Delhi District Court
State vs Sheikh Firoj Dhingra on 22 December, 2016
FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI S.C. No. 57874/16 State Versus Sheikh Firoj Dhingra S/o Sh. Sheikh R/o Jhuggi No. N38/B40, CD Park, Jahangir Puri, Delhi. FIR No. : 258/14 Police Station : Jahangir Puri Under Sections : 392/394/397/34 IPC & 25/27/54/59 Arms Act Date of committal to Sessions Court : 18.07.2014 Date on which judgment was reserved: 22.12.2016 Date on which Judgment pronounced : 22.12.2016 JUDGMENT
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i) That on 31.03.2014, at 7.40 am, intimation with regard to quarrel at CD Block, THut, Jahangir Puri near Sargam Electronics, was received in PS Jahangir Puri and same was recorded vide DD no. 11A (Ex. PW6/A). Same was entrusted to ASI Arvind Kumar (PW9) for necessary action. Accordingly, ASI Arvind Kumar aongwith Ct. Mangal (PW3) rushed to the place of occurrence, where it was revealed on enquiry that State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 1 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 injured has already been removed by PCR to hospital.
Accordingly, they rushed to said hospital, where they collected MLC (Ex.PW7/A) of injured Suresh (PW2), who was declared fit for statement;
(ii) ASI Arvind Kumar recorded statement (Ex.PW2/A) of injured/complainant Suresh Kumar, wherein he claimed to have been robbed of his mobile phone and cash amount of Rs. 600/ by two boys at the point of knife. On the basis of said statement, FIR in question was got registered through Ct. Mangal and investigation was entrusted to ASI Arvind Kumar;
(iii) It is further the case of prosecution that IO ASI Arvind Kumar prepared rough site plan of the place of occurrence at the instance of complainant; seized the relevant exhibit i.e. half brick piece lying at the scene of crime, after preparing its sealed pullanda and also recorded statements U/s 161 Cr.P.C. of the relevant witnesses;
(iv) It is further the case of prosecution that on 01.04.2014, ASI Arvind Kumar alongwith complainant Suresh Kumar, Ct. Amrender and Ct. Nitin joined the investigation and apprehended accused alongwith JCL Farid Alam on the identification of complainant from behind Khushal Cinema, H1 Park, Jahangir Puri, Delhi. One dagger (churi) was recovered from the possession of accused. The complainant identified the State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 2 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 same to be the same weapon which was used by accused while committing robbery against him. After carrying out relevant proceedings with regard to said dagger, ASI Arvind Kumar prepared its sealed pullanda. Accused made disclosure statement and got recovered robbed mobile phone from his jhuggi. Relevant proceedings with regard to recovered mobile phone, was also carried out and its sealed pullanda was prepared. IO obtained result on MLC of injured/complainant Suresh Kumar and also collected CDRs of robbed mobile phone. He also recorded statements U/s 161 Cr.P.C. of the relevant witnesses. After completion of investigation, chargesheet had been filed before the Court.
2. After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
3. After hearing arguments on the point of charge, Court framed the charge in respect of offences punishable U/s 394/397/34 IPC and separate charge in respect of offence punishable U/s 25/54/59 Arms Act against accused , vide order dated 13.11.2014, to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined 11 witnesses namely PW1 Sh. Anand Kumar, PW2 Sh. Suresh Kumar, PW3 Ct Mangal, PW4 SI Narender Kumar, PW5 HC Jitender, PW6 HC Sunil Dutt, PW7 Dr. State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 3 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 R.S Mishra, PW8 Ct. Amrendra, PW9 ASI Arvind Kumar, PW10 Sh Dalip and PW11 HC Guman Singh during trial.
5. It may be noted here that on 06.06.2016, Ld. Additional PP dropped PW/Ahlmad during trial as true copy of order passed by Ld. Juvenile Justice Board, was already placed on judicial record. He also dropped PW/Record Clerk from Delhi Administration during trial as the relevant Notification brought by witness, were taken on record. On 24.11.16, Ld. Additional PP also dropped PW namely Ct. Nitin No. 1361/NW from the list of witnesses as he was a witness of repetitive facts, in respect of which PW8 Ct. Amrendra and PW9 IO ASI Arvind Kumar had already been examined during trial.
6. Thereafter, statement U/s 313 Cr.P.C. of accused was recorded, during which all the incriminating evidence which came on record, were put to him. He denied the same and claimed that he is innocent and has been falsely implicated in this case. He also opted to lead evidence towards his defence and examined one defence witness namely Sh. Sheikh Manzoor as DW1 towards his defence evidence.
