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Delhi District Court

State vs Bijender Kumar on 23 December, 2019

         IN THE COURT OF SHRI KULDEEP NARAYAN
              ADDITIONAL SESSIONS JUDGE ­04
           EAST: KARKARDOOMA COURTS: DELHI

SC No. 243/2017
FIR No. 48/2017
U/s. 394/411/34 IPC
P.S Mandawali

                                 State

                                 versus

                                 Bijender Kumar,
                                 S/o Sh. Atma Ram,
                                 R/o B­28, Gali No. 2,
                                 Ganesh Nagar, Shakarpur,
                                 Delhi­92.

Date of Institution          :     15.04.2017
Date of reserving Judgment   :     12.12.2019
Date of pronouncement        :     23.12.2019

Appearances
For the State                :     Shri. Ajit Kumar Shrivastava,
                                   Additional Public Prosecutor.
For accused persons          :     Shri C.S.Tyagi, Legal Aid
                                   Counsel.

JUDGMENT

Sessions CaseNo 243/2017 . Page 1/15

1. The accused Bijender Kumar son of Atma Ram was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e charge­sheet, submitted on 06.04.2017 upon conclusion of investigation into First Information Report (FIR) no. 48/2017 of police station (PS) Mandawali for the offences punishable under Section 397/411 of the Indian Penal Code, 1860 (IPC).

Prosecution Version

2. The prosecution story, in brief, is that on 06.02.2017, at about 05.00 a.m., at Gali No. 6, near D­125, South Ganesh Nagar, Delhi, the accused alongwith an unknown associate in furtherance of their common intention on the point of a knife robbed the bag containing Rs. 3,000/­ and clothes belonging to the complainant Ankit Awasthi.

3. As per the charge­sheet, the present FIR No.48/2017 under Section 394/411/34 IPC was registered on 06.02.2017 on the complaint of Ankit Awasthi, who stated that he was permanent resident of Village Kherva Nizamabad, P.O. Shah Jalalpur, Tehsil & Distt. Sitapur, UP, and since the last eight months he was residing on rent at A­97, Gali No. 6, South Ganesh Nagar, Delhi. On 06.02.2017 he was returning from his native village and at Anand Vihar Bus Stand he boarded an auto and after getting down from the auto at Ganesh Nagar Chowk, he was going on foot towards his room situated at Sessions CaseNo 243/2017 . Page 2/15 South Ganesh Nagar and when he had taken a turn in Gali No. 6, suddenly someone caught him by his face from behind and another man tried to snatch his bag from his shoulder. When he did not loose his bag, the man who tried to snatch the same, took out a knife and put the same on his abdomen and after snatching his bag they tried to run away from the spot. It was around 04.30 or 05.00 am. He raised alarm and with the help of people he managed to apprehend one of the boy while another boy managed to escape from the spot with his snatched bag. In the meantime, police reached there and took him in police vehicle towards the direction in which another boy had run away. On the way, near Shakarpur on road side, he found his bag lying but his clothes and Rs. 3000/­ were missing from the bag.

4. The investigation of the case was handed over to Sub­Inspector (SI) Pawan Kumar, the Investigation Officer (IO). During investigation, I.O. recorded the statement of the witnesses, prepared the site plan and arrested the accused

5. During investigation on 18.02.2017, ASI Raghuraj informed the IO that he arrested one Pankaj u/s 41.1D Cr.P.C., who disclosed about his involvement with accused Bijender in the instant case and thereafter IO arrested Pankaj but he could not be identified by the complainant in judicial TIP and as such accused Pankaj was released in the instant case. After concluding the investigation, the I.O. came to Sessions CaseNo 243/2017 . Page 3/15 a conclusion that sufficient evidence were collected against the accused Bijender Kumar qua commission of offences under Section 397/411 IPC. Thereafter, IO prepared charge­sheet and filed in the court on 06.04.2017.

6. On the basis of charge­sheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of offences under Section 397/411 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 11.04.2017 committed the case to the Court of Session for 15.04.2017.

Charge

7. On 27.09.2017, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused, charge was framed against the accused Bijender Kumar for commission of offences punishable under Section 392/34 IPC read with section 397 IPC. Charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.

