Delhi District Court
State vs . Sudhir @ Nanu & Another on 18 November, 2019
SC/691/17
State Vs. Sudhir @ Nanu & Another
IN THE COURT OF SHRI DEEPAK JAGOTRA,
DISTRICT & SESSIONS JUDGE, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
SC/691/17
CNR No.DLNW010107312017
State Versus 1. Sudhir @ Nanu
S/o Shri Kishan Dev
R/o M304, Mangolpuri, Delhi
2. Rahul @ Hotla
S/o Shri Om Prakash
R/o M345, Mangolpuri, Delhi
FIR No.1137/17
PS Mangol Puri
under Section 392/394/397/34 IPC
under Section 25/27/54/59 of the Arms Act
Date of institution of case : 31102017
Reserved for judgment on : 25102019
Date of passing of judgment : 18112019
JUDGMENT
1. This is a case filed on behalf of State whereby prosecution is seeking conviction of accused persons namely (1) Sudhir @ Nanu and (2) Rahul @ Hotla, who along with their associate Sunny (not FIR No.1137/17 PS Mangol Puri Page No. 1/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another arrested) in furtherance of their common intention had robbed Rs.700/ from the possession of complainant Aman and while committing robbery, accused persons had used button actuated knife and caused injuries on the person of complainant Aman for the offences punishable under Section 392/394/397/34 of the Indian Penal Code (hereinafter shall be referred as the "IPC") and for the offences punishable under Section 25/27/54/59 of the Arms Act against accused Sudhir @ Nanu.
2. Heard both the sides and meticulously gone through the record of the case.
3. Learned Additional Public Prosecutor for the State has submitted that the prosecution has successfully proved its case beyond a reasonable doubt against the accused persons and further prays that accused persons may be convicted for the offences charged against them.
4. On the other hand, it has been submitted on behalf of accused persons that they have been falsely implicated in this case and FIR No.1137/17 PS Mangol Puri Page No. 2/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another the prosecution has miserably failed to prove its case beyond a reasonable doubt against the accused persons and further prays for the acquittal of the accused persons.
5. The facts of the case in concise format are that on 1608 2017 at about 4 am in DBlock, Mangol Puri, Delhi, accused persons Sudhir @ Nanu and Rahul @ Hotla along with their third associate Sunny (not arrested) in furtherance of their common intention had robbed Rs.700/ from the possession of complainant Aman and while committing robbery, accused persons had used button actuated knife and caused injuries on the person of complainant Aman.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed for trial and the charge sheet was received by the Court on 31102017. Charge was framed against the accused persons on 24112017 for the offences FIR No.1137/17 PS Mangol Puri Page No. 3/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another punishable under Section 392/394/397/34 IPC and under Section 25/27/54/59 of the Arms Act against accused Sudhir @ Nanu. The accused persons have pleaded not guilty and claimed trial for the offences charged against them.
8. In order to prove its case, the prosecution has examined as many as 12 witnesses.
9. Statement under Section 313 Cr.P.C. of accused persons were recorded on 20092019.
10. In their defence, no witness has been examined by the accused persons.
11. It is pointed out that the entire case shall be scrutinized and analyzed keeping an eye on the settled provisions of law and judicial precedents.