7. I have heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Amicus Curiae Sh. J.P. Singh, Adv. on behalf of accused. I have also gone through the material available on record.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 4 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 witnesses are detailed as under: PUBLIC WITNESSES:
9. PW1 Sh. Anand Kumar: He was running mobile shop under the name and style of Mehendi Electronics at Main Market, Jahangir Puri. He deposed that on 02.01.2013, Suresh had purchased mobile phone make Nokia101 from his shop, for Rs. 1450/ vide invoice/ bill no. 847 Ex. PW1/A bearing his endorsement and the stamp of his shop. He has not been cross examined by accused despite grant of opportunity.
10. PW2 Sh. Suresh Kumar: He is the victim of this case. He has deposed on the lines of prosecution story during chief examination by testifying that on 31.03.2014 at about 6.30 am when he was retuning back to his house after purchasing ghee from Mother Dairy and had reached at 900 Wali Gali, the accused alongwith another boy came from front side. Accused hit on his neck with grip of hand and made him to lie down on the ground, whereafter he took knife from other boy and put the same on his stomach. The other boy brought half brick piece and hit the same on his leg and knee, due to which he sustained injuries on said body parts. Accused took out mobile phone make Nokia and cash amount of Rs. 600/ from his pocket. He raised alarm but no one came to help him. Somehow, he reached his house and PCR call at 100 number was made from mobile phone of his brother. PCR Van came and removed him to BJRM hospital, where local police came and recorded his statement Ex. PW2/A. Thereafter, he alongwith IO returned back to the spot, where IO prepared site plan Ex.
State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 5 of 24FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 PW2/B at his instance and also seized half brick piece found lying over there after preparing its sealed pullanda, vide memo Ex.PW2/C. He also deposed that he had handed over photocopy of invoice/cash memo of robbed mobile phone to IO, who seized the same vide memo Ex.PW2/D. He further deposed that on 01.04.2014, he had joined the investigation with IO ASI Arvind Kumar and other police staff. They reached near Kushal Cinema, Jhangir Puri, wherefrom accused was arrested vide memo Ex. PW2/E. He identified the dagger/knife Ex PX1 to be the same knife which was used by accused at the time of committing robbery against him. He also identified half brick piece as Ex. PX2 to be the same brick piece which was used by other assailant. He also produced cash invoice no. 847 of robbed mobile phone and exhibited the same as Ex.PW2/P1 (previously exhibited as Ex.PW1/A). He also produced the robbed mobile phone got released on superdari by him, during trial and same was exhibited as Ex.PW2/P2.
During his cross examination, he deposed that it was the first day of Navratras on 31.03.2014 and since no Grocery shop was opened in the early morning hours, he had gone to purchase Ghee from Mother Dairy. He was carrying cash of Rs. 800/ while leaving house and had purchased half Kg Ghee for Rs. 200/. His brother had made call at 100 number from his mobile phone in his presence. He admitted that accused was residing in the same locality and he was previously known to him prior to the incident. He did not receive any injury when accused put knife on his stomach. His State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 6 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 blood stained clothes were not seized by IO during investigation. He had gone to PS Jahangir Puri on 01.04.2014, whereafter he had joined investigation with IO and local police staff. He had seen the knife at the time when accused had put the said knife on his stomach.
11. PW10 Sh. Dalip: He is the brother of victim Suresh Kumar. He had made PCR call at 100 number from his mobile no. 8586878171. He deposed that on 31.03.2014 at about 7.15/7.30 am, while he was present in the house, his elder brother Suresh came in front of his house and called him there. Suresh was seen in injured condition and was bleeding from his legs. On enquiry, Suresh told him about the incident which took place against him. Accordingly, he had made PCR call, on which PCR Van came and removed his brother to BJRM hospital.
