Delhi District Court
State vs 1. Abbas on 18 August, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.27/2014
Unique Case ID No. 321/2016
FIR No.16/2014
U/S: 392/397/411/34 IPC
P.S: Farsh Bazar
State Versus 1. Abbas
S/o. Naseer
R/o. Jhuggi No.B293, NSA Colony,
Vishwas Nagar, Delhi32.
2. Mustkeem
S/o. Munna
R/o. Jhuggi No. D260, NSA Colony,
Vishwas Nagar, Shahdara, Delhi32.
Date of Institution : 26.04.2014
Date of Arguments : 26.07.2018
Date of Judgment : 18.08.2018
FIR No.16/14, PS. Farsh Bazar Page 1 of 13 St. Vs. Abbas etc.
J U D G M E N T
Case of Prosecution
1.Criminal law was set into motion on 05.01.2014 at 10.48 pm, on receiving an information regarding snatching of money and mobile phone behind Karkardooma Court, which was recorded vide DD No. 38A pursuant to which HC Nadir Khan alongwith Ct. Omvir Singh reached at D Block, NSA Colony, behind Karkardooma Court Main Road, where complainant Kundan Kumar met them. He informed that two boys after putting an Ustara on his neck forcibly snatched his purse and mobile phone and ran away towards Jhuggies in front of NSA colony. Thereafter, HC Nadir Khan alongwith Ct. Omvir and complainant started making search of accused persons in Jhuggies of NSA Colony and in a park they found two boys sitting in the corner and they were apprehended at the instance of complainant. On interrogation, from possession of accused Abbas robbed purse of complainant containing Rs.1,850/, one Driving License and some papers and from possession of accused Mustkeem mobile phone make Lava of complainant and one Ustara used in the commission of offence, were recovered. Further investigation was carried out and after completion of FIR No.16/14, PS. Farsh Bazar Page 2 of 13 St. Vs. Abbas etc. investigation, chargesheet was filed before the Court U/s. 392/397/411//34 IPC.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused, and as offence punishable u/s. 397 IPC is triable by the Court of Sessions, present case was committed to Sessions Court.
Charge framed against the accused persons
3. Charge u/s. 392/34 IPC was framed against both the accused.
Separate charge u/s.397 IPC was also framed against accused Mustkeem. Both the accused pleaded not guilty and claimed trial.
Witnesses examined
4. Prosecution examined 8 witnesses to prove its case. The brief summary of the deposition of Prosecution Witnesses is as under:
5. PW1 is ASI Veerpal Singh, who on the intervening night of 05/06.01.2014 was posted as Duty Officer at PS Farsh Bazar. He proved the copy of FIR as Ex.PW1/A and his endorsement on the rukka as Ex.PW1/B. FIR No.16/14, PS. Farsh Bazar Page 3 of 13 St. Vs. Abbas etc.
6. PW2 is Sh. Kundan Kumar complainant, who deposed that on 05.01.2014 at about 10.30 pm, he was returning to his room at Jwala Nagar on foot and when he reached near MCD office at NSA Colony, two boys came from the side of Jhuggies, one of them put an Ustara on his neck and asked him to hand over whatever he was having and the second boy took out his phone make Lava having Sim No. 9136593990 and a brown colour purse containing his DL, Rs.1,850/ cash and photocopies of certain documents and thereafter, they both ran away towards the Jhuggies. PW2 deposed that he made a call at 100 number and informed the police officials about the incident and that those boys had run away towards Jhuggies. PW 2 deposed that he accompanied the police to Jhuggies NSA Colony in search of those two boys and at the corner of park he saw both the said boys distributing the booty. PW2 deposed that on seeing them, they both tried to run away but were apprehended and their names were revealed as Mustkeem and Abbas. PW2 deposed that accused Mustkeem had put an Ustara on his neck while Abbas had taken out his mobile phone and purse from his pocket. He proved his complaint as Ex.PW2/A and identified the robbed case property as well as Ustara.
In his crossexamination, he confirmed that he was alone when the police officials came at the spot but lots of public persons gathered after the accused were apprehended. He further confirmed that the park was surrounded by boundary wall of 2 ½ feet.
FIR No.16/14, PS. Farsh Bazar Page 4 of 13 St. Vs. Abbas etc.
7. PW3 is ASI Kartar Singh, who received the PCR call regarding snatching of cash and mobile phone behind Karkardooma Courts and recorded DD No.38A. He proved the said DD as Ex.PW3/A.