ANALYSIS OF THE PROSECUTION EVIDENCE OCCULAR EVIDENCE
12. PW1 Aman, who is the complainant in his testimony before the Court has stated that he along with his family were residing FIR No.1137/17 PS Mangol Puri Page No. 4/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another at a rented house. He has further stated that in the intervening night of 15/16082017, he slept in the nearby park as he was drunk and came late in the house and the landlord of the house bolted the main door of the house from inside. He has further stated that he was carrying Rs.700/ in the pocket of his underwear when he went to sleep. He has further stated that at about 4 am, when he was sleeping, he got up as three boys started searching his pockets and they were robbing Rs.700/ in cash from his inner pocket. He has further stated that since he got up and saw them, they got perplexed. He has further stated that those three boys were not previously known to him. He has further stated that while those boys were robbing him and other boys were calling him by the name Nanu and said "Nanu isse chaaku jaada lag gaya hai" and he saw the boy, who stabbed him on his stomach, little finger and left side of the forehead and his name was Nanu. He has further stated that accused Nanu attacked him thrice with the knife and other two boys were also with accused Nanu while they were robbing his money forcibly. He has further stated that all the accused persons FIR No.1137/17 PS Mangol Puri Page No. 5/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another robbed his Rs.700/ and ran away towards EBlock. He has further stated that he suffered injuries and came out of the park and went to SGM Hospital on an ERickshaw on his own. He has further stated that police met him in the hospital and recorded his statement Ex.PW1/B.
13. In the cross examination, it is further elicited that three boys had come there at about 44.15 am and at that time, accused Nanu was having knife in his hand. It is further elicited that he had seen the accused when they inflicted injuries upon him and second time in the Court. It is further elicited that he cannot tell the names of the boys, who caught hold of him and one of those boys removed his money but he cannot tell his name.
14. The complete testimony of this witness shall be discussed in the later part of the judgment.
IDENTIFICATION OF ACCUSED PERSONS
15. As regards identity of the accused persons, PW1 Aman has clearly identified both the accused persons namely Sudhir @ Nanu FIR No.1137/17 PS Mangol Puri Page No. 6/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another and Rahul @ Hotla in the dock to be the same persons, who had robbed Rs.700/ from him along with their third associate Sunny (not arrested).
RECOVERY OF CASE PROPERTY
16. PW1 Aman has clearly identified one blue colour blood stained TShirt and one dark stained white baniyan as Ex.P1 and Ex.P2 respectively as the clothes which he was wearing at the time of incident. PW1 Aman has also identified button actuated knife having some dark stains on its blade as Ex.P3 as the one from which injuries were inflicted upon him.
17. Besides PW1 Aman, PW5 Dr. Munish Wadhawan, PW9 Ct. Satish, PW10 Ct. Naveen Kumar and PW11 ASI Satish Chander have also identified the button actuated knife used in the commission of offence as Ex.P3.
MEDICAL EVIDENCE
18. PW3 Dr. Ramandhar Prasad, CMO, SGM Hospital, FIR No.1137/17 PS Mangol Puri Page No. 7/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another Mangol Puri has come in the witness box and has proved the MLC No.13728 of complainant Aman as Ex.PW3/A and also proved his endorsement regarding nature of injuries as 'grievous' as Ex.PW3/B.
19. PW5 Dr. Munish Wadhawan, Specialist Forensic Medicine, SGM Hospital, Mangol Puri has come in the witness box and has proved his opinion as Ex.PW5/A that the incised wound mentioned in MLC Ex.PW3/A were possible with the weapon of offence i.e. the button actuated knife.
20. PW6 Dr. Rajesh Dalal, CMO, SGM Hospital has come in the witness box and has stated that on 24092017, one person Aman was brought by ASI Satish Chauhan for medical examination in casualty of SGM Hospital and the MLC was prepared by Dr. Shad Khan, the then JR under his supervision and on local examination, it was found that no fresh external injuries were present. He has further stated that blood sample was sealed and handed over to IO on his request and the MLC is Ex.PW6/A bearing is signature at point A. He has further stated that he can identify the signature and FIR No.1137/17 PS Mangol Puri Page No. 8/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another handwriting of Dr. Shad Khan at point B on MLC Ex.PW6/A as he had left the hospital and his present whereabouts are not known.