Prosecution Witnesses

8. To bring home the afore­mentioned charge to the accused, the prosecution got examined Ankit Awasthi (PW­1), ASI Anil Kumar Sessions CaseNo 243/2017 . Page 4/15 (PW­2), ASI Mahesh Chand (PW­3), Ct. Ravish (PW­4) and SI Pawan Kumar (PW­5).

Documentary Evidence

9. The prosecution also relied on following documents tendered into evidence i.e. statement of complainant Ankit Awasthi (Ex. PW1/A), sketch of the knife (Ex. PW1/B), seizure memo of knife (Ex. PW1/C), seizure memo of empty bag of complainant (Ex. PW1/D), arrest memo of accused Bijender Kumar (Ex. PW1/E), personal search memo of accused Bijender Kumar (Ex. PW1/F & Ex. PW4/A), disclosure statement of accused (Ex. PW1/G), copy of FIR (Ex. PW2/A), endorsement on the rukka (Ex. PW2/B), certificate u/s 65B of Indian Evidence Act (Ex. PW2/C), copy of entry in register no. 19 at Serial No. 72 (Ex. PW3/A), copy of DD No. 10A dated 06.02.2017 (Ex. PW5/A), rukka (Ex. PW5/B), site plan (Ex. PW5/C) and application moved by IO seeking PC remand of accused Bijender Kumar (Ex. PW5/D).

Statement of accused

10. After conclusion of prosecution evidence, on 02.12.2019, statement of the accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him.

Sessions CaseNo 243/2017 . Page 5/15

11. Accused further stated that he has been falsely implicated in this case. He did not lead any evidence in his defence.

Final Arguments

12. I heard the arguments advanced by Sh. Ajit Kumar Shrivastava, learned Additional Public Prosecutor for the State, and Sh. C.S.Tyagi, learned Legal Aid Counsel for the accused. I also perused the entire material available on record.

13. During the course of arguments, learned Additional Public Prosecutor for State submitted that the complainant has fully supported the prosecution story and also correctly identified the accused as well as the recovered knife before the court. There are no material contradictions in the testimonies of prosecution witnesses and therefore, prosecution succeeded in proving its case against the accused beyond reasonable doubts.

14. Per contra, Sh. C.S.Tyagi, learned LAC for the accused argued that accused was lifted from his house and has been falsely implicated in this case. Further, besides complainant/victims Ankit Awasthi (PW1), prosecution failed to examine any other public witness in support of its case despite the fact that as per prosecution story itself, complainant apprehended the accused at the spot itself with the help of public persons. Ld. Counsel for accused lastly argued that the Sessions CaseNo 243/2017 . Page 6/15 prosecution failed to establish its case beyond all reasonable doubts and accused deserves acquittal.

15. I have given my thoughtful consideration to the submissions of both sides.

16. In the case in hand, accused has been charged with commission of offences punishable u/s 392/397/34 IPC. Section 392 IPC is reproduced as under for ready reference :

392. Punishment for robbery.­ Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.

17. Further, section 397 IPC is reproduced as under for ready reference :

397. Robbery, or dacoity, with attempt to cause death or grievous hurt.­ If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to Sessions CaseNo 243/2017 . Page 7/15 any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

Points for Determination

18. In view of the above­mentioned provisions of law and the submissions advanced on both sides, following points for determination are emerging in the present case :­

1. Whether on 06.02.2017, at about 5.00 am, a robbery was committed upon complainant Ankit Awasthi at Gali No. 6, near D­125, South Ganesh Nagar, Delhi ?

2. If so, whether the said robbery was committed by the accused alongwith his unknown associate ?

3. If so, whether during the said robbery, accused Bijender Kumar used a deadly weapon i.e., knife ?

Testimonies of Prosecution Witnesses

19. In all, five witnesses were got examined by the prosecution. For the sake of convenience, the testimonies of all the prosecution witnesses are referred in a tabular form hereunder:

S.No Name of Nature of Testimony Documentary of PW PW Evidence PW­1 Ankit Deposed that on 06.02.2017 at Ex. PW1/A, Awasthi about 04.30/05.00 am when he Ex. PW1/B, Sessions CaseNo 243/2017 . Page 8/15 turned towards the gali near Ex. PW1/C, his house at South Ganesh Ex. PW1/D, Nagar, two persons came from Ex. PW1/E, behind and put a cloth on his Ex. PW1/F & face and tried to snatch his bag Ex. PW1/G. but when where was a scuffle between him and assailants, one of the assailant took out a knife and placed on his abdomen and then one of assailant ran away with the bag containing morning kit, three pairs of clothes and cash of about Rs. 3000/­. Accused Bijender Kumar also tried to run away from the spot but he caught the accused from behind. Accused and one knife, which was recovered from the spot, were handed over to the police. He deposed that his empty bag was recovered at the instantce of accused.