During cross examination, he deposed that Suresh was not able to stand properly and he was standing by holding Takhat at that time. He admitted that he was not an eye witness of the incident. POLICE WITNESSES:
12. PW3 Ct. Mangal & PW9 ASI Arvind Kumar: Both these witnesses had visited the place of occurrence on receipt of DD no. 11A Ex.PW6/A. They deposed on identical lines that from the spot, they rushed to BJRM hospital, where PW9 collected MLC of injured Suresh who was declared fit for statement. Accordingly, PW9 had recorded statement Ex. PW2/A of victim Suresh and got the FIR registered through PW3 and came back to the spot alongwith complainant/injured. PW9 seized blood stained State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 7 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 brick piece after preparing its pullanda sealed with the seal of AK, vide memo Ex. PW2/C. The photocopy of cash invoice (Ex. PW2/P1) of robbed mobile phone produced by complainant, was seized vide memo Ex. PW2/B. PW9 further deposed that on 01.04.2014, complainant Suresh visited PS Jahangir Puri, whereafter they both alongwith Ct. Nitin and Ct. Amrendra joined investigation in this case and left for search of the offender. When they were present near Khushal Cinema Hall near H1 Park, Jahangir Puri, complainant identified accused Sheikh Firoz @ Dhingra who alongwith JCL Farid Alam were standing inside the park, to be the offenders. Accordingly, they were apprehended by them. He arrested accused Sheikh Firoz @ Dhingra, vide memo Ex. PW2/E. One dagger (knife) was recovered from the possession of accused and complainant identified said dagger to be the same weapon which was used by accused in the commission of offence against him. After preparing its rough sketch Ex.PW2/X1 and its sealed pullanda sealed with the seal of AK, he seized the said weapon vide memo Ex.PW2/X. Thereafter, complainant Suresh left the said place. Accused made disclosure statement Ex. PW8/A and got recovered robbed mobile phone from inside his jhuggi no. N38/B24, CD Park, Jahangir Puri. After mentioning IMEI numbers of recovered mobile phone in its seizure memo Ex. PW8/C, its sealed pullanda sealed with the seal of AK was prepared. PW9 also identified the dagger (knife) as Ex. PX1 and half brick piece as Ex. PX2 during trial.
During cross examination, PW3 deposed that blood stained State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 8 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 clothes of injured were not seized by IO. He could not disclose as to whether there was any blood stain on brick piece or not. The said brick piece was lying at a distance of three feet from the showroom of Sargam Electronics.
During cross examination, PW9 admitted that brick piece ( Ex. PX2) was not sent to FSL for expert opinion and even subsequent opinion with regard to said brick piece, was not obtained from concerned doctor. He could not disclose the departure entry number made in roznamcha while leaving PS on 01.04.2014. He admitted that place of apprehension of accused was public place. He deposed that despite requests made to 45 public persons for joining the proceedings, none agreed. He also admitted that Jhuggi of accused was surrounded by other residential houses and despite request made by him to 34 nearby residents for joining the investigation, none agreed. The mother of accused was found present inside the jhuggi but she went away when they entered inside the jhuggi.
13. PW4 SI Narender Kumar: He was working as Juvenile Welfare Officer (JWO) in PS on 01.04.2014 when JCL Farid Alam was apprehended in this case. He deposed that on receipt of information vide DD no. 24A Ex. PW4/A from ASI Arvind Kumar regarding apprehension of JCL Farid Alam, he went to the place of his apprehension and had prepared apprehension memo of said JCL. He has not been cross examined by accused despite grant of opportunity.
14. PW5 HC Jitender: He was working as Duty Officer in PS Jahangir Puri on 31.03.2014. He proved factum regarding registration of State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 9 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 FIR in question by him on the basis of rukka brought by Ct. Mangal at about 9.25 am on that day. He proved copy of said FIR as Ex.PW5/A and his endorsement as Ex.PW5/B made on the rukka.
15. PW6 HC Sunil Dutt: He was working as Duty Officer on the intervening night of 30/31032014 from 12.00 midnight till 8.00 am. He deposed that at about 7.40 am, intimation regarding quarrel near Sargam Electronics, CBlock, H. No. 786, THuts, Jahangir Puri, Delhi was recorded vide DD no. 11A. He exhibited copy of DD No. 11A dt. 31.03.2014 as Ex.PW6/A. He has not been cross examined by accused despite grant of opportunity.
16. PW8 Ct. Amrendra: He had joined the investigation of this case with IO ASI Arvind Kumar, Ct. Nitin and complainant Suresh on 01.04.2014 when accused and JCL Farid Alam were apprehended on the identification of complainant from inside the park situated near Khushal Cinema Hall, near H1 Park, Jahangir Puri. He deposed on similar lines as deposed by PW9 ASI Arvind Kumar with regard to the relevant proceedings carried out after arrest of accused Sheikh Firoz @ Dhingra, recovery of dagger (knife) from possession of said accused and recovery of robbed mobile phone at the instance of said accused from his jhuggi in pursuance of disclosure statement Ex. PW8/A made by him before the police and relevant proceedings with regard to said mobile phone carried out by the IO.
