Delhi District Court
State vs Atul And Ors on 5 March, 2024
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
In the matter of :
CNR No. DLSH01-001247-2023
SC No. 73/2023
State Vs. Atul
FIR No. 0455/2022
PS Farsh Bazar
U/s 392/397/411 IPC
& 25 Arms Act
State
Vs.
Atul
S/o Sh. Rajesh
R/o 6/8/F-2, Ravidas Gali,
Vishwas Nagar,
Shahdara, Delhi
Also at
H. No. 618, F/5,
Ravidas Gali, Vishwas Nagar,
Shahdara, Delhi
.... Accused
Date of Institution of case 04.11.2022
Date of case reserved for Judgment 23.02.2024
Judgment Pronounced on 05.03.2024
Decision Convicted u/s 392/397/411
IPC& 25/54/59 Arms Act
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 1 of 30
JUDGMENT
BRIEF FACTS OF THE CASE
1. On receipt of DD No. 110-A dt. 06.09.2022, IO had reached Punit Public School, 60 ft. Road, Vishwas Nagar, Delhi where HC Pramod and ASI Ved Prakash had caught accused Atul and recovered two mobile phones and one button actuated knife and accused had robbed one mobile phone from the complainant Sanjeev by showing him knife and when he was fleeing, then, complainant shouted "chor chor" then, accused was apprehended near the said school by the police present there while patrolling. The said mobile phone was OPPO A3S, purple colour, having two IMEI numbers, was seized by the police and the said recovered knife was 22.8 cms long and 2.4 cms wide, which was violation of DAD notification. Complainant Sanjeev had given a statement/complaint that on 06.09.2022, he was going towards the Baburam School and at about 07:30 pm, when he reached Punit Public School, Vishwas Nagar, Delhi and checking the SIM of his mobile due to low signal, then suddenly, the accused came and put knife on his stomach and snatched the said mobile phone and on his shouting, the police caught the accused and recovered the said mobile phone and knife.
2. On the above complaint of the complainant, the FIR was registered vide FIR No. 0455/2022, dt. 06.09.2022 in PS Farsh Bazar u/s 392/397 IPC & 25 Arms Act. After investigation, charge-sheet was filed against the accused Atul u/s 392/397/411 State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 2 of 30 IPC & 25 Arms Act and after filing of charge sheet, cognizance of offences was taken against the accused by the Court.
CHARGE
3. Charge for the offences punishable u/s 392/397/411 IPC was framed against accused Atul by Ld. Predecessor of this Court on 23.05.2023 and additional charge u/s 25/54/59 Arms Act was framed against accused Atul by Ld. Predecessor of this court on 03.10.2023. Accused pleaded not guilty and claimed trial.
ADMISSION / DENIAL OF DOCUMENTS
4. Admission / denial of documents u/s 294 Cr.P.C. was conducted on 03.10.2023. Ld. LAC for accused admitted the following documents :
(a) FIR No. 455/2022, Ex.P3;
(b) Certificate u/s 65B Indian Evidence Act, Ex.P4;
(c) DD No. 110-A, Ex.P5;
(d) DD No. 93, Ex.P6;
(e) DD No. 95-A, Ex.P7;
(f) DAD Notification regarding knife, Ex.P8.
In view of above-said admission, the requirement of evidence of following witness was dispensed with :
(a) ASI Jugendra (mentioned at Sl. No. 2 in the list of witnesses).
(b) Record clerk O/o Deputy Secretary, Home (G) Delhi Administration.
PROSECUTION EVIDENCE
5. Prosecution examined six (6) witnesses in its favour to prove the case.
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 3 of 30PUBLIC/EYE WITNESS
6. PW-1 Sanjeev deposed that he was the resident of Shahdara, Delhi on rent and permanent resident of Barelly, U.P. In 2022, at about 07:30 PM, he was returning from his work at Pushpanjali Enclave after finishing his labour work and after crossing 18 Quarters when he reached at 60 ft. road, near Nakul Gali, his mobile make OPPO was not working. One person, having knife, came to PW-1 and showed a knife to him and stated that "mobile dede ya paise dede nahi to chhaku maar dunga"
and that person snatched his mobile and fled away from the spot and he raised alarm and chased that person. At some distance, police official apprehended that person.
7. PW-1 deposed that police official recorded his statement/complaint Ex.PW1/A and his mobile phone and the knife were recovered from possession of that person and PW-1 further deposed that he remained at the spot for sometime and thereafter, he went to his house. He did not have any mobile bill/invoice of his mobile as he had purchased the same long time ago and thereafter, he was never called by the police. PW-1 correctly identified his mobile make OPPO (bearing IMEI No. 869185032559493 and 869185032559485) Ex.P1 and knife Ex.P2. PW-1 had also correctly identified accused Atul who robbed him.
