Delhi District Court
State vs . Bhiku Page 1 Of 9 on 25 November, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI.
SC. No.161/2018
FIR No.28/2018
P.S Govind Puri
U/s 392/397/411/34 IPC
STATE
Versus
BHIKU
S/o Raj Kumar
R/o Jhuggi Below Sarita Vihar Flyover,
New Delhi.
Date of Committal : 16.04.2018
Date of hearing Arguments : 02.11.2020
Date of Decision : 25.11.2020
JUDGMENT
A charge sheet has been filed against accused Bhiku on the allegations of committing robbery and also inflicting injury with a knife while committing the robbery and thus committing the offences punishable under Section 392/397/411/34 IPC.
2 The facts in brief are that on 22.01.2018 at about 2.40 P.M the complainant Sanjay had gone to Monkey Park Jungle for picking dry woods when the accused Bhiku along with one Mithun confronted him and demanded money and in the process they grappled with him. One of the accused caught him from behind while the other attacked him with a knife because of which he suffered injuries on his face and right hand. They also took away Rs.120/- from his pocket and ran. When the complainant raised an State Vs. Bhiku page 1 of 9 alarm, police personnel caught hold of the accused Bhiku while the other accused was able to escape. On the search of accused Bhiku, one knife was recovered from his pocket which was seized. The FIR was registered on the complaint of Sanjay and investigations were taken over by SI Manoj Kumar. The injured was sent to Majidia Hospital for treatment. The accused Bhiku was arrested and he made a disclosure statement and led the police to the house of the co-accused Mithun who was arrested and Rs.120/- were recovered from his possession. During the investigations it was found that co- accused Mithun was a Juvenile and was referred to Juvenile Justice Board. The statements of the witnesses were recorded and on completion of investigations, charge sheet was filed in the Court of Ld. M.M, who after due compliance of Section 207 Cr.P.C committed the case to the Court of Sessions.
3 A charge under Section 392/34 IPC and 397 IPC was framed against the accused on 23.08.2018 to which the accused pleaded not guilty. 4 The complainant Sanjay appeared as PW2 and deposed about the incident as narrated in his Statement Ex.PW2/A. He proved the site plan Ex.PW2/B that was prepared in his present. The Seizure Memo and the sketch of the knife are Ex.PW1/1 and Ex.PW2/C respectively. Arrest memo of the accused is Ex.PW1/X1 and PW1/X2.
5 The other material witness is PW1 ASI Tejender Singh, PW3 HC Ram Avtar and PW7 S.I Manoj Kumar Investigating Officer who were on patrolling duty in the Division and had apprehended the accused Bhiku when an alarm of 'Bachao-Bachao' was raised by the complainant. PW3 HC Ram Avtar had apprehended the accused Bhiku. PW7 SI Manoj Kumar had State Vs. Bhiku page 2 of 9 prepared the sketch of the knife, sealed it in a pulinda and seized it vide memo Ex.PW1/1. The Investigating Officer also collected the medical record of the injured Sanjay from the hospital.
6 PW5 Dr. Samit Ali CMO Majeedia Hospital proved the MLC of the injured as Ex.PW5/1 and deposed that the complainant had suffered grievous injury.
7 PW4 HC Luvkesh was the Duty Officer who had made the endorsement Ex.PW4/2 on the complaint and had registered the FIR Ex.PW4/1.
8 The relevant entries Ex.PW6/A and Ex.PW6/B of the MHC(M) Register No.19 in regard to the deposit of case property in the Malkhana was proved by PW6 HC Jai Prakash.
9 The Statement of the Accused was recorded under Section 313 Cr.P.C, wherein he submitted that he had been arrested from his jhuggi under the Apollo Hospital flyover and that nothing was recovered from him. He further stated that he does not know Mithun.
10 No evidence was led by the accused in his defence.
11 Ld. Chief Prosecutor has argued that the consistent testimony of the complainant which is supported by the recovery of knife and the medical record proves the charges against the accused beyond reasonable doubt and he is liable to be convicted.
