sustained a fracture on his left arm also and thereafter they targeted on his both the legs. According to the witness, he requested them that he had a minor child of six months and he was newly married but they did not pay any heed to his requests and continuously attacked on him with kicks, fists and with dandas. He has deposed that he was wearing jacket at that time and accused were continuously attacking him with a danda and also intended to attack him with a knife after covering his face with the cap or jacket but he was continuously requesting them to forgive / release him. He has further deposed that he requested them that whatever they wanted from him, they could take. According to the witness he was severely injured and both of his hands were not working on account of the fracture. He has further deposed that both of his legs were also severely injured and both the sides of his ribs were also severely injured due to injury inflicted by the accused. He has deposed that thereafter, accused persons took away his mobile phone and the currency which was in his purse was removed by the accused and thereafter the accused threatened him by saying "Seedha chala ja, Agar peeche muda to chaku maar ke gad denge". According to the witness he was badly injured but he somehow mustered courage and came out State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.6 of 70 of the park. He has deposed that the accused were removing money from his pocket the short accused i.e Raman whom the witness has correctly identified started moving the knife on his face threateningly.
He has further deposed that he somehow managed to reach his house and from there he made a call to 100 number. According to the witness police came and he was taken to Munni Mai Ram Hospital, Pitampura and thereafter due to insufficient facility in that hospital, he was taken to MAX hospital where his statement was recorded and same is Ex.PW6/A which bears his signatures at point A. He has further deposed that he had shown the place of incident to the police on 02.03.2013 where site plan was prepared at his instance. (8) He has further deposed that on 25.03.2013 he was moving near about his house and he saw the accused persons while going towards District Park. According to the witness thereafter he rushed towards police picket situated near Gopal Mandir and he informed SI Rajpal and Constable Ram Chander who were present at the police picket and thereafter he along with both the police officials went towards District Park, Pitampura for apprehension of accused persons. He has further deposed that thereafter he pointed out towards the accused persons out of which two of them managed to escape and accused Rakesh was apprehended and he was arrested vide memo State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.7 of 70 Ex.PW6/B and his personal search was carried out vide memo Ex.PW6/C which bears his (witness) signatures at point A. According to the witness accused Rakesh was interrogated by the Investigating Officer SI Rajpal and he made the disclosure statement which is Ex.PW6/D. He has further deposed that thereafter accused took them to the place of incident where accused pointed out the place of incident vide pointing out memo Ex.PW6/E. According to the witness he was continuously in touch with the progress of his case and on 04.04.2013 he went to police station to know the progress of his case when he saw one person i.e Sonu was in the custody of the police and he identified him as one of the assailants. According to the witness on 29.04.2013, he came to know that the third accused was also apprehended by the police in his case and he was called to participate in the judicial TIP in Rohini Jail but he came to know that accused Raman refused to participate in judicial TIP.
(9) He has further deposed that during investigation he came to know that his mobile phone make Alkatel was recovered which he had identified. He has further deposed that he also handed over the original bill of his mobile phone having IMEI No. 860350011854187 to the Investigating Officer and same is Ex.PW6/F. According to the witness he had taken the said phone on Superdari and the same has also been State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.8 of 70 produced by him (Ex.P3). He has identified all the three accused namely Rakesh @ Nipal, Sonu @ Chotu and Raman during trial in the Court.
(10) In her crossexamination by Ld. Defence Counsel, witness has deposed that he was Graduate (Science) and also having a Post Graduate Diploma in Business Administration. According to him, he generally went for a walk regularly but after the incident he had never gone to District Park, Pitampura and has voluntarily explained that after the incident, he had visited the park only with police two or three times. He has admitted that after the incident he did not visit the said park for usual walk. He has further deposed that he used to go for walk in the park generally at 7:00 - 7.30 PM. According to him, whenever he visited the park for walk, public persons also found to walk in the park but on the day of incident, he did not see a single person walking in the park. He has stated that on the day of incident he was alone while walking in the park and at that time he did not take any round in the park and was only walking towards the gate. According to the witness, it might be possible that some public persons may be present outside the park near gate. He has stated that on the left side of the park there was a plane area and has voluntarily explained that there were trees and bushes. He has further deposed that he had repeatedly told the police State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.9 of 70 that again when second time the accused asked for the time from him and he scolded him. He was confronted with statement Ex.PW6/A where it is not found so recorded. He has further deposed that he came to know the name of the accused persons after they were arrested by the police. According to the witness, the name of one of the accused was Raman who took out a knife and the said accused was also known by a nick name Firoz. He has admitted that, on the day of recording of his testimony in the Court, he had for the first time pointed out towards Raman as the person who was carrying out the knife and has voluntarily explained that at the time of the recording of his statement after the incident, he was hospitalized and he was not in a condition to give the entire details. According to the witness, after his discharge from the hospital, the police did not record his statement again. He has deposed that police had interrogated him on a large number of occasions. He is unable to tell on how many occasions the police might have recorded his statement. He has further deposed that he verbally told to police that the accused who was having the knife i.e Raman had caused injury on his face by covering in a circle but he could not tell if the same was reduced into writing in his statement. According to the witness he had never given any statement to the police in writing and has voluntarily explained that he had stated those facts to the police verbally. He has State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.10 of 70 denied that whatever he had deposed in the Court was an improvement on legal advice only to connect and implicate the accused in the case on the tutoring of the police or that it was for this reason those facts did not find a mention in his statement Ex.PW6/A. He has further denied the suggestion that all the three accused were carrying some weapon of offence and has voluntarily explained that only two persons were carrying weapons as deposed by him. Witness has admitted that he had not identified any of the accused persons in jail and has voluntarily explained that he was never called to the jail for the said purpose. He has denied that for the first time he was shown the accused by the police or that it was the police who told him that they were the offenders in the case or that the accused Rakesh was not apprehended in his presence. He has further denied the suggestion that accused Sonu and Raman were shown to him by the police and he was asked to identify them as the accused persons. He has admitted that the police never got prepared any sketch. He has further admitted that the police had shown him large number of photographs of that aspect and has voluntarily explained that he did not identify anybody from the said photographs as the assailants. He has denied the suggestion that he is identifying the accused i.e Rakesh, Sonu and Raman on the asking and tutoring of the police only for working out the present case. He has further denied the State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.11 of 70 suggestion that no recovery of mobile phone make 'Alcatel' had been made at the instance of the Raman or that his mobile phone was never robbed and was later on planted on the accused to connect him with the blind case. He has further denied the suggestion that the papers of the mobile were got prepared by him later and were handed over to the police only to justify the arrest of the accused persons who had been illegally lifted and detained in the police station. (11) According to the witness he was discharged from the hospital on 03.02.2013. He has deposed that according to modern technology, both his hands were not plastered but were only bandaged and has voluntarily explained that it was operated with plates. He has further denied the suggestion that accused Raman was never present in the park on 31.01.2013 or that he never attacked on him. He has further denied the suggestion that accused Raman had been falsely implicated in the present case in connivance with the police.
Medical Evidence:
(12) PW5 Dr. Shivani has deposed on behalf of Dr. Rohit and has identified his signatures and handwriting being well conversant with the same having worked with him. She has further deposed that on 31.03.2013 Balmukund Singh was brought to the casualty of Max State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.12 of 70 Hospital by his cousin Samresh Kumar Singh with alleged history of physical assault by three people at District Park, Pitampura, Delhi.
She has further deposed that Dr. Rohit examined the said patient vide MLC No. 2253/13 which is Ex.PW5/A bearing his observations at encircled portion X and bearing his signatures at point B. She has further deposed that on the basis of the injuries he gave his opinion regarding nature of injuries as 'Grievous' as mentioned at encircled portion Y bearing his signatures at point B. (13) In her crossexamination by Ld. Defence Counsel, she has admitted that she had not personally examined the patient. She has voluntarily explained that she was deposing on the basis of official records.