During the cross-examination by Ld. APP, PW-1 admitted that incident occurred on 06.09.2022, near Punit Public School, Vishwas Nagar, Delhi and he was checking his phone as no signals were received in his mobile phone at that time and State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 4 of 30 accused Atul had placed (laga diya) knife on his abdomen and showed the fear of knife to him and IO sealed the above said recovered knife after wrapping the same in a white clothe with the seal of PK and seized the same vide seizure memo Ex.PW1/B. IO also prepared the sketch of the knife Ex.PW1/C and IO seized the said mobile phone vide seizure memo Ex.PW1/D and accused Atul was arrested at the spot on his identification vide arrest memo Ex.PW1/E and personal search of accused was conducted vide memo Ex.PW1/F. POLICE WITNESSES
8. PW-2 ASI Ved Prakash deposed that on 06.09.2022, he was posted as ASI at PS Farsh Bazar, Delhi. On that day, he along with ASI Amit was on area patrolling duty. When they reached near 18 Quarters Picket, they met HC Pramod and they started talking with him. At about 07:30 pm, they saw a person coming from Punit Public School side, who was shouting 'Chor- Chor' and chasing a boy. He with the help of ASI Amit and HC Pramod, apprehended that boy, who was being chased by the person who was shouting 'chor-chor', whose name was revealed as Atul s/o Rajesh and the person who was shouting, his name came to be known as Sanjeev and complainant Sanjeev disclosed about the incident, which happened with him. HC Pramod conducted search of accused Atul and one buttondar knife was recovered from the right side pocket of wearing capri (half pant) and two mobile phones i.e. one make Oppo and other make Realme were found in his left side pocket of wearing capri (half pant).
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 5 of 309. PW-2 deposed that PW-1 complainant/Sanjeev identified his mobile phone make Oppo, colour purple (baigni) bearing IMEI No. 869185032559493 and 869185032559485 and having his photo in his phone. HC Pramod gave information at the PS Farsh Bazar, Delhi. After some time, SI Pankaj Kasana came at the spot and HC Pramod handed over accused Atul and said recovered knife and mobile phones to SI Pankaj Kasana. The other mobile phone i.e. make Realme was found to be belonging to accused Atul and IO prepared the sketch of the said recovered buttondar knife and as per measurement, the total length of the knife was found to be 22.8 cms, width of blade was found to be 2.4 cms, length of blade was found to be 10.3 cms and length of handle was found to be 12.5 cms and the sketch of said knife was Ex. PW1/C and IO/SI Pankaj Kasana sealed the above said buttondar knife with the seal of PK after wrapping the same in a white colour cloth and the above said buttondar knife was seized vide Seizure Memo Ex. PW1/B. IO also seized the recovered mobile phone make Oppo vide Seizure Memo Ex. PW1/D. Seal after use was handed over to HC Pramod vide Handing Over Memo Ex.PW2/A.
10. PW-2 deposed that IO recorded the statement of complainant Sanjeev Kumar and prepared the rukka/Tahrir and handed over the same to ASI Amit for registration of FIR, who went to the PS and got registered the FIR. IO along with PW-1/ complainant and them searched for the CCTV camera, but in vain. After some time, ASI Amit came at the spot along with original Rukka and copy of FIR handed over to IO/SI Pankaj State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 6 of 30 Kasana. Thereafter, IO interrogated and arrested accused Atul vide arrest memo Ex. PW1/E and conducted his personal search vide memo Ex. PW1/F and recorded his disclosure statement Ex.PW2/B.
11. PW-2 further deposed that the information about the arrest of accused was given to his sister and IO recorded the supplementary statement of complainant. Accused Atul was sent to the lock up after medical examination and case property was deposited in the Malkhana. He correctly identified the mobile phone make Oppo bearing IMEI No. 869185032559493 and 869185032559485 Ex.P1 and buttondar knife Ex.P2, which were recovered from the possession of accused. PW-2 had also correctly identified accused Atul in the court.
12. PW-3 ASI Amit Kumar deposed that on 06.09.2022, he was posted as ASI at PS Farsh Bazar, Delhi. On that day, he along with ASI Ved Prakash was on area patrolling duty vide DD No. 95A dated 06.09.2022. When they reached near 18 Quarters Picket, they met HC Pramod and they started talking with him, at about 07:30 pm, they saw a person (complainant Sanjeev) coming from Punit Public School side, who was shouting 'Chor- Chor' and chasing a boy. PW-3 with the help of ASI Ved Prakash and HC Pramod apprehended that boy, who was being chased by the person, who was shouting 'chor-chor'. The name of that boy came to be known as Atul and the person, who was shouting, his name came to be known as Sanjeev. Complainant Sanjeev disclosed about the incident, which happened with him. HC Pramod conducted search of accused Atul and one buttondar State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 7 of 30 knife was recovered from the right side pocket of wearing capri (half pant) and two mobile phones i.e. one make Oppo and other make Realme were found in his left side pocket of wearing capri (half pant). Sanjeev identified his mobile phone make Oppo, colour purple (baigni) bearing IMEI No. 869185032559493 and 869185032559485 and having his photo in his phone.