DEPOSITION OF OTHER FORMAL PROSECUTION WITNESSES
21. Besides this witness, prosecution has also examined other formal witnesses to prove as follows;
S.No. Name of witness To prove 1. PW2 HC Jitender Endorsement on rukka Ex.PW2/A, FIR
Ex.PW2/B, Certificate under Section 65B of Indian Evidence Act Ex.PW2/C, DD No.11A Ex.PW2/D
2. PW8 Ct. Naveen Seizure Memo Ex.PW8/A
3. PW9 Ct. Satish Disclosure statements of both accused Ex.PW9/A and Ex.PW9/B, Arrest Memos of both accused persons Ex.PW9/C and Ex.PW9/D, Personal Search Memos of both accused persons Ex.PW9/E and Ex.PW9/F, sketch of knife Ex.PW9/G, seizure memo of knife Ex.PW9/H, site plan of place of recovery Ex.PW9/I, pointing out memo Ex.PW9/J
4. PW11 ASI Satish Chander Rukka Ex.PW11/A, Age Memo Ex.PW11/B and Ex.PW11/C, photographs Ex.PW11/D, Ex.PW11/E and Ex.PW11/F, application Ex.PW11/G, seizure memo Ex.PW11/H, site plan Ex.PW11/I, DAD notification Ex.PW11/J, application Ex.PW11/K CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
22. From the evidence, it is evinced that PW1 Aman was FIR No.1137/17 PS Mangol Puri Page No. 9/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another constrained to sleep outside in the park due to the reason that he came late in his house. His landlord bolted the main gate from inside and he could not secure entry in his house. At that time, he was carrying Rs.700/ in the pocket of his underwear. At about 4 am, when he was sleeping, three boys came near him and groped his pockets. They had taken out Rs.700/ from his inner pocket. In the meantime, he woke up and the assailants became nervous. At that time, one of the accused namely Nanu had attacked him thrice with the help of knife on his stomach, little finger and left side of forehead. After committing robbery, they fled away from the spot. He then came out of the park and went to SGM Hospital in an ERickshaw on his own. Police recorded his statement which is Ex.PW1/B bearing his signatures at point A.
23. From the cross examination, it is elicited that it was dark near the bench but the light was available from the light poles which were installed on the road side. It is further elicited that he does not remember the name of the park in which he was sleeping and he FIR No.1137/17 PS Mangol Puri Page No. 10/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another entered the park at about 12 mid night. It is further elicited that there was a bench in the park where he was sleeping. It is further elicited that he was drunk before entering the park and the park had one small iron gate.
24. As far as identification of the accused persons are concerned, PW1 Aman had clearly identified accused Sudhir @ Nanu and Rahul @ Hotla in the Court to be the persons, who had committed the crime against him. In his examination in chief, PW1 Aman has stated that he knew the name of the assailants as they were calling each other by names while committing the crime.
25. In the cross examination of PW1 Aman, he has clearly stated that accused Nanu was having knife in his hand and he has seen the accused when they inflicted injuries on him. He has also stated that he was shown the photographs of the accused in the hospital and he had identified all the accused persons. In the cross examination, it is elicited that the accused persons were not known to him previously. He has voluntarily stated that when they were escaping after stabbing FIR No.1137/17 PS Mangol Puri Page No. 11/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another him, one of the boys said "Nanu run as many knife injuries had been inflicted on him" and that is how, he came to know the name of the assailant. He has clearly stated in the cross examination that he had seen the faces of the said boys. The witness has also identified his clothes which he was wearing on the day of incident in the Court. He had identified his T Shirt as Ex.P1 and Baniyan as Ex.P2 and he had also identified the button actuated knife as Ex.P3 which was used while inflicting injuries on him by the accused persons.