Police / Official Witnesses:
(14) PW1 HC Angad is a formal witness being MHC (M) who has been examined by way of affidavit which is Ex.PW1/1 (as per provisions of Section 296 Cr.P.C.) wherein he has proved that on 31.03.2013 SI Rajpal handed over to him two mobile U/s 102 Cr.P.C.
which was recovered from accused Sonu @ Chhotu and accordingly he made entry in register no. 19 vide entry no. 973/13. He has further deposed that SI Rajpal handed over to him one sealed pullanda with the State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.13 of 70 seal of RP which contain one mobile IMEI No. 860350011854187 which was recovered from accused Raman @ Firoz and in this regard he made entry in register no. 19 vide entry no. 1294/13. He has further deposed that so long the exhibits remained in his custody there was no tempering of any sort with the exhibits.
(15) In his crossexamination by Ld. Defence Counsel, he has admitted that he had made the entries on the basis of the seizure memo. He has denied the suggestion that the entries had been manipulated and ante time and ante dated at the instance of the IO.
(16) PW2 HC Bujveer is a formal witness being Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per provisions of Section 296 Cr.P.C.) wherein he has proved that on 01.02.2013 he was deployed as Duty Officer of Police Station Maurya Enclave, Delhi from 12 Midnight to 8 AM. He has further proved that on 01.02.2013 Constable Uday brought a rukka from ASI Raju Yadav at about 12:15 AM and handed over to him for registration of criminal case under Section 394/34 IPC. He has further deposed that he narrated the facts to SHO and thereafter made an entry vide DD No. 3A into Rozanmacha in that regard and he also made endorsement on the rukka. He further deposed that he got registered the FIR No. 40/13 under Section 394/34 IPC from CIPA and handed over the original rukka and State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.14 of 70 copy of FIR to Constable Uday with directions to hand over the same to ASI Raju Yadav.
(17) In his cross examination by Ld. Defence Counsel, he has denied the suggestion that the entries had been ante timed on the asking of the senior officers.
(18) PW3 Constable Rakesh is a formal witness being D. D. Writer who has been examined by way of affidavit which is Ex.PW3/1 (as per provisions of Section 296 Cr.P.C.) wherein he has proved that on 31.01.2013 at about 9:45 PM a call was received regarding some people snatched the money after stabbing at WP114C, Pitampura and accordingly he informed ASI Raju Yadav regarding that and recorded the same vide DD No. 72B in the Roznamcha. He has not been cross examined on behalf of the accused despite opportunity in this regard. (19) PW4 Constable Uday Singh is a formal witness being Emergency Constable who has been examined by way of affidavit which is Ex.PW4/1 (as per provisions of Section 296 Cr.P.C.) wherein he has proved that on 31.01.2013 at about 9:45 PM a PCR call was received at police station Maurya Enclave regarding some people snatched the money after stabbing at WP114C Pitam Pura and the same was marked to ASI Raju Yadav for necessary action. He has further deposed the he alongwith ASI Raju Yadav reached at WP114C, State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.15 of 70 Pitampura, Delhi where they found that victim had been moved to Max Hospital, Netaji Subhash Place and thereafter they moved to Max Hosptal where victim Sh. Balmukand was found under treatment vide MLC No. 2253/13. He has further deposed that ASI Raju Yadav recorded the statement of the complainant and made his endorsement and handed over the rukka to him (witness) for registration of criminal case under Section 394/34 IPC. He has further deposed that thereafter he reached at PS, Maurya Enclave at about 12.15 AM and handed over the rukka to Duty Officer who made an entry vide DD no. 3A into Roznamcha in that regard. He has further deposed that after registration of case, Duty Officer handed over to him a original rukka and copy of FIR with the directions to hand over to the Investigating Officer and, accordingly, he (witness) handed over the same to ASI Raju Yadav. (20) In his crossexamination by Ld. Defence Counsel, he has deposed that he reached at the spot along with ASI Raju Yadav at about 10:30 PM. He has further deposed that they had gone to the spot on a two wheeler scooter belonging to ASI Raju Yadav. He has further deposed that they did not reach the spot directly and has voluntarily explained that first they went to WP114C, DDA flats, Pitampura, Delhi but since they came to know that the PCR had shifted the injured to the hospital then they went to Muni Maya Ram Hospital and from there State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.16 of 70 they came to know that the injured was shifted to Max Hospital and therefore they reached Max Hospital around 10:30 PM. He has again voluntarily explained that he was not very sure about the time but it was around 10:30 PM only. He has further deposed that when they reached the Max hospital, they did not meet anybody from the family of the injured. He has further deposed that the Investigating Officer ASI Raju Yadav started recording the statement of the injured after about 1020 minutes of their reaching the hospital. He does not recollect if ASI Raju Yadav had taken the permission of the doctor and confirmed that the victim was fit for statement before recording his statement. He has further deposed that the statement of the victim was recorded in his presence but his signatures were not taken on the statement of the victim. He has denied the suggestion that the statement of the victim was not recorded in his presence. He has further denied the suggestion that the statement of victim was ante dated and antetimed or that it was never handed over to him to take to the police station. He has further denied the suggestion that he was deposing falsely at the instance of the senior officers.
(21) PW7 Constable Sandeep has deposed on 30.03.2013 he was posted as a constable at Police Station Maurya Enclave and on that day he was on beat duty along with SI Rajpal. According to him at State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.17 of 70 about 8:30 PM while he and SI Rajpal were present at Imperial Diary, LP Block, Pitampura one secret informer gave information to SI Rajpal that Sonu who was involved in an incident which had taken place in District Park was roaming around and was seen at DU Block, Pitampura. He has deposed that on receipt of that information he alongwith SI Rajpal immediately went to DU Block where one boy was standing near gate No 3 and on pointing out of secret informer, they apprehended the said boy. He has further deposed that the said boy started running on seeing them but they chased him and apprehended him. According to him on enquiry he (accused) disclosed his name as Sonu @ Chotu S/o Bindeshwar and thereafter he was arrested vide memo Ex.PW7/A, his personal search was conducted vide memo Ex.PW7/B and his disclosure statement was recorded vide memo Ex.PW7/C. He has further deposed that pursuant to his disclosure statement the accused took them to the spot of incident at District Park on which SI Rajpal prepared the pointing out memo vide Ex.PW7/D. According to him the accused Sonu then led them to the nehar near the district park where the jhuggie of his brother Deepak was situated. He has further deposed that he led them to the jhuggie of his brother Deepak and from there got recovered two mobile phones which he claimed he had snatched from District Park.
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.18 of 70 (22) On specific Court question, he has deposed that he had got these mobile recovered from under some tirpal. According to him the Investigating Officer then converted both the mobile with the help of the white cloth and sealed with the seal of SI Rajpal and thereafter seized vide seizure memo Ex.PW7/E. (23) The witness has identified the accused Sonu during trial in the court. He has also identified the mobile phone Ex.P2 bearing IMEI No. 910040832233089 and 910040032233097 of Spice of black color produced by MHC (M). He has also identified another mobile phone Ex.P3 make VELLCOM IMEI No. 865357012540645 and 865357012595987 of black color.