8. PW4 is Ct. Omvir, who alongwith HC Nadir Khan reached at the spot and in whose presence, both accused were apprehended and robbed articles as well as Ustara were recovered and seized. He also got the case FIR registered and came back to the spot alongwith copy of FIR.
9. PW5 is HC Gajraj Singh, who was posted as Incharge of ERV3 on the intervening night of 05/06.01.2014. He deposed that at about 11 pm, on receipt of information, he went to the spot and thereafter, took both the accused to Hedgewar Hospital in the ERV3 for their medical examination.
10. PW6 is HC Raj Kumar, who was posted as MHC(M) at PS Farsh Bazar and proved the relevant entry in register no.19 regarding deposit of case property as Ex.PW6/A. FIR No.16/14, PS. Farsh Bazar Page 5 of 13 St. Vs. Abbas etc.
11. PW7 is HC Nadir Khan, who pursuant to DD No.38A alongwith PW4 reached at the spot. PW7 is the initial investigating officer, who deposed about the arrest of the accused persons and recovery of robbed articles and Ustara from their possession. He also proved the arrest memos, seizure memo and other memos prepared at the spot.
12. PW8 is SI Sudhir Kumar, to whom the investigation was entrusted after registration of FIR. He deposed that HC Nadir Khan handed over him three sealed parcels containing robbed property i.e Purse, Mobile phone and Ustara. He also took into the possession the purchase bill of mobile phone from complainant and seized the same vide memo Ex.PW2/E. He also proved the arrest and personal search memos of the accused persons.
Statement and defence of accused persons
13. Statement of both the accused persons was recorded u/s.313 Cr.P.C., wherein they denied the case of prosecution and claimed themselves innocent. They did not lead any defence evidence.
FIR No.16/14, PS. Farsh Bazar Page 6 of 13 St. Vs. Abbas etc. Arguments and conclusion
14. Arguments have been advanced by Sh. K.P.Singh, Ld. Addl. PP for the State as also by Sh. Ishwar Singh, Ld. Counsel for accused Abbas and Sh. Sushil Sharma, Ld.Amicus Curiae for accused Mustkeem.
15. Ld. Addl. PP for the State has argued that complainant as well as other material witnesses have proved the case of prosecution beyond reasonable doubt. It has been further submitted that both the accused were apprehended at the instance of complainant and robbed articles were recovered from their possession.
16. Per contra, Ld. Defence Counsel for accused Abbas argued that alleged recovery is planted one and that accused Abbas was lifted from his house while he was sleeping. Sh. Sushil Sharma, Ld.Amicus Curiae for accused Mustkeem argued that as per site plan Ex.PW7/B, place of arrest is shown inside the park while in arrest memo it is shown on the main road. Ld. Amicus Curiae further pointed out that as per complainant, police was not in uniform while PW4 Ct. Omvir deposed that they were in uniform. Ld. Amicus Curiae further argued that no public witness joined the investigation at the time of arrest or alleged recovery from the possession of FIR No.16/14, PS. Farsh Bazar Page 7 of 13 St. Vs. Abbas etc. accused persons and that PW8 SI Sudhir Kumar has not investigated the case in proper manner.
17. Complainant i.e PW2 Kundan Kumar is the star witness of the prosecution. He deposed about the entire incident in cogent manner and pointed out specific role of both the accused. As per testimony of PW2 on 05.01.2014 at about 10.30 pm, he was returning to his room at Jwala Nagar on foot and when he reached near MCD office at NSA Colony, two boys came from the side of Jhuggies, one of them put an Ustara on his neck and asked him to hand over whatever he was having and the second boy took out his phone make Lava having Sim No. 9136593990 and a brown colour purse containing his Driving License, Rs.1,850/ cash and photocopies of certain documents and thereafter, they both ran away towards the Jhuggies. Both the accused were apprehended on the identification of complainant and robbed case property alongwith Ustara was recovered from their possession. The testimony of complainant appears to be reliable and trustworthy on all the aspects except the one that he became confused on the point that his mobile phone was also recovered from the possession of accused Mustkeem alongwith Ustara. He was crossexamined by Ld. Defence Counsel at length but nothing which may diminish the evidentiary value of his testimony came on record. His testimony suffers from no blemish at all. Reliance is placed upon the judgment of Hon'ble FIR No.16/14, PS. Farsh Bazar Page 8 of 13 St. Vs. Abbas etc. Supreme Court in AIR 2012 SC 3157, Rai Sandeep @ Deepu vs State of NCT of Delhi with Hari Singh v State of NCT of Delhi, wherein while laying down the quality of a witness, Hon'ble Court held as under:
' "Sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be more relevant would be the consistency of the statement right from the time when the witness makes the initial statement and ultimately before the Court.....The witness should be in a position to withstand the cross examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of occurrence, the person involved, as well as, the sequence of it...It should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of the circumstances, to hold the accused guilty of the offence alleged against him. ...To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant material namely, oral documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve."