13. PW-3 deposed that HC Pramod gave information at the PS Farsh Bazar, Delhi. After sometime, IO/SI Pankaj Kasana came at the spot, HC Pramod handed over accused Atul and the said recovered knife and mobile phones to SI Pankaj Kasana. The other mobile phone i.e. make Realme was found to be belonging to accused Atul. IO prepared the sketch of the above said recovered buttondar knife and as per measurement, the total length of the knife was found to be 22.8 cms, width of blade was found to be 2.4 cms, length of blade was found to be 10.3 cms and length of handle was found to be 12.5 cms and the sketch of the knife Ex.PW1/C and IO/SI Pankaj Kasana sealed the above said buttondar knife with the seal of PK after wrapping the same in a white colour cloth and the same seized vide Ex.PW1/B and IO also seized the recovered mobile phone make Oppo vide Seizure Memo Ex.PW1/D. Seal after use was handed over to HC Pramod vide Memo Ex.PW2/A.
14. PW-3 deposed that IO/SI Pankaj Kasana recorded the statement of complainant Sanjeev Kumar and prepared the rukka/ Tahrir and handed over the same to him for registration of FIR, he went to the PS and handed over the same to DO for registration of FIR. DO registered the FIR i.e. 455/2022 and after State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 8 of 30 registration of the same, DO handed over the original Rukka and copy of FIR to him for handing over the same to IO/SI Pankaj Kasana. At about 11:45 pm, he came back at the spot along with original Rukka and copy of FIR and handed over the same to IO. Thereafter, IO interrogated and arrested accused Atul vide arrest memo Ex.PW1/E and conducted personal search of accused vide memo Ex.PW1/F and disclosure statement of accused was also recorded by IO vide statement Ex.PW2/B and also prepared the site plan at the instance of the complainant. PW-3 deposed that the information about arrest of accused was given to his sister. IO recorded the supplementary statement of complainant. Accused Atul was sent to the lock up after medical examination and case property was deposited in the Malkhana. He correctly identified the mobile phone make Oppo bearing IMEI No. 869185032559493 and 869185032559485 Ex.P1 and buttondar knife Ex.P2, which were recovered from the possession of accused. PW-3 also correctly identified accused Atul in the court.
15. PW-4 HC Pramod deposed that on 06.09.2022, he was posted as HC at PS Farsh Bazar, Delhi. On that day, he was on area patrolling duty on government bike vide DD No. 93A dated 06.09.2022 and when he reached near 18 Quarters Picket to drink some water, ASI Ved Prakash and ASI Amit came there and they started talking with each other, at about 07:30 pm, they saw a person (complainant Sanjeev) coming from Punit Public School side, who was shouting 'Chor-Chor' and chasing a boy. PW-4 with the help of ASI Ved Prakash and ASI Amit apprehended that State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 9 of 30 boy and the name of that boy came to be known as Atul and the person, who was shouting, his name came to be known as Sanjeev. Complainant Sanjeev disclosed about the incident, which happened with him. PW-4 conducted search of accused Atul and one buttondar knife was recovered from the right side pocket of wearing capri (half pant) and two mobile phones i.e. one make Oppo and other make Realme were found in his left side pocket of wearing capri (half pant). PW-1/Sanjeev identified his mobile phone make Oppo, colour purple (baigni) bearing IMEI No. 869185032559493 and 869185032559485 and having his photo in his phone.
16. PW-4 deposed that he gave information to the DO, PS Farsh Bazar, Delhi. After some time, IO/SI Pankaj Kasana came at the spot, he handed over accused Atul and said recovered knife and mobile phones to the SI Pankaj Kasana. The other mobile phone i.e. make Realme was found to be belonging to accused. IO/SI Pankaj Kasana prepared the sketch of the above said recovered buttondar knife and as per measurement, the total length of the knife was found to be 22.8 cms, width of blade was found to be 2.4 cms, length of blade was found to be 10.3 cms and length of handle was found to be 12.5 cms and the sketch of the knife Ex.PW1/C and IO/SI Pankaj Kasana sealed the above said buttondar knife with the seal of PK after wrapping the same in a white colour cloth and seized the buttondar knife vide seizure memo Ex.PW1/B and also seized the recovered mobile phone make Oppo vide seizure memo Ex.PW1/D. Seal after use was handed over to him vide handing over memo Ex.PW2/A. State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 10 of 30
17. PW-4 further deposed that IO/SI Pankaj Kasana recorded the statement of complainant Sanjeev and prepared the rukka/Tahrir and handed over the same to ASI Amit for registration of FIR and he went to the PS for registration of FIR. After some time, at about 11:45 pm, ASI Amit came back at the spot along with original Rukka and copy of FIR and handing over the same to SI Pankaj Kasana. Thereafter, IO interrogated accused Atul, who was arrested by the IO vide arrest memo Ex.PW1/E and conducted personal search of accused vide memo Ex.PW1/F and the disclosure statement of accused was also recorded by the IO, Ex. PW2/B and IO also prepared the site plan at the instance of the complainant.