(24) In his crossexamination by Ld. Defence Counsel, he has deposed that he was on beat duty since that morning. He has further deposed that he did not make his ravangi/ departure separately specifically when he left the police station. According to him he also did not make his separate Wapsi when he returned to the police station. He has deposed that secret informer met SI Rajpal at about 8:30 PM and has further deposed that the distance between Imperial Diary and DU block is about 1:00 KM and has explained that he was with SI Rajpal on his (SI Rajpal) bike. He has deposed that the secret informer also came with them on the bike. He has further deposed that after State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.19 of 70 reaching DU Block, they searched for Sonu for about 45 minutes. According to him during that period, SI Rajpal did not ask any public person to join them in the police party. He has deposed that even after the accused Sonu was apprehended and after the accused Sonu allegedly got recovered the above mobiles and before they were seized no public person was joined. According to him he had informed the Investigating Officer that the accused Sonu had taken them to the jhuggie of his (accused) brother Deepak and got recovered two mobile phones from there after which they were converted into pullanda, sealed and seizure memo were prepared. Witness was confronted with statement Ex.PW7/DX1 where it was not found so recorded. He has denied the suggestion that Sonu was called from his village Mirzapur, District Darbhanga, Bihar and then his arrest was falsely shown from DU Block, Pitampura, Delhi. He has further denied the suggestion that all documents were prepared while sitting in the Police Station and he merely signed the same on the asking of the senior officers or that the accused was compelled to sign blank papers which were later on converted into various memos only to connect the accused with the offence. He has further denied the suggestion that accused Sonu did not make any disclosure statement vide Ex.PW7/C or that the same was recorded by the Investigating Officer of his own or that accused Sonu State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.20 of 70 did not get any mobile phone Ex.P2 and Ex.P3 recovered. He has further denied the suggestion that the above mobile phones were planted on the accused to work out blind cases and divert the blame on him. He has further denied the suggestion that he was deposing falsely. (25) PW8 Constable Pradeep has deposed on 22.04.2013 he was posted at Police Station Maurya Enclave and on that day he was on patrolling duty along with SI Rajpal. He has further deposed that at about 10:15 PM a secret informer met SI Rajpal and informed him that the accused Raman, wanted in the present case regarding the incident which had taken place at district park was present at district park and on receipt of that information they immediately went to district park accompanied the secret informer. According to him when they entered the district park, on the pointing out of secret informer one boy sitting in the district park was apprehended and on enquiry the said boy disclosed his name as Raman @ Feroz, Resident of jhuggie No. 55/195, Shalimar Bagh, Delhi and thereafter SI Rajpal arrested Raman vide memo Ex.PW8/A, conducted his personal search vide memo Ex.PW8/B and recored his disclosure statement vide memo Ex.PW8/C. He has further deposed that during his personal search one mobile phone make ALCATEL of black color was recovered from the right side pocket of his pant and Investigating Officer took the same State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.21 of 70 into his possession. He has further deposed that thereafter the accused led them to the place where the incident had taken place and Investigating Officer prepared the pointing out memo which is Ex.PW8/D. According to him the Investigating Officer SI Rajpal checked the IMEI number and thereafter converted the same into pullanda with the help of white cloth and sealed with the seal of RP and thereafter seized vide seizure memo Ex.PW8/E and also bearing the IMEI numbers i.e. 860350011854187 and 860350011854195 (which the witness states after seeing from the seizure memo). He has further deposed that thereafter his statement was recorded by the Investigating Officer SI Rajpal and he was relieved.
(26) Witness has identified the accused Raman in the court during trial of the present case. He has also identified mobile phone Ex.P1 make ALCATEL of black color bearing the IMEI numbers i.e. 860350011854187 and 860350011854195 as the same mobile which was recovered from the possession of accused Raman. (27) In his crossexamination by Ld. Defence Counsel, he has deposed that he was on beat duty since that morning. He has further deposed that he did not make his ravangi/departure separately specifically when he left the police station. According to him he also did not make his separate wapsi when he returned to the police station State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.22 of 70 and has voluntarily explained that during the evening he had come to the Police Station for the briefing and thereafter again went for his beat duty. He has further deposed that secret informer met SI Rajpal at about 1010:15 PM at MP Mall. According to him the distance between MP Mall and District Park was about 350400 meters. He has further deposed that they were on foot patrolling and has voluntarily explained that they were carrying a bike but carrying on foot patrolling and the bike was parked near the MP mall. According to him the secret informer also came with them on the bike which they picked up from MP Mall. He has deposed that first the Investigating Officer parked his bike outside the district park and thereafter they went inside. He has further deposed that there were large number of persons in the district park. According to him the Investigating Officer did not ask any public person to join the police party after receipt of secret information. He has deposed that even in the district park Investigating Officer did not ask any public person to join the investigations. He has further deposed that after they entered the district park, the accused was apprehended within 10 minutes. According to him after the accused was apprehended they remained inside for about 20 minutes and during that 2030 minutes all the documents were prepared. He has deposed that the mobile was sealed in the park but he does not recollect where the State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.23 of 70 seizure memo was prepared. He has admitted that his statement Ex.PW8/DX1 was recorded by the Investigating Officer and that the last four lines at portion X to X1 on Ex.PW8/DX1 were in a different handwriting and has voluntarily explained that the last four lines were in the handwriting of Investigating Officer but he could not tell as to who has written the top portion.
(28) The witness has denied that accused Raman was called to the police station from his house at Shalimar Bagh after which his arrest was falsely shown from District Park or that all documents were prepared while sitting in the Police Station and he merely signed the same on the asking of the senior officers. He has denied the suggestion that the accused was compelled to sign blank papers which were later on converted into various memos only to connect the accused with the offence. He has further denied the suggestion that accused Raman did not make any disclosure statement vide Ex.PW8/C or that the same was recorded by the Investigating Officer of his own. He has further denied the suggestion that mobile phone Ex.P1 was not recovered from the possession of accused Raman. He has also denied the suggestion that the above mobile phone was planted on the accused to work out blind cases and divert the blame on him. He has further denied the suggestion that the accused Raman was not the person wanted in this State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.24 of 70 case or that he had been falsely implicated or that he was deposing falsely.
(29) PW9 ASI Raju Yadav has deposed that on 31.01.2013 he was posted in Police Station Maurya Enclave and on that day he was on duty from 8 pm to 8 am and at 9.45 pm he received on information vide DD no.72B, true copy of the same is Ex.PW3/A, through telephone he alongwith Constable Uday reached at WP114C, Pitampura from where they came to know that the injured has shifted to Muni Maya Ram Hospital. According to the witness some public persons met him there and he made enquiry from them but he did not record the statement of those persons. He has deposed that after coming to know that injured have shifted to Muni Maya Ram Hospital they went to Muni Maya Ram Hospital from where the doctor concerned who attended the injured had disclosed that injured have been referred to MAX Hospital, Netaji Subhash Place after giving him first aid. He has further deposed that thereafter he along with Constable Uday went to MAX Hospital and from the casualty ward of MAX Hospital, he collected the MLC No. 2253/13 of injured Bal Mukund. He has further deposed that Doctor declared him fit for statement and he recorded his statement Ex.PW6/A. According to the witness, thereafter he made his endorsement on the same vide his endorsement Ex.PW9/A which bears State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.25 of 70 his signatures at point A. He has further deposed that thereafter he prepared rukka and got the case registered through Constable Uday and thereafter Constable Uday came at the spot and handed over the copy of FIR and original rukka to him at the spot where he reached subsequently. According to the witness no eye witness was found at the spot so that site plan could not be prepared on that day. He has further deposed that on that day he made the efforts to search for the assailants but could not succeed. He has further deposed that having no option he returned to the police station and he recorded the statement of Constable Uday. According to the witness thereafter he again on 06.02.2013 visited the place of incident but the condition of the injured was not probable so, on that he also could not prepare the site plan having no option, he returned to the police station and thereafter the investigation was assigned to SI Rajpal and he handed over the case file to MHC (R).