PW­2 ASI Anil Deposed about registration of Ex. PW2/A, Kumar FIR, his endorsement on the Ex. PW2/B, (Duty rukka, issuance of certificate Ex. PW2/C & Officer) u/s 65B of Indian Evidence Ex. PW5/A Act and recording of DD No. 10A dated 06.02.2017.

PW­3 ASI Mahesh Proved the entry no. 72 in Ex.PW3­/A Chand register no. 19.

(MHCM) Sessions CaseNo 243/2017 . Page 9/15 PW­4 Ct. Ravish Deposed about investigation Ex. PW4/A & conducted by IO. He deposed Ex. PW4/B that on 06.02.2017 on receiving DD No. 10A at about 05.00 am he alongwith IO reached at the spot, where complainant Ankit Awasthi produced accused Bijender, one grey colour bag and one knife before IO. IO recorded statement of complainant Ankit Awasthi, prepared rukka and he took the rukka PS and got the FIR recorded. He went back at the spot and handed over copy of FIR and ruka to IO. IO arrested accused, recorded his disclosure statement, sezied knife after preparing its sketch. IO also seized bag.

PW­5 SI Pawan Deposed about the Ex. PW5/A , Kumar investigation. Ex.PW5/B, (Investigatio Ex. PW5/C & n Officer) Ex. PW5/D. ANALYSIS :

20. To bring home the charge to the accused, the prosecution got examined 5 prosecution witnesses. The case of the prosecution is predicated upon the testimony of PW1 Ankit Awasthi who deposed that on 06.02.2017, he had returned to Delhi from his native place Sitapur and had taken an auto rickshaw from Anand Vihar Bus stand Sessions CaseNo 243/2017 . Page 10/15 at about 4.15 a.m for going to Ganesh Chowk. Further after reaching Ganesh Chowk, he got down from the auto rickshaw and started walking towards his flat. PW1 further deposed that at about 4.30­5.00 a.m, as soon as he had turned towards the street, two persons came from behind, put a cloth on his face and tried to snatch his bag. An scuffle occurred between the assailants and PW1 and one of the assailants asked the other to take out a knife, consequent upon which, the other person took out a knife and placed it on his abdomen.

Further, PW1 left his bag out of fear and one of the assailants ran away with the bag. The accused also tried to run away but PW1 caught him from behind while raising noise. Meanwhile, some persons from the street also arrived there and they also apprehended the accused. The public persons also gave beatings to accused and someone made a call to PCR consequent upon which, the police arrived at the spot and accused was handed over to them. PW1 also deposed that the knife which had fallen down on the road during scuffle, was also handed over to the police. Further, on interrogation, the accused disclosed the place where the bag could be found. Police took PW1 and the accused near Madhuban Park where his empty bag was found. PW1 further deposed that he was carrying morning kit, three pair of clothes and about Rs. 3000/­ in cash in the said bag. PW1 also proved his statement Ex. PW1/A which was recorded by the police. PW1 deposed in categorical terms that the accused was the person who had put the knife on his abdomen during the incident.

Sessions CaseNo 243/2017 . Page 11/15

PW1 duly identified his bag Ex. P­1 and the knife Ex. P­2 used by the accused. Besides, PW1 also witnessed the sketch of knife Ex. PW1/B, its Seizure Memo Ex. PW1/C, Seizure Memo of his empty bag Ex. PW1/D, Arrest Memo of the accused Ex. PW1/E and Personal Search Memo Ex. PW1/F.