18. PW-4 further deposed that the information about the arrest of accused was given to his sister and IO recorded the supplementary statement of complainant. Accused Atul was sent to the lock up after medical examination and case property was deposited in the Malkhana. PW-4 correctly identified one mobile phone make Oppo bearing IMEI No. 869185032559493 and 869185032559485 Ex. P1 and one buttondar knife Ex.P2, which were recovered from accused. PW-4 correctly identified accused Atul in the Court.
19. PW-5 SI Pankaj Kasana deposed that on 06.09.2022, he was posted as ASI at PS Farsh Bazar, Delhi. On that day, he was on emergency duty and on receiving DD No. 110A, he went to the place of incident i.e. near Punit Public School, 60 Ft. Road, Vishwas Nagar, Delhi, where he met HC Pramod, ASI Ved Prakash, ASI Amit, complainant Sanjeev and State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 11 of 30 accused Atul. He further deposed that HC Pramod produced accused Atul, two mobile phones and one buttondar knife, which were recovered from the possession of accused, to him (IO). complainant Sanjeev disclosed to him that accused Atul was trying to run away after robbing his mobile phone and accused Atul was apprehended by Sanjeev with the help of HC Pramod, ASI Ved Prakash and ASI Amit near Punit Public School. He interrogated accused Atul, who disclosed that the mobile phone make Oppo A3S was robbed by him from the complainant. PW-5 seized the mobile phone make Oppo A3S purple (baigni) colour, IMEI No. 869185032559493, 869185032559485 vide seizure memo Ex.PW1/D. PW-5 deposed that the other mobile i.e. realme was found to be belonging to accused Atul and he prepared the sketch of the knife Ex.PW1/C, which was recovered from the right side pocket of wearing pant of accused Atul and the total length of the knife was found to be 22.8 cms, length of blade was found to be 10.3 cms, width of blade was found to be 2.4 cms, and length of handle was found to be 12.5 cms and the handle was made of aluminum type metal and there was a brass (pital) type metal button on the handle of the knife and with the help of that button, the knife could be opened and closed. He wrapped the above said knife in a white colour cloth and the prepared the pulanda of the same and he sealed the pulanda with the seal of PK and seized the same vide seizure memo Ex.PW1/B and the seal after use was handed over to HC Pramod and he prepared the handing over memo Ex.PW2/A and also recorded statement of complainant Sanjeev Ex.PW1/A and State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 12 of 30 he had prepared the Rukka/Tahrir Ex.PW5/A and handed over the same to ASI Amit for registration of FIR and ASI Amit went to the PS.
20. PW-5 deposed that after some time, ASI Amit returned from the PS along with copy of FIR and original Rukka/Tahrir and handed over the same to him. He prepared the site plan Ex.PW5/B at the instance of the complainant. After interrogation, accused Atul was arrested by PW-5 vide arrest memo Ex.PW1/E, personal search of accused vide memo Ex.PW1/F was also prepared and also recorded disclosure statement of accused vide statement Ex.PW2/B. Thereafter, he searched for the CCTV cameras installed near the place of incident, but in vain. Accused Atul was sent to the lock up after medical examination and case property of the present case was deposited in the Malkhana and he recorded the statements of ASI Amit, ASI Ved Prakash and HC Pramod u/s 161 Cr.PC and supplementary statement of complainant Sanjeev. He collected the copy of DAD Notification, Certificate u/s 65B Indian Evidence Act regarding registration of FIR, DD No. 110A and DD No. 93A, 95A (all dated 06.09.2022) and placed the same on case file.
21. PW-5 deposed that on 31.10.2022, he demanded bill of mobile phone from complainant but complainant Sanjeev stated that he did not have the same as he had purchased the mobile long time ago and he did not know from which shop, he had purchased the same. He correctly identified one mobile phone make Oppo bearing IMEI No. 869185032559493 and State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 13 of 30 869185032559485 Ex. P1 and one buttondar knife Ex. P2, which were recovered from accused. PW5 correctly identified accused Atul in the Court.