(30) PW10 Constable Ram Chander has deposed that on 25.03.2013 he was posted at Police Station Maurya Enclave and on that day he was on patrolling duty along with SI Rajpal. He has further deposed that at about 7:45 PM victim met SI Rajpal and informed him that the assailants who had robbed him in District park were sitting in the district park and thereafter they along with the victim Balmukand State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.26 of 70 reached the district park, Pitampura and after they entered the park, Balmukand pointed out three persons sitting on one side near the bushes. According to the witness when they went near those boys to apprehend them, they started running away. He has deposed that after they chased they could manage to apprehend one boy while other two escaped. He has further deposed that on interrogation, the said boy disclosed his name as Rakesh, Resident of D277, GP Block jhuggie, Pitampura and thereafter SI Rajpal arrested accused Rakesh vide memo Ex.PW6/B, his personal search was conducted vide memo Ex.PW6/C and his disclosure statement was also recorded vide memo Ex.PW6/D. He has further deposed that thereafter the accused Rakesh led them to the place of incident and pointing out the place of occurrence after which SI Rajpal prepared the pointing out memo which is Ex.PW6/E. (31) In his crossexamination by Ld. Defence Counsel, he has deposed that he was on beat duty since morning at 10 AM. He has further deposed that he did not make his ravangi / departure separately specifically when he left the police station. According to the witness he also did not make his separate wapsi when he returned to the police station. He has deposed that complainant/Victim met SI Rajpal at about 7:45 PM in front of Gopal Mandir. He has further deposed that the distance between Gopal Mandir and District park is about half State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.27 of 70 kilometer. According to the witness the complainant was with them and they reached District Park on foot. He has deposed that accused Rakesh was apprehended within 10 minutes of their reaching the District Park. He has further deposed that there was nobody in the park, hence the Investigating Officer SI Rajpal did not ask any public person to join the proceedings. According to the witness after the accused Rakesh was apprehended, Investigating Officer had made a request to 34 public persons to join the investigations but they refused. He is unable to tell the details of the public persons who had refused to join the investigations. According to the witness Investigating Officer did not gave any legal notice to any public person for refusal of joining. He has denied the suggestion that there was no occasion of joining public witness because no such incident of apprehension of Rakesh took place or that accused Rakesh was lifted from his jhuggie at D277, GP Block, Pitampura and thereafter taken to the police station where he was falsely shown as arrested from District park, Pitampura Delhi. He has further denied the suggestion that all documents were prepared while sitting in the Police Station and he merely signed the same on the asking of the senior officers or that the suggestion that the accused was compelled to sign blank papers which were later on converted into various memos only to connect the accused with the offence. He has State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.28 of 70 further denied the suggestion that accused Rakesh did not make any disclosure statement vide Ex.PW6/D or that the same was recorded by the Investigating Officer of his own.
(32) PW11 SI Rajpal Beniwal has deposed that on 02.03.2013 he was posted in Police Station Maurya Enclave and on that day the investigation of this case was assigned to him. He has further deposed that he had gone through the facts of the case and he reached at the house of complainant Bal Mukund. According to the witness thereafter he along with him reached the place of incident i.e District Park, Pitampura where he prepared the site plan of the place of incident at his instance and the same was Ex.PW11/A which bears his signatures at point A. He has further deposed that thereafter he along with the complainant returned to Police Station and after recording the statement of complainant he was led free. According to the witness on 25.03.2013 he along with Constable Ram Chand was in the area of Police Station Maurya Enclave and was present near Gopal Mandir. He has deposed that at about 7.45/8.00 pm, complainant Bal Mukund came to him near Gopal Mandir and informed him that the persons who had robbed him and caused injury were found coming towards District Park. According to the witness immediately, he along with complainant and Constable Ram Chand reached there i.e District Park. He has further State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.29 of 70 deposed that complainant pointed out towards three person out of which one person namely Rakesh was apprehended and other two managed to escape. According to the witness at the instance of complainant accused Rakesh was overpowered and he was interrogated and he was arrested vide memo Ex.PW6/B, his personal search was carried out vide memo Ex.PW6/C and his disclosure statement Ex.PW6/D. He has deposed that thereafter he along with accused and Constable returned the police station and accused was kept in lockup and he recorded the statement of Constable Ram Chand and complainant and they were let free. According to the witness on next day accused Rakesh was produced before court concerned from where he was sent to Judicial Custody. He has deposed that on 30.03.2013 he again during investigation along with Constable Sandeep apprehended the accused Sonu from Gate no. 3, DU Block, Pitampura at the instance of secret informer, who was wanted in the present case. According to the witness he was arrested vide memo Ex.PW7/A, his personal search was carried out vide memo Ex.PW7/B and his disclosure statement was recored vide Ex.PW7/C. He has deposed that thereafter accused Sonu got recovered two mobile phone and both the phones were converted into pullanda and were taken into possession vide memo Ex.PW7/E and thereafter accused Sonu pointed out the place of incident vide State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.30 of 70 pointing out memo Ex.PW7/D. He has further deposed that thereafter he along with accused and Constable returned the police station and he deposited the case property with MHC(M). He has further deposed that thereafter on next day, accused was produced before court concerned and his application for TIP was moved but during proceedings accused refused to join the TIP proceedings and ultimately he was sent to JC. (33) According to the witness again on 22.04.2013, he along with Constable Pradeep and informer told him that the third accused involved in the present matter namely Raman @ Firoz was roaming in District Park and on this information he along with secret informer and Constable Pradeep reached in District Park where at the instance of secret informer accused Raman @ Firoz was apprehended and he was interrogated and was arrested vide memo Ex.PW8/A, his personal search was carried out vide memo Ex.PW8/B and his disclosure statement was recorded vide Ex.PW8/C. He has further deposed that when the search of the accused Raman @ Firoz was carried out from the right pocket of his pant, a mobile phone make Alcatel was recovered and accused could not account for the possession of the said phone and disclosed that he had robbed the said mobile phone along with his other two associates from District Park. He has further deposed that the said phone was converted into pullanda and was sealed State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.31 of 70 with the seal of RP and was taken into possession vide memo already Ex.PW8/E which bears his signatures at point B. He has further deposed that thereafter accused Raman @ Firoz pointed out the place of incident vide pointing out memo already Ex.PW8/D which bears his (witness) signatures at point B. According to the witness thereafter he along with accused and case property returned to Police Station and he deposited the case property with MHCM. He has deposed that during investigation the accused Raman @ Firoz was tendered for judicial TIP during investigation but accused Raman refused to participate in the Judicial TIP. According to the witness, during investigation he recorded the statement of witnesses and after completion of investigation, he filed the charge sheet. He has correctly identified the both the mobile phones bearing IMEI No. 910040832233089 and mobile having IMEI no. 910040032233097 of spice of black color and VELL COM respectively. He has also identified the mobile phone Ex.P1 make Alcatel bearing IMEI no.860350011854187 which was recovered from accused Raman @ Firoz.