26. The entire case of the prosecution rests on the sole statement of PW1 Aman. In this regard, in a judgment titled as Alagupandi vs. State of Tamilnadu reported in AIR 2012 SC 2405, the Apex Court has observed that : "In the case of Govindaraju @ Govinda vs State of Sriramapuram P.S. and Anr., (Crl. Appeal No. 984 of 2007 decided on March 15, 2012), this Court held as under :
11. Now, we come to the second submission raised FIR No.1137/17 PS Mangol Puri Page No. 12/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another on behalf of the Appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness). It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand MANU/SC/0004/2003 : (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories :
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable
12. In the third category of witnesses, the Court FIR No.1137/17 PS Mangol Puri Page No. 13/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe FIR No.1137/17 PS Mangol Puri Page No. 14/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the cases of Joseph Vs. State of Kerala, MANU/SC/1084/2002: (2003) 1 SCC 465 and Tika Ram vs. State of Madhya Pradesh (2007) 15 SCC
760. Even in the case of Jhapsa Kabari and Ors.
Vs State of Bihar MANU/SC/0776/2001 : (2001) 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy."
FIR No.1137/17 PS Mangol Puri Page No. 15/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another
27. It is a settled law that identity of the accused is the most crucial factor in the decision of a criminal trial and in the present case, PW1 Aman with whom the entire incident had happened had clearly identified the accused persons in the dock to be the persons, who had committed crime against him.
28. As far as the recovery of button actuated knife is concerned, PW9 Ct. Satish in his testimony has stated that after arrest of the accused persons, they had made disclosure statement recorded by IO which are Ex.PW9/A and Ex.PW9/B bearing his signatures at point A. He has further stated that thereafter, they along with both the accused persons went to Babu Park, Mangol Puri and accused persons took them to bushes, near Khatta inside Babu Park and got recovered one Knife from the bushes. The knife was blood stained. He has further stated that IO seized the knife vide seizure memo Ex.PW9/H and he has clearly identified the said knife as Ex.P3.
29. In the cross examination, it is elicited that the knife was FIR No.1137/17 PS Mangol Puri Page No. 16/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another lying in the bushes but it was not wrapped with anything and he does not remember what was written on the knife.
30. PW10 Ct. Naveen Kumar has also supported and corroborated the case of the prosecution regarding recovery of knife and had stated that both the accused persons disclosed that they had concealed the knife by which they had committed the incident in the bushes near Garbage Khatta of MCD at the corner of Babu Park. He has further stated that both the accused persons took them to the bushes near Garbage Khatta of MCD where they had pointed out towards the bushes and accused Sudhir took out the blood stained knife from the bushes and handed over the same to IO and IO put the knife in a cloth pullanda and seized the same vide seizure memo Ex.PW9/H bearing his signatures at point B. PW10 Ct. Naveen Kumar identified the said knife as Ex.P3 in the Court.
31. In the cross examination, it is elicited that the place from where accused got recovered the knife was near to the place from where they were arrested and accused got recovered the knife from the FIR No.1137/17 PS Mangol Puri Page No. 17/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another park itself. It is further elicited that accused persons got recovered the knife from the park at the back side of garbage khatta and the knife was blood stained.
32. PW11 ASI Satish Chander has supported and corroborated the testimonies of PW9 Satish and PW10 Ct. Naveen Kumar and at relevant stage of examination has stated that thereafter, both accused persons led them near the bushes in the corner of the park and accused Sudhir @ Nanu pointed out in the bushes and shown the place where they had thrown the knife and thereafter, he searched the bushes and found one blood stained knife. He has also identified the said knife.
33. At this stage, it is pointed out that any information given in the disclosure statement leading to discovery of a fact is admissible under Section 27 of the Indian Evidence Act. Reliance is placed on judgment titled as Bodhraj Vs. State reported in (2002) 8 SCC 45, wherein the Hon'ble Apex Court has been pleased to observe as under;
"The statement which is admissible under Section 27 is FIR No.1137/17 PS Mangol Puri Page No. 18/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another the information leading to discovery and the same has to be proved and not the opinion formed on it by the police officer. It is, therefore, necessary for the benefit of both the accused and the prosecution that the information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
34. Therefore, part of the statement which led to the recovery of knife is clearly admissible under Section 27 of the Indian Evidence Act.