22. PW-6 HC Deepak deposed that he was working as MHC(M) at PS Farsh Bazar. On the intervening night of 06/07.09.2022, he was posted as MHC(M) at PS Farsh Bazar and he had brought Register No. 19 having the relevant entry i.e. 2616/2022 regarding the depositing of case property of the present case i.e. mobile phone make Oppo A3S purple (baigni) colour, IMEI No. 869185032559493, 869185032559485 and one buttondar knife duly sealed with the seal of PK and the articles recovered in the personal search of accused Atul. The photocopy of the same is Ex. PW6/A (OSR).
STATEMENT OF ACCUSED u/s 313 Cr.P.C.
23. Statement of accused Atul was recorded u/s 313 Cr.PC on 06.02.2024 and he denied the incriminating evidence put to him and stated that he was falsely implicated by the complainant in connivance with the police officials in the present case without any fault on his part and he had nothing to do as alleged by the IO. On that day of incident, there was an altercation between him and complainant as complainant got accidentally pushed by him and he started abusing and tried to hit him, when he resisted, he threatened that he would implicate him in false case of theft and he connived with the police person present on the spot and got him falsely implicated.
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 14 of 30APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING Arguments of Ld. LAC for accused
24. It is argued by Ld. LAC for the accused that he has been falsely implicated by the police at the instance of complainant and on the day of alleged incident, there was an altercation between accused and complainant as complainant got accidentally pushed by him and he started abusing and tried to hit him, when he resisted, he threatened that he would implicate him in false case of theft and he connived with the police persons present on the spot and got him falsely implicated and no knife or mobile phone have been recovered from the possession of accused and the same are planted by the police in connivance with complainant. It is also submitted that there is no bill of the mobile phone on record to show that the said mobile phones were of the complainant and there is no CDR to prove the location of accused and complainant at the spot on the relevant date and time.
25. It is also submitted that complainant Sanjeev was cross-examined and deposed that four public persons had gathered at the spot when he raised alarm and police officials did not inquire from these public persons and it may be inferred that police did not even attempt to make public persons as recovery witness/eye-witness and in his cross-examination, complainant stated that he was not able to see the knife when it was placed on his abdomen by accused and it may be inferred that the identification of knife was done by him at the instance of police.
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 15 of 30It is also submitted that during cross-examination, PW-1 further added that seizure memo of knife and mobile phone and arrest memo were not shown and not read over to him and he has admitted that documents Ex.PW1/B to Ex.PW1/F were signed by him at the instance of IO without reading the contents and the police investigation is not fair and testimonies of police officials are stereotyped and do not inspire confidence.
Arguments of Ld. Addl. PP for the State
26. Ld. APP for State has argued that prosecution has proved the case beyond reasonable doubt as knife was recovered from the accused, which was against the permissible size and violated the DAD notification which is admitted by the accused u/s 294 Cr.PC. PW-1 complainant and other witnesses have correctly identified the accused and since he had robbed the complainant of his mobile phone by showing knife and there is consistent testimony of PW-1/complainant in this regard which is further corroborated by PW-2, PW-3, PW-4 and PW-5. Also, the said robbed mobile phone was recovered from the possession of accused which is proved by complainant and other prosecution witnesses and thus, the prosecution has proved the charge of Section 392/397/411 IPC beyond reasonable doubts and there is no reason for the complainant to falsely implicate the accused.
27. I have heard the rival contentions and perused the records.
28. The prosecution has examined six witnesses to prove its case including PW-1/complainant.
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 16 of 3029. The charge against accused is u/s 392/397/411 IPC and Section 25 Arms Act as the allegations are that he had robbed the mobile phone from PW-1 by putting knife on his abdomen and robbed mobile phone and a prohibited knife was recovered from his possession.
30. 390 IPC . Robbery:-
In all robbery there is either theft or extortion. 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. Explanation.-- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
The robbery is punishable u/s 392 IPC.
397 IPC. 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".
31. As per the testimony of PW-1 Sanjeev, in the year 2022 at about 07:30 pm, when he reached 60 ft. Road, near Nakul Gali and his mobile phone make OPPO (black colour) was not working and one person, who was later identified by him as State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 17 of 30 accused Atul, came and showed a knife and told him to give the mobile or money or else, he would inflict knife injury (mobile de de ya paise de de, nahi to chaku maar dunga) and he snatched his mobile phone and fled away. PW-1 raised alarm and chased that person and at some distance, police officials apprehended the accused and recovered the said mobile. PW-1 identified the said robbed mobile Ex.P1 i.e. make OPPO having two IMEI numbers and also correctly identified the accused during trial. He proved his complaint Ex.PW1/A on the basis of which FIR Ex.P3 was registered and in the said complaint, he had stated the same facts as mentioned by him in his deposition qua the crime committed by the accused i.e. robbery of mobile by showing knife and their recovery from the accused. Though there are some omissions, but during cross-examination by Ld. APP, he admitted these facts and they were corroborated by PW-2, PW-3, PW-4 and PW-5.