(34) In his crossexamination by Ld. Defence Counsel, he has deposed that he has admitted that at the time of arrest of all the accused i.e Rakesh, Sonu and Raman, no independent public witness was joined. He has further deposed that not many public persons were available in State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.32 of 70 the District Park or at DU Block and has voluntarily explained that when the accused was apprehended it was odd hours. According to the witness he reached at District Park, Pitampura at about 10:00 pm on 22.04.2013 and accused Raman was arrested from District Park at about 10.50 pm. He has admitted that there were people available at the DU Block and has voluntarily explained that none were ready to join. According to the witness he could not tell the names, addresses or details of the public persons whom he had asked to join but who had refused. He has deposed that he did not give any notice to the persons who had refused to join the investigation. He has further deposed that he has also not mentioned in any document including the case diaries regarding the refusal of the public persons to join the investigation. He has admitted that he did not get prepared any sketch of any suspects from the victim and that he did not show any photographs of the suspects from the dossiers maintained in the office for purposes of shortlisting the accused and has voluntarily explained that the previous Investigating Officer must have done it. He has deposed that the details regarding the physical appearance / features of the accused were mentioned in the tehrir, therefore, he did not make any specific enquiry about the same from the victim later on. He has further deposed that the information regarding his arrest was given to his brother Deepak State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.33 of 70 and about Rakesh to his father about Raman to his wife. He has denied the suggestion that all the accused Deepak, Rakesh and Raman were called to the police station by use of illegal force and thereafter detained and falsely implicated in the present case only to work out the same. According to the witness seal after use was handed over to Constable Pradeep at the time of recovery of mobile from the accused Raman. He has deposed that he had only sealed the phone of the complainant not the other phones. He has further deposed that he took the seal back from Ct. Pradeep after two or three days. He has deposed that no memo regarding handing over or returning was prepared. He has denied the suggestion that all the documentation regarding the arrest, personal search, disclosure, seizure memos etc. were done while sitting in the police station or that the accused were compelled to sign these blank documents which he converted into these memos later. He has further denied the suggestion that the accused Rakesh, Sonu and Raman did not make any disclosure regarding their involvement in the present case or that he recorded the same of his own. Witness has admitted that no weapon of offence was recovered. He has deposed that the scene of crime was not got photographed and has voluntarily explained that he was handed over the investigations after two months. Witness has admitted that as per the record the clothes of the victim were not seized State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.34 of 70 and that as per the record the first Investigating Officer did not lift any exhibits from the scene of crime and therefore no exhibits could be send to the FSL. He deposed that he was not aware if the victim himself was in a state of heavy intoxication and had consumed alcohol when the incident had taken place. After seeing the MLC Ex.PW5/A, the witness states that this fact does not find mention in the MLC. He has denied the suggestion that he could not find any independent eye witness and has voluntarily explained that after two months he could not find any eye witness. He has denied that the opinion on the MLC had been given by the doctor on his tutoring or that the mobile of the complainant was unofficially taken and planted upon the accused Raman only to connect him with the case. He has deposed that he did not collect the CDRs of the phone of the complainant. He has denied that he was deliberately concealing and withholding the CDRs of the alleged phone of the victim since it would have exposed the planting of the mobile phone bearing IMEI No. 910040832233089 and mobile having IMEI no. 910040032233097 of spice of black color and VELL COM upon the accused. He has further denied that the complainant had identified the accused Rakesh, Sonu and Raman on his tutoring and pointing out only to work out the present case or that he was deposing falsely. He has denied that he had kept himself the seal after use. State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.35 of 70 STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE:
(35) After completion of prosecution evidence the statement of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied.
According to the accused Rakesh @ Nipal he is innocent and was lifted from his house and falsely implicated in this case by the police. He has stated that he did not make any disclosure statement as alleged. (36) According to the accused Sonu @ Chhotu he is innocent and was lifted by the police from DU Block Pitampura and falsely implicated in this case. He has stated that the complainant has named him only on the asking of the police only to solve the present case. He has further stated that nothing was recovered from his possession nor he made any disclosure statement.
(37) According to the accused Raman @ Firoz he is innocent and was lifted from his house and falsely implicated in this case by the police. He has stated that the complainant has named him on the asking of the police to solve the present case.
(38) The accused have examined as many as two witnesses in defence. DW1 Nathu Ram is the father of accused Raman. He has deposed that he is residing on the given address for the last 20 years along with his family. According to him the name of his son is only State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.36 of 70 Raman and he is not known by any other names. He has placed on record the copy of ration card and the election ID Card showing his name as Raman are Ex.DW1/A and Ex.DW1/B respectively (OSR). According to the witness, first time when he came to the court he came to now that Raman has been named as Raman @ Firoj. He has deposed that nobody in the family, relation and the locality call him as Firoj. According to him Raman was doing the work of decorator in the marriages and used to earn about Rs.8000/ per month and on the date of alleged incident he (Raman) was at home and had not gone out. The witness has further deposed that Raman was lifted by the police from his house and has been falsely implicated in this case and the mobile phone has been planted upon him implicate him. According to the witness, he heard that the said mobile was recovered from some other person in the locality but was planted upon Raman. He has further deposed that on that day he was bed ridden as he had received injury. (39) In his cross examination by Ld. Addl. PP for the State, the witness has deposed that Raman is not involved in any other case. According to him previously in the present matter Raman had been taken twice to the police station but left. Witness has voluntarily explained that this time he was falsely implicated in this case after he was taken by the police officials from the house. Witness is unable to State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.37 of 70 tell the names of the police officials who took away his son and has voluntarily explained that he was at his work and his wife told him about the same when he returned. According to him, he made no complaint to the senior officer of the police or the courts regarding lifting and false implication of his son in this case. He has denied that his son is also known as Firoz by his friends and other persons in the area or that Raman was not lifted from the house as claimed by him or that being the father of Raman he is making a false deposition from saving him from penal consequences.
(40) DW2 Sita Devi is the mother of accused Rakesh and has deposed that she is residing on the given address for the last 27 years along with her family. According to the witness, date she does not recollect but it was three days prior to Holi in the year 2013 that two police officials one of whom was Sandeep came to her house and at that time her son Rakesh was taking a bath. The witness has deposed that the said police officials asked Rakesh to accompany them saying that he was called by Sahab and her son Rakesh accompanied them but later she came to know that Rakesh has been falsely implicated in this case. She has deposed that Rakesh used to work in a Tent House and some time he help his father in the work of Mistry.
(41) In her cross examination by Addl. PP for the State, the State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.38 of 70 witness has admitted that her son Rakesh was involved in many cases previously and police used to come frequently to their house and has voluntarily explained that it is only when his previous cases were pending when the police used to come. She has deposed that at the time when the police officials came to their house they were in uniform. She has further deposed that she did not make any PCR call when her son was lifted from their house nor she made any complaint to the senior officers or to the court when her son did not return. She has deposed that she is house wife and her family comprising of her husband, three sons and one daughter. She admits that neighbours also came to know when police came to her house and taken Rakesh away. Witness has denied that Rakesh was not lifted from the house as claimed by him or that being the mother of Rakesh she is making a false deposition from saving him from penal consequences.
FINDINGS:
(42) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. My findings are as under.
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.39 of 70 Ocular Evidence:
(43) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborates each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(44) In the present case the entire case of the prosecution is based upon the eye witness account given by the victim Kumar Bal Mukund (PW6) who has identified the accused persons and also proved the incident which had taken place with him. Here, I may observe that since the prosecution is placing its heavy reliance on the testimony of Kumar Bal Mukund (PW6), hence it is necessary for this Court to first determine whether what he has deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.40 of 70 Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court.
It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(45) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.41 of 70 to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(46) Applying the settled principles of law to the facts of the present case, I may observe that the victim Kumar Bal Mukund is aged 34 years and has received grievous injuries in the incident. He has identified all three accused in the court and has given clear account of the incident. The relevant portion of his testimony is reproduced as under:
"On 31.01.2013, I had gone to District park, Pitampura for walking in the evening at about 8.30 pm. While walking in the park, I was State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.42 of 70 talking on my mobile phone with my elder brother. Suddenly, three persons came out behind the bushes situated in the park from the left side. One of them asked me the time. On this aspect, I ignored him and I crossed him. Again he asked me about the time, he then abused me. At this stage, the witness has pointed out towards the accused Rakesh as the person who had asked him the time and abused him.
Thereafter I scolded him (usko daanta) on his behavior. Thereafter accused Raman present in the court took out a long knife which he was having. Accused Sonu was having a danda.
Third accused was not having any arm.
Thereafter accused Raman attacked on me with a bamboo stick (danda) (us time main sochne samajhne mein saksham nahi tha). Till then, I can not understand the situation. I was assaulted by Raman with a danda on my right arm and I got fractured as I felt. I requested them I was wrong and forgive me, but all the three accused persons were adamant. Thereafter accused Rakesh present in the court today correctly identified exhorted (is ko maar ke yahin gaad dete hain) and accused persons starting giving beatings to me with kicks and fists. In the meantime, due to beatings I got fractured on my left arm also.
Thereafter they targeted on my both the legs. I requested them that I have a minor kid having age of 6 months and I am newly married but they State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.43 of 70 did not pay any heed to my request and they continuously attacked on me with kicks and fists and with dandas. I was wearing jacket at that time and accused was continuously attacking on me with danda and intend to attack me with knife after covering my face with the cap or jacket but I was continuously requesting them to forgive / release me. I requested them whatever they want from me, they can take. I was severely injured and both of my hands were not working on account of the fracture. Both of my legs were also severely injured. Both the sides of my ribs were also severely injured due to injury inflicted by the accused.