35. From the evidence brought on record, it is clearly reflected that pursuant to their disclosure statements made before the police, both the accused persons led the police party to place inside the park and got recovered the blood stained knife from the bushes near garbage of MCD. This fact is clearly supported and corroborated by the testimonies of PW9 Ct. Satish, PW10 Ct. Naveen Kumar and FIR No.1137/17 PS Mangol Puri Page No. 19/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another PW11 ASI Satish Chander. All the said police witnesses have stated in one voice that accused persons led them to the place of recovery and got recovered the weapon of offence. It has not come on record that the place from where the knife was got recovered was a known place accessible to all or the knife was clearly visible from the outside. It could be that the place from where the knife was recovered was in the exclusive knowledge of the accused persons which completely rules out any alleged planting of the weapon of offence.
36. At this stage, let us have a look at Section 394 and 397 IPC. The essential ingredients of the offence under Section 394 are as follows:
(1) Accused committed or attempted to commit robbery; (2) He and anyone else jointly concerned in committing or attempting to commit robbery caused hurt;
(3) Hurt was caused voluntarily.
37. The essential ingredients of the offence under Section 397 are as follows:FIR No.1137/17
PS Mangol Puri Page No. 20/27
under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another (1) Accused committed robbery or dacoity;
(2) While committing such robbery or dacoity the accused
(a) used a deadly weapon;
(b) caused grievous hurt to any person;
(c) attempted to cause death or grievous hurt to any person.
38. From the evidence, it is clearly discerned that both the accused persons along with their associate Sunny (not arrested) had committed robbery of Rs.700/ from the possession of PW1 Aman.
PW1 Aman had clearly stated that he had seen the accused persons as there was street light available at the spot. He has also identified them as the accused persons were calling them by their names during commission of offence. He has also identified them in the dock. He has clearly identified his T Shirt Ex.P1, his Baniyan Ex.P2 which he was wearing at the time of accident and button actuated knife Ex.P3 from which injuries were inflicted on him. The said knife is also identified by PW9 Ct. Satish, PW10 Ct. Naveen Kumar and PW11 ASI Satish Chander.
39. Accused persons pursuant to their disclosure statements FIR No.1137/17 PS Mangol Puri Page No. 21/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another had got recovered one knife from the bushes inside the park where the entire incident had taken place. It is logical that after committing the crime, the accused persons had thrown the button actuated knife in the bushes in order to save themselves but in vain.
40. Three stab injuries were caused on the person of PW1 Aman. One on his abdomen, one on his left frontal head and one on his left little finger. The MLC is proved by PW3 Dr.Ramandhar Prasad, CMO, SGM Hospital, Mangol Puri as Ex.PW3/A. PW3 has also proved the nature of injuries as grievous.
41. PW4 Dr. Irfan Ahmad Ansari had examined patient Aman in surgery department and he has opined the nature of injuries as grievous.
42. PW5 Dr. Munish Wadhawan, Specialist Forensic Medicine, SGM Hospital, Mangol Puri has proved the fact that the incised wound mentioned in the MLC were possible with sharp weapon or the weapon examined by him. He has proved his opinion Ex.PW5/A. FIR No.1137/17 PS Mangol Puri Page No. 22/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another
43. Nothing has been asked in the cross examination to discredit their testimonies.
44. From the medical evidence placed on record, it is clearly found out that accused persons while committing robbery and during commissioning of the offence had inflicted grievous injuries on the person of complainant Aman. Therefore, the case falls within the parameters of Section 394/34 IPC against the accused persons as they had acted in furtherance of their common intention.
45. Therefore, it is amply clear that the accused persons in furtherance of their common intention had used the knife while inflicting injuries upon complainant Aman. Their common intention is clearly discerned from the fact that one of the accused persons at the time of committing the offence had said "Nanu run as many knife injuries had been inflicted".