32. PW-1 is consistent in his deposition vis-a-vis his complaint Ex.PW1/A and he had also identified the knife Ex.P2 which was recovered from the possession of accused. The contention of Ld. LAC for accused that he could not produce the mobile bill which shows that he was neither the owner nor in the possession of said mobile, is not tenable as he was the user of said mobile phone as he was carrying the same and accused was caught by the police persons just ahead of the spot where said mobile was looted and it was identified by complainant at that time and PW-3 also deposed that said mobile was having photo of the complainant, which shows that the mobile belonged to the complainant and it is natural that a person may not have a bill of State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 18 of 30 the mobile after long time particularly when it is out of warranty. Also, the complainant was chasing the accused by shouting 'chor-chor' as deposed by PW-2 ASI Ved Prakash, PW-3 Amit Kumar and PW-4 HC Pramod and they had caught hold of accused after hearing the said shouts and there was no occasion for the complainant to run after the accused which such shouts and it is not a case of mistaken identity and even accused has not taken the said defence as he was identified by the complainant then and there.
33. PW-1/complainant could not state the exact date of offence, but he has stated so when he was cross-examined by the Ld. APP and he was examined more than one year after the incident and was a labourer on daily wages and not well educated, so it is understandable that he might have not remembered the exact date, though he had told the year correctly initially in his deposition. PW-1 also admitted that the knife was put on his abdomen and it was seized by the IO vide seizure memo Ex.PW1/B and IO had prepared sketch of knife Ex.PW1/C, which was signed by him and IO seized the mobile vide seizure memo Ex.PW1/D and accused was arrested on spot on his identification vide arrest memo Ex.PW1/E and his personal search was conducted vide memo Ex.PW1/F. The contention of Ld. LAC that in his cross-examination, PW-1 stated that he had signed the said documents without reading its contents and knife and mobile phone were not recovered in his presence, but in his re-examination, he stated that the same mobile phone was shown to him in the PS and he had identified State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 19 of 30 the same and PW-1 has not stated that said mobile phone was not snatched/looted by accused rather in his cross-examination, he had denied the suggestion that no recovery of knife was effected from the accused.
34. The accused was illiterate daily wager and he has no knowledge about the police procedure and the documents prepared by the police, so he had given the answer that the said papers were not prepared in his presence, but he admitted his signatures on the said documents and identified the accused as the person who robbed the mobile phone by putting knife, recovered during investigation, so the accused is not entitled to any benefit from those answer given in the cross-examination of PW-1 qua documents Ex.PW1/B to Ex.PW1/F.
35. The version of PW-1 is corroborated by PW-2 ASI Ved Prakash, who was on area patrolling on 06.09.2022 and near Punit Public School at about 07:30 pm, he along with PW-3 saw a person shouting "chor-chor" while chasing a boy and with the help of PW-3 ASI Amit Kumar and PW-4 HC Pramod, he managed to apprehend that boy i.e. accused Atul and the person who was shouting was PW-1/Sanjeev and he disclosed about the incident and on search of accused by HC Pramod, a buttondar knife was recovered from the right side pocket of wearing capri and two mobile phones including OPPO mobile and one realme were also recovered and PW-1 Sanjeev had identified OPPO mobile as his own having two above mentioned IMEI numbers. PW-2 has correctly identified the accused in the court.
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 20 of 3036. Thus, PW-2 has corroborated the version of PW-1 regarding the incident on 06.09.2022 and also the time of 07:30 pm, coupled with recovery of mobile phone OPPO and knife from accused, which were identified by PW-2 in the court also. Similarly, PW-3 ASI Amit Kumar and PW-4 HC Pramod have also corroborated the version of PW-1 regarding those facts and they too have identified the accused Atul as the person, who was caught by them with the said looted mobile and buttondar knife and they also identified the said knife and mobile phone. Their versions was further corroborated by PW-5/IO.
37. Further, PW-2, PW-3, PW-4 and PW-5/IO have deposed that the length of the knife was 22.8 cms, width of blade was 2.4 cms, length of blade was found to be 10.3 cms and length of handle was found to be 12.5 cms and same are mentioned in sketch of knife Ex.PW1/C, which was signed by PW-2, PW-3, PW-4, PW-5 and PW-1 complainant and the said buttondar knife was seized by the IO/PW-5 and its dimensions have violated DAD notification dt. 17.02.1979, which makes possession of such knife an offence u/s 25 Arms Act.