Thereafter, accused persons took away my mobile phone and the currency which was in my purse were removed by the accused and thereafter the accused threatened me saying "
Seedha chala ja, Agar peeche muda to chaku maar ke gad denge". I was badly injured but I somehow mustered courage and came out of the park.
I want to add further that when the accused were removing money from my pocket the short accused i.e Raman (correctly identified) started moving the knife on my face threateningly.
I somehow managed to reach my house and from there I made a call to 100 number. Police came and I was taken to Munni Mai Ram State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.44 of 70 Hospital, Pitampura. Thereafter due to insufficient facility in that hospital, I was taken to MAX hospital where my statement was recorded. Same is Ex.PW6/A which bears my signatures at point A. I had shown the place of incident to the police on 2.03.2013 where site plan was prepared at my instance.
On 25.03.2013, I was moving near about my house. I saw the accused persons while going towards District Park. Thereafter I rushed towards police picket situated near Gopal Mandir and I informed SI Rajpal and Ct. Ram Chander who were present at the police picket and informed them. Thereafter I along with both the police officials went towards District Park, Pitampura for apprehension of accused persons.
Thereafter I pointed out towards the accused persons out of which two of them managed to escape and accused Rakesh present in the court today was apprehended and he was arrested vide memo Ex.PW6/B and his personal search was carried out vide memo Ex.PW6/C which bears my signatures at point A. Accused was interrogated by the IO SI Rajpal and he made the disclosure statement. Same is Ex.PW6/D which bears my signatures at point A. Thereafter accused took us to the place of incident where accused pointed out the place of incident while pointing out memo Ex.PW6/E which bears my signatures at point A. State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.45 of 70 Thereafter I was continuously in touch with the progress of my case and on 4.04.2013, I went to police station to know the progress of my case.
I saw one person i.e Sonu present in the court today was in the custody of the police and I identify him with one of the assailants and I identified him.
On 29.04.2013, I came to know that the third accused was also apprehended by the police in my case and I was called to participate in the judicial TIP in Rohini jail but I came to know that accused Raman, (third accused) refused to participate in judicial TIP.
During investigation, I came to know that my mobile phone make Alkatel was recovered which I had identified. I also handed over the original bill of my mobile phone to the IO. Same is Ex.PW6/F. I had taken the said phone on superdari and the same is brought by me today having IMEI No. 860350011854187. "
(47) In his crossexamination, Kumar Bal Mukund has explained that he is Science Graduate having Post Graduate Diploma in Business Administration. He has proved that he generally used to for walk at about 77:30 PM and at the time of incident he was alone in the park and was walking towards the gate when the incident had taken place. He has identified the accused Raman as the person who was carrying a knife which knife he had moved around his face while threatening him. State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.46 of 70 He has also identified the accused Sonu @ Chhotu as the person who was carrying a danda in his hand with which he had given repeated blows on him as a result of which he had received serious injuries on his arms and legs. He has further identified the accused Rakesh @ Nipal as the person who had first asked him a time and then abused him. He has also stated that it was Rakesh who exhorted saying is ko maar ke yahin gaad dete hain after which all the accused gave beatings to him. He has explained that his left arm got fractured after which the accused targeted his legs and the medical record confirms the same. (48) This witness has also proved the fear in which he was put while he was threatened and has explained that when the accused took away his articles, they threatened him saying seedha chala ja, agar peeche muda to chakumaar ke gad denge. He has identified the mobile recovered from the possession of accused Raman which mobile was having double SIM with Mobile Nos. 9718006817 & 8447744049 bearing IMEI No. 860350011854187 and 860350011854195 and is Ex.P1which was released to him on Supardrari.
(49) There is no reason to disbelieve the victim who was also injured in the incident. Dr. Shivani (PW5) has proved that the injures received by the victim were grievous in nature. She has also proved that when the victim was brought to the hospital, he had given history State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.47 of 70 of assault by three persons in the park. I may observe that during the incident, the victim had sufficient time to closely observe the assailants, there being sufficient light at the spot of the incident and also when he was caught and was being threatened by the assailants who then removed his belongings. It is this which confirms the incident and lends credibility and authenticity to the deposition of the victim Kumar Bal Mukund and impelling me to conclude that his statement is truthful having confirmed the incident at the first instance not only before the police but so also before the doctor who treated him that three persons were involved.
(50) The victim has further proved that after few days of the incident, he had seen the accused sitting in the park on which he again went to the Police Chowki and informed the police on which they rushed to the District Park and the accused Rakesh was then apprehended. Victim has proved his signatures on the arrest, personal search and disclosure statement of the accused Rakesh @ Nipal. He has also proved that he was continuously watching and following the progress of his case and one day when he went to the Police Station and saw one of the assailant sitting in the Police Station on which he came to know his name as Sonu and has identified him as one of the assailants. He has further proved that during investigations, he came to State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.48 of 70 know that the third assailants had been apprehended by the police pursuant to which he was called to participate in Judicial TIP of the said assailant in Rohini Courts but he came to know that the third assailant namely Raman refused to participate in the Judicial TIP. The victim has correctly identified the third assailant as the accused Raman in the court.
(51) Here I may observe that the accused Raman having refused to participate in the Judicial TIP, cannot take a benefit in the court for the same by now claiming that he was not identified by the victim at the first instance. I may also observe that the testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.:
Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye witness are natural witnesses and they could not have concocted a baseless case against accused. Merely because injured eyewitnesses are members of one family and close relatives of the deceased there is State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.49 of 70 no ground to reject their evidence. (Ref.: AIR 2003 SC 344). Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness has greater evidentiary value, unless compelling reasons exist to disbelieve the same.
(52) In the present case too the victim Bal Mukund is himself an injured which injuries have been duly proved by the doctor and there is no reason to disbelieve his version. The only defence raised by the accused Rakesh, Sonu and Raman that they have been falsely implicated after lifting their from their respective houses which does not cut much ice. They all have been specifically identified by the victim as the assailants and the specific roles attributed to them have also been duly explained and proved. The victim has no background / history of enmity with the accused persons and there is no reason why he would falsely implicate them on the asking of the police. The victim is an educated young man who used to go to the District Park daily in the evening for taking a walk. It is writ large from the modus operandi adopted by the accused that they first remained present in the park and finding no other person in the vicinity they tried to catch the attention of the victim and divert the same by asking him the time and than State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.50 of 70 threatened him and removed his belongings. The injuries which the victim received stand confirmed from his medical report and the FIR confirms the robbery of his mobile phone at first instance. When the witness Bal Mukund appeared in the court to depose, this court observed him to be an able bodied young man capable of taking on any person who tries to use force on him. The accused out numbered him and were armed and perhaps it is because of his resistance that they thrashed him first. Why will he falsely implicate the accused only on asking of the police for working out the case. The apprehension and arrest of Rakesh at his instance and recovery of stolen mobile from the possession of Raman puts an end to any doubt in this regard. This being the background, I hereby hold that all the three accused namely Rakesh @ Nipal, Raman @ Firoz and Sonu @ Chotu are liable for the offence under Section 392 read with Section 394 Indian Penal Code. (53) In so far as the allegations against the accused with regard to the use of deadly weapon is concerned, charge under Section 397 IPC has been settled only against the accused Sonu @ Chhotu and not against the others. It is for the first time in the Court that the victim Kumar Bal Mukund Singh has identified the accused Raman in the Court as the person who started moving the knife on his face threateningly whereas in this first statement to the Police he only stated State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.51 of 70 that one of the boy took out a knife and threatened him. (54) Here, I may observe that Section 397 IPC envisages that if at the time of robbery the offender uses any deadly weapon, the imprisonment with with such offender shall be punished shall not be less than seven years. Thus, what is essential to satisfy the word "uses"
for the purpose of this Section is that the robbery being committed by an offender, who was armed with a deadly weapon, which was within the vision of the victim, so as to be capable of creating terror in the mind of the victim. Knives are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result to death by their use. What would make a knife deadly is its design or the manner of its use such as it calculated to or is likely to produce death. This is a question of fact to be proved by the prosecution that the knife used by the offender was a deadly one. (Ref.: Ramu @ Raju Vs. State, Crl. Appeal No. 874/2009 and Crl. Appeal No. 4/2010, decided on 3.12.2010 by Hon'ble Mr. Justice A.K. Pathak.).