12 Ld. Counsel on behalf of the accused has argued that there are material contradictions in the testimony of the prosecution witnesses. As per the complainant, the incident had occurred at about 02:30 P.M while he had been sent to the hospital at about 07:00 P.M and that too by a family member State Vs. Bhiku page 3 of 9 and he was not accompanied by any police official. The accused Bhiku has claimed to have been apprehended on the spot at about 02:30 P.M while had been arrested only at 08:20 P.M. The timing on the Arrest Memo has been tampered and has been changed. It creates a doubt about the arrest of the accused in the manner as claimed by the prosecution. There is no explanation forthcoming as to why a person apprehended at 02:30 P.M was not arrested till 08:20 P.M. This only reflects that he has been implicated falsely in this case. Furthermore, PW5 Dr. Samit Ali has admitted in his cross- examination that the injuries suffered by the complainant could have been caused by a fall. Moreover, as per the complainant the injuries were inflicted by a knife, but the injuries suffered by the complainant are lacerated which could not have been possibly caused with a knife. The identity of the knife is also not established as the description has been given differently by the complainant and the police witnesses. The blood from the inflicted injuries would have fallen on the clothes of the complainant, but they were never seized. Moreover, the knife allegedly recovered from the pocket of accused Bhiku did not have any blood stains which shows that it was never used for inflicting injuries. The discrepancies in the case of the prosecution clearly prove that the accused has been falsely implicated in this case and that no offence was committed by him.
13 I have heard the arguments and have perused the record and the evidence recorded therein. My findings are as under: 14 The case of the prosecution is that the complainant Sanjay was robbed by accused Bhiku and is associate Mithun (Juvenile) who snatched Rs.120/- from him and while committing robbery they inflicted injuries with a State Vs. Bhiku page 4 of 9 knife. The star witness is the complainant Sanjay who has appeared as PW2. He has narrated the incident as stated in his complaint Ex.PW2/A. The testimony of the complainant is essentially consistent as no material contradiction could be brought forth in his cross-examination. The question, however, is what is the offence made out from his testimony. 15 The offence of robbery is defined under Section 390 IPC as under:
"390. Robbery - In all robbery there is either theft or extortion.
When theft is robbery - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted."
16 Section 397 IPC reads as under:
"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 any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
17 According to the complaint Ex.PW2/A while the complainant had gone to the forest to collect dry woods, two boys met him and demanded money from him, but a marked improvement was made by the complainant in his testimony when he said that he was threatened to be stabbed. There is a material contradiction in regard to being put under the fear of instant death or State Vs. Bhiku page 5 of 9 hurt while in the first instance no allegation of being put under the fear of instant death or hurt was made.
18 In order to bring home the offence under Section 392 IPC it has to be proved that the accused had voluntarily caused or attempted to cause, or by putting the person under the fear of death, hurt or wrongful restraint while committing theft to constitute the offence of robbery. Though the complainant has deposed that he was stabbed by the accused persons but he does not describe where the stabbed injuries were inflicted upon him. In this context the MLC Ex.PW5/1 of the complainant becomes relevant wherein the injuries suffered by the injured are described as lacerated over the left side of the face and over right forearm measuring 4X1.5 Cms. The opinion given by the Doctor is that the injury suffered was grievous. PW5 Dr. Samit Ali who prepared the MLC appeared explained that the injuries were certified as grievous since it could lead to permanent scarring of the face. However, he admitted that the injuries suffered were lacerated wounds and they could have been caused by fall on hard surface. The complainant in his statement Ex.PW2/A had stated that the two accused had demanded money and had started grappling with him in order to snatch the money. The injuries suffered were lacerated wounds and in the light of the testimony of the complainant, the possibility of injuries being suffered by him by a fall cannot be ruled out. This is more so for if the injuries had been inflicted by the knife allegedly recovered from the accused Bhiku, they would have been incised injuries. No explanation is forthcoming if the lacerated wounds suffered by the complainant could possibly be inflicted with the sharp edged knife. The manner in which the injuries were caused has not been established beyond State Vs. Bhiku page 6 of 9 reasonable doubt by the prosecution. Though the testimony of the complainant establishes the theft of Rs.120/- by the accused and his associate in furtherance of common intention, but his testimony is not sufficient to prove that any injury was caused to him voluntarily or he was put in fear of death while committing theft. The offence thus proved is that of Section 379 IPC and not of Section 392 IPC.