38. The said DAD notification is dt. 17.02.1979 vide no. F.13/203/78-Home (G) and as follows:-
"Whereas the administrator is of the opinion that having regard to the circumstances prevailing in the Union Territory of Delhi, it is necessary and expedient in the public interest that the acquisition, possession and carrying of spring-actuated knives, gararidar knives, buttondar knives and other knives which open or close with any other mechanical device with a blade of any size or folding knives with a sharp edged blade of 7.62 cms or more in length and 1.72 cms or more in State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 21 of 30 breadth in public places should be regulated.
Now, therefore, in exercise of the powers conferred by Section 4 of the Arms Act, 1959, read with the Govt. Of India, Ministry of Home Affairs, Notification No. 2/2/69 UTL(i) dt. 21.06.1969, and in suppression of this Administration's notification no. F.13(71)/78-Home (G) dt. 10.05.1978, the Administrator hereby directs that the said Section 4 shall apply to the said territory with effect from the date of publication of this notification in the Delhi Gazette in respect of the acquisition, possession and carrying of the said arms in public places only."
39. 25 Arms Act. Punishment for certain offences.
Section 25 (1B). Whoever,
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3;
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section;
(c) xxxxxxx
(d) xxxxxxx
(e) xxxxxxx
(f) xxxxxxx
(g) xxxxxxx
(h) xxxxxxx (I) xxxxxxx shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to three years and shall also be liable to fine.
40. The length of the said buttondar knife was more than 7.62 cms and breadth was more than 1.72 cms and it was used in public place by accused Atul to commit a crime of robbery and it State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 22 of 30 was found in his possession, and thus he had violated the DAD notification which was admitted by the accused Ex.P8 and it is an offence u/s 25 of the Arms Act.
41. In Appabhai Another Vs. State of Gujarat, AIR 1988 SC 696, Hon'ble Supreme Court held that non-joining of public person is no ground to throw the prosecution case.
42. So, non-joining of public persons will not affect the prosecution case, particularly, when accused was caught on the spot and there are multiple witnesses (police witnesses) of that fact and of recovery from him.
43. In Girja Prasad (Dead) by Lrs Vs. State of Madhya Pradesh, AIR 2007 SC 3106, Hon'ble Supreme Court held that :-
"24. In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 23 of 30 conviction can be based on such evidence."
44. In Leela Ram Vs. State of Haryana, AIR 1999 SC 3717, Hon'ble Supreme Court held that there is bound to be some discrepancies between the narration of different witnesses when they speak on details and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
45. PW-5 IO has deposed that on 06.09.2022, he was on emergency duty and on receipt of DD No. 110-A, he went to the spot and met PW-1, PW2, PW3 and PW-4 and PW-4 HC Pramod had produced accused Atul with two mobile phones and one buttondar knife, which was recovered from him and complainant Sanjeev disclosed him that accused Atul tried to run away after robbing his mobile phone and was apprehended by police with his help near Punit Public School and accused admitted his involvement in the crime and he prepared the documents Ex.PW1/D and sketch of knife Ex.PW1/C and the total length of the knife was found to be 22.8 cms, width of blade was found to be 2.4 cms, length of blade was found to be 10.3 cms and length of handle was found to be 12.5 cms and PW-5 corroborated the testimony of PW-1 as well as PW-2, PW-3 and PW-4 and correctly identified the accused in the court and also deposed that he tried for the CCTV cameras nearby, but could not find any CCTV camera and nothing substantial came out in his cross- examination to doubt his veracity of this witness.
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 24 of 3046. PW-6 HC Deepak is a formal witness, who had proved the entry malkhana register no. 19, Ex.PW6/A regarding deposition of said mobile phone OPPO Ex.P1 and duly sealed buttondar knife with the seal of PK.
47. Considering the above facts proved on record and the settled precedents, prosecution has proved the charge of Section 25/54/59 Arms Act against accused Atul beyond reasonable doubt.
48. In case titled as Ram Ratan Vs. State of MP, 2021 SCC Online SC 1279, Hon'ble Supreme Court held that Section 397 IPC would be attracted against an accused, who had used the deadly weapons and not against the offender, who had not used any deadly weapon and case of Sh. Phool Kumar Vs. Delhi Administration, 1975 (1) SCC 797 and Dilawar Singh Vs. State of Delhi, 2007 (12) SCC 641 were relied upon.
49. In Dilawar (supra), it was held that u/s 397 IPC, offender refers to only culprit, who actually used deadly weapon. When, only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not constructive liablity and section 397 IPC is attracted only against the particular accused, who uses the deadly weapon or does any of the acts mentioned in the provision.
50. In the present case knife was used by accused while committing robbery, which is a deadly weapon and he had committted the extortion from complainant after he had put the complainant in fear of instant death, hurt and wrongful restraint State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 25 of 30 by putting the knife on his abdomen and by putting him in fear, induced him to deliver the mobile phone and ran away from the spot and later caught hold by the police after some time.