(55) There are no sharp edged injuries on the body of the victim and the only injuries on his body were caused by blunt object i.e. by use of danda. Ld. Counsel for the accused has vehemently argued that even the allegations against the accused under Section 397 IPC does not State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.52 of 70 stand established as Danda is not a dangerous weapon but it is pointed out by the Ld. Addl. PP for the State that the danda used by the accused Sonu was of such a nature which caused severe injuries including fracture of limbs of the victim thereby showing that it could have been used as a deadly weapon. I am in full agreement with the submissions made by the Ld. Addl. PP for the State that the danda so used by the accused Sonu @ Chhotu is a deadly weapon specifically keeping in view the nature of injuries caused to the victim.
(56) In this background, in so far as the accused Raman @ Firoz is concerned, benefit of doubt is being given to him for the offence under Section 397 IPC (though no specific charge under Section 397 IPC was settled against him). However, in so far as the accused Sonu @ Chhotu is concerned, he is liable for the offence under Section 397 Indian Penal Code.
Apprehension and Arrest of the Accused:
(57) The case of the prosecution is that the accused Rakesh @ Nipal had been apprehended at the instance of victim on 25.3.2013.
The victim has proved that on 25.3.013 while he was moving near his house he saw the accused persons going towards the District Park on which he went to the Police Chowki and informed the police, pursuant State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.53 of 70 to which he along with SI Rajpal and Ct. Ram Chander reached the District Park, Pitampura where he pointed out towards the accused persons and managed to apprehended one of them who revealed his name as Rakesh @ Nipal whereas two of them managed to flee. The victim has duly proved the apprehension, arrest, personal search of the accused Rakesh @ Nipal.
(58) In so far a the accused Sonu and Raman are concerned, their apprehension and arrest has also been proved by Ct. Sandeep (PW7), Ct. Pradeep (PW8) and SI Rajpal Singh (PW11). It is established that on 30.3.2013 at about 8:30 PM SI Raj Pal along with Ct. Sandeep were present at Imperial Dairy, LP Block they received a secret information that one Sonu who was involved in the present case had been seen in DU Block Pitampura on which they immediately went to DU Block where one boy was standing near Gate No. 3 and on pointing out of the secret informer they apprehended the said boy who disclosed his name as Sonu @ Chhotu and revealed his involvement in this case. The apprehension, arrest and recording of disclosure statement of accused Sonu @ Chhotu has been duly proved by Ct. Sandeep (PW7) and SI Rajpal Singh (PW11). They have also proved that Sonu thereafter got recovered to mobile phones from the jhuggi of his brother Deepak which he claimed that he had snatched in the District Park (however State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.54 of 70 these two mobiles were not relevant in the present case). Accused Sonu has been identified by the victim as one of the assailants who was carrying a danda with which he had given blows on his person. (59) In so far as the accused Raman is concerned, his apprehension, arrest and personal search has been duly proved by Ct. Pradeep (PW8) and SI Rajpal (PW11) who have proved that on 22.4.2013 they were on patrolling duty at about 10:15 PM on receipt of a secret information by SI Rajpal that the accused Raman wanted in the present case was seen in the District Park on which they immediately reached at District Park where on the pointing out of the secret informer one boy sitting in the park was apprehended who on inquiry disclosed his name as Raman @ Firoz. It is also established that during personal search of accused Raman @ Firoz one mobile phone make Alkatel of black colour was recovered from the right side pocket of his pant which mobile phone of checking was found the IMEI Numbers as 860350011854187 and 860350011854195 which mobile is Ex.P1 and has been duly identified by the complainant as the one which was stolen from his possession.
Recovery of the Mobile Phones:
(60) It is argued by the Ld. Defence Counsel that there was no theft of mobile phone and the said mobile phone has been planted upon State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.55 of 70 the accused Raman only to connect him with the offence and it is only for this reason that the call detail records have not been collected by the Investigating Officer and placed on record as it would have exposed this fact.
(61) I have considered the defence raised by the Ld. Counsel for the accused Raman but I am not convinced with this arguments for the simple reason that the rukka on the basis of which the FIR (Ex.PW2/B) was registered specifically discloses the fact regarding theft of the mobile phone make Alkatel double SIM No. 9718006817 and 8447744049. Had it been so that there was no theft of mobile or that it was planted, I am sure that the above details would have not been found mentioned in the rukka prepared on the statement of the victim at the first instance. The victim has also proved the documents of this mobile vide Ex.PW6/F which he had handed over to the Investigating Officer during investigations. It is this which defeats the arguments of Ld. Defence Counsel the mobile phone was never stolen or was planted upon the accused Raman to connect him with the case. On the other hand the evidence on record conclusively establishes that only the aspect of theft of this mobile phone Ex.P1 from the victim Bal Mukund but also establishes its recovery from the personal search of the accused Raman has been duly proved and established.
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.56 of 70 FINAL CONCLUSIONS:
(62) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(63) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.57 of 70 prepared in the present case have been substantially proved by the police witnesses including the Investigating Officers. ➢ That the identity of the accused Rakesh @ Nipal, Sonu @ Chhotu and Raman @ Firoz stands established and proved.
➢ That on 31.01.2013 at about 8:30 PM the victim Kumar Bal Mukund had, as usual gone for a walk at District Park, Pitampura when suddenly the accused Rakesh @ Nipal, Raman @ Firoz and Sonu @ Chhotu came from behind the bushes.
➢ That the accused Rakesh asked the victim Bal Mukund the time which he (victim) ignored but accused Rakesh again asked victim the time and also abused the victim who scolded Rakesh on his behavior.
➢ That the accused Raman was having a knife while the accused Sonu was having a danda ➢ The the accused Raman attacked and assaulted the victim with said danda on his right arm and thereafter the accused Rakesh exhorted Raman and Sonu to kill and throw him (victim) there itself and thereafter they continued giving beatings to the victim with danda, kicks and fists blows.
➢ That the victim requested the accused persons for mercy saying that he was newly married having a minor child of six months but State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.58 of 70 they did not pay any heed to his requests and continuously attacked on him with kicks, fists and with dandas.
➢ That the accused persons also intended to attack the victim with a knife after covering his face with the cap of jacket which he was wearing at that time on which the victim.
➢ That thereafter the accused persons removed the belongings of the victim including his mobile phone make Alkatel of black colour having IMEI No. 860350011854187 and 860350011854195 (Ex.P1) and thereafter they went away while threatening the victim by saying "Seedha chala ja, Agar peeche muda to chaku maar ke gad denge".
➢ That the victim who was badly injured, somehow managed to reach his house and made a call to 100 number pursuant to which the police came and took him to the Munni Maya Ram Hospital and thereafter was shifted to MAX Hospital where his statement was recorded by the police.
➢ That the injuries inflicted by the accused persons on the person of the victim Bal Mukund have been opined to be as 'grievous' in nature.
➢ That the apprehension and the arrest of all three accused stand established and proved in accordance with law.
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.59 of 70 ➢ That the recovery of the stolen mobile i.e. having double SIM with Mobile Nos. 9718006817 and 8447744049 IMEI No. 860350011854187 and 860350011854195 from the possession of accused Raman @ Firoz stands established and proved and duly identified by the victim in the court.