FIR No.16/14, PS. Farsh Bazar Page 9 of 13 St. Vs. Abbas etc. PW2 has specifically deposed about the individual role of both the accused in the commission of offence in a cogent manner. PW2 appears to be a witness of very high quality on the basis of whose testimony alone conviction can be based.
18. First plea of Ld. Amicus Curiae for accused Mustkeem is that as per site plan Ex.PW7/B, the place of arrest is shown at point B i.e a corner of the park but in arrest memo Ex.PW7/C, the place of arrest is shown as NSA colony, D Block, Main Road, Vishwas Nagar, which creates a doubt regarding the place of arrest of the accused persons. In this regard, perusal of Ex.PW7/B shows that same was prepared by PW7 HC Nadir Khan, who reached at the spot pursuant to DD No.38A and arrest memos of the accused persons were prepared by PW8 SI Sudhir Kumar to whom investigation was later on handed over after registration of case FIR.
Complainant has specifically deposed that he accompanied the police officials to NSA Colony Jhuggies and at the corner of the park he saw both the accused sitting and distributing the booty. Thus, place of apprehension of both the accused by PW7 HC Nadir Khan at the instance of complainant is a corner of the park. It is admitted by PW8 SI Sudhir Kumar that he had not personally visited the place, where the accused persons were apprehended by HC Nadir Khan and complainant. It appears that since PW8 SI Sudhir Kumar reached at the spot after receiving the copy of FIR FIR No.16/14, PS. Farsh Bazar Page 10 of 13 St. Vs. Abbas etc. and rukka, where HC Nadir Khan had produced both the accused, therefore, he mentioned the place of arrest as Main Road, NSA Colony i.e the same colony from a park of which both the accused were apprehended. No evidence is led to show that accused Abbas was arrested from his house while he was sleeping. Whether all the police officials were in uniform or not when they reached at the spot is not an issue of such vital importance, which may demolish the case of prosecution. In this regard, I am guided by the Judgment of Appabhai and another Vs. State of Gujarat AIR 1988 Supreme Court 696, wherein the Hon'ble Court held that court while appreciating the evidence, must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory maybe given due allowance. It was further held therein that when a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
19. Ld. Defence Counsel argued that no public witness joined the investigation at the time of arrest of accused persons or recovery of robbed case property. PW2 Sh. Kundan Kumarcomplainant deposed that the FIR No.16/14, PS. Farsh Bazar Page 11 of 13 St. Vs. Abbas etc. passersby had left the spot when he made call to the police and further admitted that number of people were residing in the said jhuggies but no public person collected there on seeing the police and that they remained at the spot till 3.15 am. In this regard, reliance is placed upon the judgment of Hon'ble Supreme Court in Karamjit Singh Vs State( Delhi Administration) AIR 2003SC1311, wherein it was held:
" the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as from of other persons and it is not proper judicial approach to distrust and suspect them without good grounds."
20. PW2 Complainant had also produced purchase bill of robbed mobile phone i.e Ex.PW2/E. He deposed about the specific role of both the accused while deposing that accused Mustkeem had put Ustara on his neck and accused Abbas had taken out his mobile phone and purse from his pocket. He identified his purse containing his original Driving License as well as some documents and the Ustara, which was used by accused while committing robbery as Ex.P4. In view of above, prosecution has FIR No.16/14, PS. Farsh Bazar Page 12 of 13 St. Vs. Abbas etc. successfully proved that both the accused in furtherance of their common intention robbed the complainant. It has also been proved that accused Mustkeem used an Ustara while committing the robbery, therefore, ingredients of section 397 IPC are also attracted against accused Mustkeem as he used the deadly weapon while commission of offence. Accordingly, both the accused are held guilty and convicted for offence punishable u/s. 392/34 IPC and accused Mustkeem is also held guilty u/s. 397 IPC.
SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR MALHOTRA Announced in the open court Location: Karkardooma Courts, Delhi Date: 2018.08.18 16:24:15 +0530 on 18.08.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi FIR No.16/14, PS. Farsh Bazar Page 13 of 13 St. Vs. Abbas etc.