51. From the consistent testimony of PW-1/eye-witness and PW-2, PW-3 and PW-4, who caught him with mobile of PW- 1 and the knife used in the crime, the prosecution has proved the offences u/s 392/397 IPC against the accused Atul beyond reasonable doubts as nothing has come in their cross- examination to doubt the prosecution case and these witnesses has proved the documents Ex.PW1/B to Ex.PW1/F and mobile phone Ex.P1 and knife Ex.P2.
52. PW-2, PW-3 and PW-4 also proved the registration of FIR and the same is admitted by the accused as Ex.P3 and its certificate u/s 65B Indian Evidence Act Ex.P4, u/s 294 Cr.PC and there is no dispute in the same.
53. The accused has also admitted DD no. 110-A, 93 and 93-A, dt. 06.09.2022, Ex.P5, Ex.P6 and Ex.P7. In GD No. 93-A Ex.P6, it is recorded that PW-4/HC Pramod was on area patrolling on 06.09.2022 after 04:53 pm and as per the GD No. 95-A,Ex.P7, PW-2/ASI Ved Prakash and PW-3/ASI Amit were on patrolling duty on 06.09.2022 at 05:05 pm, which further corroborates the fact that all these witnesses were on patrolling duty on the day of incident.
54. As per Ex.P5, it was recorded that PW-4/HC Pramod had given the information that he along with ASI Ved Prakash and ASI Amit Kumar were on patrolling duty and near Punit Public School, 60 ft. Road, one person was shouting 'chor-chor', State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 26 of 30 and then HC Pramod had caught hold of person, who was running and it was intimated by the person shouting that the other one had snatched his mobile by putting knife on his abdomen and two mobile phones and one knife was recovered from his right pocket and IO was called at the spot. It shows that the entry in the GD was promtply and correctly made which further corroborate the version of PW-1 and there is no dispute of the said GD No. 110A.
55. The stolen property is being dealt with u/s 410 and 411 IPC.
410 IPC. Stolen property.--
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
411 IPC. Dishonestly receiving stolen property.--
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 27 of 30
56. Section 114 Indian Evidence Act. Court may presume existence of certain facts.-
"The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relations to the facts of the particular case. The Court may presume-
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"
57. It has been proved by the prosecution from the testimony of PW-1, PW2, PW-3 and PW-4 that the said snatched/ looted mobile phone was recovered from the possession of accused and he could not give any bonafide reason for such possession and he had received and retained the same dishonestly as he knew that he had snatched the same from PW-1/ complainant and it was stolen property and accused failed to account for the same and presumption u/s 114 (a) of Indian Evidence Act has to be raised against the accused, which he failed to rebut during trial. Thus, prosecution has been able to prove the ingredients of section 411 IPC against accused beyond reasonable doubt.
DEFENCE OF THE ACCUSED
58. The accused had denied the incriminating evidence put to him u/s 313 Cr.PC and stated that he was falsely implicated by the complainant in connivance with the police officials in the present case without any fault on his part and he State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 28 of 30 had nothing to do as alleged by the IO. On that day of incident, there was an altercation between him and complainant as complainant got accidentally pushed by him and he started abusing and tried to hit him, when he resisted, he threatened that he will implicate him in false case of theft and he connived with the police person present on the spot and got him falsely implicated.
59. The accused has not examined any witness in his defence regarding the facts pleaded by him in his defence and there was no previous enmity between accused and complainant and even they were not known to each other. The complainant and other police officials, who caught hold the accused, had correctly identified him during trial and the defence of the accused appears to be an afterthought having no basis and accused failed to create any doubt in the cross-examination of prosecution witnesses to doubt their veracity and the case of prosecution, which was proved by them beyond reasonable doubt in accordance with law.
CONCLUSION
60. In view of the discussion above, the evidence led by Prosecution is cogent, trustworthy, consistent, corroborative and inspires confidence. In the totality of the circumstances brought on record by way of evidence, this court is of the view that the prosecution has proved its case against accused Atul beyond reasonable doubt for committing robbery against complainant Sanjeev by putting knife on his body and the looted mobile phone as well as the used knife, which was beyond permissible State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 29 of 30 limits, were recovered from his possession.
61. Consequently, the accused Atul is convicted of the offences punishable under section 392/397/411 IPC & 25/54/59 Arms Act. Bail bonds cancelled. Surety stands discharged.
File be consigned to Record Room after necessary compliance.
PRONOUNCED IN OPEN COURT ON THIS 5th DAY of March, 2024.
Digitally signed by KUMAR KUMAR RAJAT
RAJAT Date:
2024.03.05
15:59:57 +0530
(KUMAR RAJAT)
ASJ-07/SHD/KKD Court/Delhi
05.03.2024
State Vs Atul FIR No. 0455/2022 PS Farsh Bazar Page 30 of 30