(64) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. I do not find any substance in the grounds raised by the Ld. Defence Counsels.
(65) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.60 of 70 not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(66) In view of my above discussion, the accused Rakesh @ Nipal and Raman @ Fioroz are hereby held guilty for the offence under Section 392 read with Section 394 Indian Penal Code. Further the accused Sonu @ Chhotu is been held guilty for the offence under Section 392 read with Section 394 read with Section 397 Indian Penal Code. All the accused are accordingly convicted. (67) Be listed for arguments on sentence on 6.1.2014.
Announced in the open Court (Dr. KAMINI LAU) Dated: 03.01.2014 ASJ (NW)II: ROHINI
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.61 of 70 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI Sessions Case No. 125/2013 Unique Case ID: 02404R0147582013 State Vs. 1) Rakesh @ Nipal S/o Sh. Lala Ram R/o D277, GP Block, Pitampura, Delhi.
(Convicted)
2) Sonu @ Chhotu S/o Late Sh. Bindeshwar R/o Vill. Mirjapur, Bawan Tolla PS : Birol, Distt.: Darbanga, Bihar (Convicted)
3) Raman @ Firoz S/o Sh. Nathu Ram R/o Jhuggi No. 55/195, Shalimar Bagh, Delhi.
(Convicted)
FIR No. : 40/2013
Police Station : Maurya Enclave
Under Section : 394/397/34 Indian Penal Code
Date of conviction : 03.01.2014
Arguments concluded on : 10.01.2014
Date of Sentence : 13.01.2014
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.62 of 70 APPEARANCE:
Present: Sh. Shiv Kumar, Addl. Public Prosecutor for the State.
Convicts Rakesh @ Nipal, Sonu @ Chhotu and Raman @ Firoz in Judicial Custody with Sh. Abhishek Kaushik and Sh. Manish Kumar, Advocate / Amicus Curiae.
ORDER ON SENTENCE:
(1) As per the allegations on 31.01.2013 at about 8:35 PM at District Park, Pitampura, Delhi, the accused Rakesh @ Nipal, Sonu @ Chhotu and Raman @ Feroz, in furtherance of their common intention, committed robbery of the mobile phone make Alkatel with double SIM with Mobile No. 9718006817 and 8447744049 from the possession of the complainant Bal Mukund. It is further alleged that while committing the robbery the accused persons also gave beatings to the complainant with dandas and leg and fist blows and caused grievous hurt on his person. It if also alleged that during the commission of the offence of robbery, the accused Sonu @ Chhotu used a deadly weapon i.e. knife. (2) However, on the basis of the testimonies of various witnesses examined by the prosecution and other material which has come on record, this court vide a detailed judgment dated 03.01.2014 has held that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.63 of 70 including the Investigating Officers. Vide a detailed judgment, this court has observed that the identity of the accused Rakesh @ Nipal, Sonu @ Chhotu and Raman @ Firoz stands established and proved;
that on 31.01.2013 at about 8:30 PM the victim Kumar Bal Mukund had, as usual gone for a walk at District Park, Pitampura when suddenly the accused Rakesh @ Nipal, Raman @ Firoz and Sonu @ Chhotu came from behind the bushes; that the accused Rakesh asked the victim Bal Mukund the time which he (victim) ignored but accused Rakesh again asked victim the time and also abused the victim who scolded Rakesh on his behavior; that the accused Raman was having a knife while the accused Sonu was having a danda; the the accused Raman attacked and assaulted the victim with said danda on his right arm and thereafter the accused Rakesh exhorted Raman and Sonu to kill and throw him (victim) there itself and thereafter they continued giving beatings to the victim with danda, kicks and fists blows; that the victim requested the accused persons for mercy saying that he was newly married having a minor child of six months but they did not pay any heed to his requests and continuously attacked on him with kicks, fists and with dandas; that the accused persons also intended to attack the victim with a knife after covering his face with the cap of jacket which he was wearing at that time on which the victim; that thereafter the State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.64 of 70 accused persons removed the belongings of the victim including his mobile phone make Alkatel of black colour having IMEI No. 860350011854187 and 860350011854195 (Ex.P1) and thereafter they went away while threatening the victim by saying "Seedha chala ja, Agar peeche muda to chaku maar ke gad denge"; that the victim who was badly injured, somehow managed to reach his house and made a call to 100 number pursuant to which the police came and took him to the Munni Maya Ram Hospital and thereafter was shifted to MAX Hospital where his statement was recorded by the police; that the injuries inflicted by the accused persons on the person of the victim Bal Mukund have been opined to be as 'grievous' in nature; that the apprehension and the arrest of all three accused stand established and proved in accordance with law; that the recovery of the stolen mobile i.e. having double SIM with Mobile Nos. 9718006817 and 8447744049 IMEI No. 860350011854187 and 860350011854195 from the possession of accused Raman @ Firoz stands established and proved and duly identified by the victim in the court.
(3) In view of the above discussions, the accused Rakesh @ Nipal and Raman @ Fioroz have been held guilty for the offence under Section 392 read with Section 394 Indian Penal Code whereas in so far as the accused Sonu @ Chhotu is concerned, he has been held State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.65 of 70 guilty for the offence under Section 392 read with Section 394 read with 397 Indian Penal Code.
(4) I have heard arguments on the point of sentence. The convict Rakesh @ Nipal is stated to be a young boy of 24 years, unmarried having a family comprising of father, mother, two younger brothers and one younger sister. He has studied upto class 5th and is a labour by profession. Apart from the present case, he is also involved in three other cases i.e. FIR No. 474/09 PS Maurya Enclave under Section 160 IPC, FIR 339/05 PS Shalimar Bagh under Section 399/402 IPC & 25/54/59 Arms Act and FIR No. 659/03 PS Shalimar Bagh under Section 309 IPC.
(5) The convict Sonu @ Firoz is stated to be a young boy of 24 years, married having a family comprising of mother (widow), three elder brothers, one elder sister, wife and one daughter. He has studied upto class 4th and is labour by profession. He is stated to be first offender not involved in any other case.
(6) The convict Raman @ Chhotu is stated to be a young boy of 22 years, unmarried having a family comprising of father and mother. He has studied upto class 3rd and is labour by profession. He is stated to be first offender not involved in any other case.
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.66 of 70 (7) The Ld. Defence Counsels for the convicts submit that keeping in view the young age and family background of the convicts, a lenient view be taken against them. On the other hand the Ld. Addl. PP for the State has prayed for a stern view against the convicts keeping in view the nature of allegations involved.
(8) I have considered the rival contentions. I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. In the year 2012 alone, a total number of 54,287 cases were registered out of which 608 cases were of robbery; 28 cases were of Dacoity, 14,391 cases were of vehicular theft; 1,440 cases were of snatching and 521 cases were of murder.
(9) The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Trigger friendly criminals unhesitatingly and indiscriminately use dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The courts State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.67 of 70 are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
(10) There was no previous animosity between the convicts and the victim and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.68 of 70 (11) Therefore, keeping in view the above and the desirability and need to keep the convicts out of circulation, I hereby award the following punishment to them.
(12) The convict Rakesh @ Nipal is sentenced to Rigorous Imprisonment for a period of Seven (07) Years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Seven Days. (13) The convict Sonu @ Chhotu is sentenced to Rigorous Imprisonment for a period of Seven (07) Years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with Section 394 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Seven Days.
(14) The convict Raman @ Firoz is sentenced to Rigorous Imprisonment for a period of Seven (07) Years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Seven Days. State Vs. Rakesh @ Nipal etc., FIR No. 40/2013, Police Station : Maurya Enclave Page No.69 of 70 (15) Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules. (16) The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(17) One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
(18) File be consigned to Record Room. Announced in the open Court (Dr. KAMINI LAU) Dated: 13.01.2014 ASJ (NW)II: ROHINI
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