46. As far as case of the prosecution under Section 25/27/54/59 of the Arms Act is concerned, PW1 Aman had clearly stated that at the time of committing robbery, the knife was in the FIR No.1137/17 PS Mangol Puri Page No. 23/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another hands of accused Sudhir @ Nanu and he had inflicted the injuries on the person of PW1 Aman which stands proved by medical evidence.
47. The knife is identified by PW1 Aman, PW9 Ct. Satish, PW10 Ct. Naveen Kumar and PW11 ASI Satish Chander which is a button actuated knife and was used in violation of Notification no.F 13/203/78 Home (General) Dated 17021979.
48. Therefore, the case falls within the parameters of provisions of Section 27 of the Arms Act.
49. As far as case under Section 397 IPC is concerned, it has clearly come on record that accused Sudhir @ Nanu had used the knife while committing the crime against PW1 Aman. It is also clear that knife is a button actuated knife and is a dangerous weapon within the ambit of law. In a case titled as State of Himachal Pradesh Vs. Wazir Chand reported in AIR 1978 SC 315, the knife has clearly been held as a "dangerous weapon".
50. As far as benefit of doubt is concerned, reliance is placed on a judgment passed by Hon'ble Apex Court titled as FIR No.1137/17 PS Mangol Puri Page No. 24/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another Ramakant Rai Vs. Madan Rai & others reported in AIR 2004 SC 77 wherein the Hon'ble Apex Court has been pleased to observe as under;
"The concepts of probability, and the degrees of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice."
51. In view of the foregoing reasons and discussion, the accused persons are not entitled to get the benefit of doubt.
52. The accused persons either by way of cross examination FIR No.1137/17 PS Mangol Puri Page No. 25/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another of the prosecution witnesses or by way of defence evidence has completely failed to discredit, denounce, demolish the case of the prosecution in any manner whatsoever.
53. The prosecution has given a clear account of events and has proved its case within the ambit of provisions of Section 394/34 IPC beyond a reasonable doubt against the accused persons Sudhir @ Nanu and Rahul @ Hotla as both the accused persons have acted in furtherance of their common intention while committing the crime. The prosecution has also proved its case within the ambit of provisions of Section 397 IPC and under Section 27 of the Arms Act beyond a reasonable doubt against the accused Sudhir @ Nanu.
CONCLUSION
54. Keeping in view the totality of the facts and circumstances of the case and the statements of all the star prosecution witnesses which is duly supported and corroborated by other prosecution witnesses, the only irresistible conclusion points out a guilt towards the accused persons FIR No.1137/17 PS Mangol Puri Page No. 26/27 under Section 392/394/397/34 IPC & under Section 25/27/54/59 of the Arms Act SC/691/17 State Vs. Sudhir @ Nanu & Another
55. In view of the entire conspectus of facts and circumstances of the matter, the prosecution has been successfully able to prove its case beyond a reasonable doubt against accused persons Sudhir @ Nanu and Rahul @ Hotla for the offence punishable under Section 394/34 of the Indian Penal Code and against accused Sudhir @ Nanu for the offence punishable under Section 397 IPC and under Section 27 of the Arms Act.
56. Accused persons Sudhir @ Nanu and Rahul @ Hotla are hereby convicted for the offence punishable under Section 394/34 of the Indian Penal Code and accused Sudhir @ Nanu is also convicted for the offence punishable under Section 397 IPC and under Section 27 of the Arms Act.
Digitally
signed by
ANNOUNCED IN THE OPEN COURT DEEPAK
ON 18th NOVEMBER, 2019 DEEPAK JAGOTRA
JAGOTRA Date:
2019.11.18
16:01:27
+0530
(DEEPAK JAGOTRA)
DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
FIR No.1137/17
PS Mangol Puri Page No. 27/27
under Section 392/394/397/34 IPC &
under Section 25/27/54/59 of the Arms Act