21. PW1 was cross­examined by the ld. Defence counsel but no substantial point could be extracted out of his testimonies by him. During cross­examination, PW1 was confronted with his statement Ex. PW1/A as the facts i.e. putting a cloth on his face and the knife had fallen on the road during scuffle were not found recorded therein. Both the aforesaid facts cannot be construed as material contradiction so as to doubt the categorical deposition of PW1 about the identity of the accused and the use of knife by the accused during the incident. The testimony of PW1 regarding the incident of robbery with him and use of knife by the accused during the incident remained uncontroverted. The identification of the accused as well as the case property i.e. empty bag Ex. P­1 and the knife Ex. P­2 also could not be dislodged by the ld. Defence counsel. Therefore, the creditworthiness of testimony of PW1 could not be impeached in any material terms and the same is reliable.

22. PW2 ASI Anil Kumar deposed about receiving Rukka at about 7.50 a.m from Ct. Ravish which was sent by SI Pawan Kumar on the Sessions CaseNo 243/2017 . Page 12/15 basis of which the FIR Ex. PW2/A was registered and endorsement Ex. PW2/B was made on the Rukka which was handed over to Ct. Ravish alongwith copy of FIR, to be handed over to IO SI Pawan Kumar. PW2 also proved the information received at about 5 am on 06.02.2017 regarding apprehension of a thief, which was recorded by him vide DD Ex. PW5/A.

23. PW3 ASI Mahesh Chand deposed about deposition of one sealed pulanda, one bag and personal search article of accused Bijender Kumar in the Malkhana regarding which he had made entry in register no. 19 at Serial No. 72. He also produced the copy of relevant entry in register no.19 Ex. PW3/A.

24. PW 4 Ct. Ravish had reached at the spot on 06.02.2017 alongwith IO/SI Pawan Kumar (PW5) after receiving DD No. 10­A in the police Station. PW4 deposed that the complainant Ankit Awasthi (PW1) met them there and produced the accused alongwith one bag of grey colour and one knife. Further IO prepared Rukka on the statement of the PW1 and handed over the same to PW4 for registration of FIR consequent upon which PW4 had gone to Police Station and got the FIR registered. PW4 also deposed about the arrest of the accused by the IO, preparation of sketch of knife and seizure memo of the bag Ex. P­1. PW4 duly identified the accused as well as the knife Ex. P­2.

Sessions CaseNo 243/2017 . Page 13/15

25. PW5 SI Pawan Kumar IO of the case deposed about the investigation conducted by him, including the arrest of the accused, preparation of site plan, sketch of knife, Seizure memo of the bag and interrogation of the accused. He further deposed about making efforts to apprehend co­accused Pankaj and his arrest by ASI Raghuraj on 18.02.2017. However, during Test Identification Proceedings, the complainant failed to identify accused Pankaj and, therefore, he was released. PW5 also duly identified the accused as well as the case property i.e. bag Ex. P­1 and the knife Ex. P­2.

26. Both PW4 and PW5 were cross­examined by the ld.defence counsel but no contradiction could be brought forth in their respective testimonies. No other substantial point could be extracted out of their testimonies by the ld. Defence counsel in cross­examination.

27. In view of above discussed facts and circumstances, it has been established that it was the accused, who while committing robbery upon PW1 Ankit Awasthi on 06.02.2017, also used knife Ex.P­2 due to which PW1 left his bag Ex. P­1 out of fear. The accused was apprehended at the spot while his associate had run away from there. PW­1, PW­4 and PW­5 duly identified him while deposing in the court. Therefore, in my considered opinion, the prosecution successfully established that it was the accused who committed Sessions CaseNo 243/2017 . Page 14/15 robbery upon PW1 Ankit Awasthi within the meaning of para 1 of Section 390 IPC read with Section 397 IPC. The accused Bijender Kumar S/o Atma Ram is accordingly held guilty for commission of offence u/s 392/34 read with Section 397 IPC and is hereby convicted for the same.

28. Let the convict be heard on the point of sentence.

KULDEEP order Digitally signed by KULDEEP NARAYAN NARAYAN Location: East District Karkardooma Courts, Delhi Date: 2019.12.24 14:56:20 +0530 (Pronounced in the open (Kuldeep Narayan) Court on 23.12.2019) Addl. Sessions Judge ­ 04 (East) Court No. 10: Karkardooma Courts Delhi Sessions CaseNo 243/2017 . Page 15/15