19 It is also material to discuss the testimony of PW1 ASI Tejender Singh, PW3 HC Ram Avtar and PW7 SI Manoj Kumar who had apprehended the accused Bhiku. All the three witnesses have consistently deposed that while they were on patrolling duty in the area at about 2.40 P.M when they reached Monkey Park Jungle, they heard voices of some person shouting 'Bachao- Bachao' from the park. The immediately rushed there and saw two persons coming out and running towards M.B Road. HC Ram Avtar over powered the accused Bhiku while his associate Mithun was able to escape. On the search of Bhiku one knife Ex.P1 was recovered from his pocket, the sketch of which is Ex.PW2/C and it was seized vide memo Ex.PW1/1 20 Ld. Counsel on behalf of the accused had argued that accused Bhiku was not caught from the spot but was lifted from his house and was implicated subsequently. In support of this argument it has been pointed out that in the Arrest Memo Ex.PW1/X1 there is overwriting in regard to the time of arrest which has been over written as 08:20 P.M instead of 7.10 P.M. Moreover, a doubt is created about the entire incident for it is difficult to comprehend why the complainant was not taken to the hospital by the police immediately but was sent along with his relative at 07:00 P.M as is mentioned in the MLC. It is quite evident from the testimony of PW7 SI Manoj Kumar that once the State Vs. Bhiku page 7 of 9 accused was apprehended, it took some time to do the initial paper work and an effort was made to trace the co-accused. In so far as delay in sending the complainant to hospital is concerned, it is evident from the MLC Ex.PW5/1 that the injuries suffered were not bleeding or else the injured would have been immediately taken to the hospital. Mere delay in formal arrest of the accused or sending of the injured to the hospital does not take away the truth from the testimony of the complainant. The procedural delay in the investigations is not of the nature so as to discredit the case of the prosecution totally. The testimony of the complainant is consistent and proves the happening of the incident which cannot be doubted. 21 Ld. Counsel on behalf of the accused had also argued that the blood stained clothes of the complainant were not seized and there were no stains of blood on the knife allegedly recovered from the pocked of the accused. 22 As already mentioned above, there were lacerated injury on the face and arm of the complainant and as mentioned in the MLC there was complaint of pain and bleeding from the two injuries. There is nothing to show that there was profuse bleeding from the two injuries. Moreover, the non- seizure of the clothes of the complainant does not obliterate the injuries evidently suffered by the complainant on his face and arm. Non-seizure of the clothes of the complainant is thus not significant. 23 Likewise, as argued by the Ld. Chief Public Prosecutor for the State when there is injury inflicted by a sharp edged weapon, it is quick and there may not be blood found on the knife. Moreover, it has already been held that there is a doubt about the injuries having been inflicted by a knife. Therefore, the argument in regard to there being no blood stains on the knife loses its State Vs. Bhiku page 8 of 9 significance.
24 In view of the above discussion, the prosecution has not been able to prove the use of knife while committing the theft and has also not been able to prove that injuries were caused voluntarily while committing the theft. The offence under Section 392 and 397 IPC have not been proved beyond reasonable doubt, but the offence of theft punishable under Section 379 IPC is proved beyond reasonable doubt. The accused Bhiku is thus, convicted for the offence punishable under Section 379 IPC. Digitally signed by
NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2020.11.27
KRISHNA 16:29:57 +0530
ANNOUNCED in the open Court (Neena Bansal Krishna)
today on 25th day of November, 2020 Principal District & Sessions Judge South East, Saket Courts New Delhi.
State Vs. Bhiku page 9 of 9