During cross examination, he also could not disclose departure entry number made in roznamcha while leaving PS on 01.04.2014. He also State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 10 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 deposed that IO had requested 45 public persons to join the proceedings at the place of apprehension of accused but none agreed. He testified that IO did not request any nearby resident of jhuggi of accused to join the investigation. Mother of accused met them inside the said jhuggi but she was not requested by IO to join the investigation.
17. PW11 HC Guman Singh: This witness was working as MHC(M) in PS Jahangir Puri during the relevant period. He deposed that on 31.03.2014, ASI Arvind Kumar had deposited one pullanda sealed with the seal of AK containing brick piece in malkhana, vide entry at serial no. 2962 of Register no. 19. He proved copy of said entry as Ex. PW11/A. He further deposed that on 01.04.2014, ASI Arvind Kumar had deposited one sealed pullanda sealed with the seal of AK containing churri (dagger) and another sealed pullanda sealed with the seal of AK containing mobile phone make Nokia in malkhana, vide entry at serial no. 2963 of Register no. 19. He proved copy of said entry as Ex. PW11/B. He further deposed that on 05.05.2014, the mobile phone make Nokia was released on superdari to Suresh S/o Sh. Sant Ram, as per order of Court.
In his crossexamination, he deposed that he did not obtain signatures of IO in register no. 19 at the time of depositing the aforesaid pullandas in the malkhana.
MEDICAL WITNESSES:
18. PW7 Dr. R.S. Mishra: He deposed that Dr. Shahban had examined injured namely Suresh in BJRM Hospital on 31.03.2014 under his State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 11 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 supervision, vide MLC Ex.PW7/A. According to MLC Ex.PW7/A, the following injuries were found on the body of injured Suresh:
1. Abrasion over right side size 3 x 4 cm.
2. Abrasion over left knee joint 2 x 0.5 cm.
3. Abrasion over anterior aspect of right leg 3 x 0.5 cm.
He identified the signature of Dr. Shahban at pointA on MLC Ex.PW7/A and deposed that injured had sustained simple injuries.
DEFENCE WITNSSES:
19. DW1 Sh. Sheikh Manzoor: He deposed that he did not remember the exact date, month or year but on one day when he had gone to Choudhary Dairy for purchasing milk, accused was found standing in front of said Dairy. Thereafter, accused had accompanied with one boy namely Farid and both of them were joking with each other. In the meantime, accused picked up one brick and threw it towards Farid but same hit against one person whose name he did not know. Thereafter, he returned back to his house.
During cross examination on behalf of State, he testified that accused was known to him since childhood and he had come to the Court at the instance of his family members. It was within his knowledge that accused is also involved in one murder case. He denied the suggestion that he had not seen any such incident or that he was deposing falsely in that regard at the instance of family members of accused.
State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 12 of 24FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 ARGUMENTS ADVANCED AND CASE LAW CITED
20. Ld Additional PP of State argued that the prosecution has established the charges levelled against the accused beyond reasonable doubt. In support of said contention, he heavily relied upon testimony of PW2 Suresh, who is complainant in this case. He argued that PW2 Suresh has fully supported the case of prosecution on all the material points and has also identified accused to be the offender who had committed robbery of his mobile phone at the point of knife. He further submitted that dagger Ex (PX1) has also been recovered from the possession of accused and said dagger is a dangerous weapon. He, therefore, urged that the accused should be convicted in this case.
21. On the other hand, Ld Amicus Curiae argued that the prosecution has failed to prove its case against the accused beyond shadow of doubt. He submitted that the entire burden to prove its case rested upon the prosecution. He claimed that there are material improvements made by PW2 Suresh Kumar (complainant) during trial and he being interested witness, Court should not rely upon his testimony. He further argued that no independent public witness has been joined either at the time of apprehension of accused and alleged recovery of dagger from his possession or even at the time of alleged recovery of mobile phone at the instance of accused from inside his jhuggi. He therefore, submitted that recovery of dagger and mobile phone from the possession/at the instance of accused, is totally doubtful. He therefore, urged that accused is entitled to benefit of State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 13 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 doubt.
22. So far as the offence punishable U/s 25 Arms Act is concerned, it may be noted that the prosecution has failed to establish the charge for the said offence. The reason being that in order to constitute the offence U/s 25 Arms Act, the prosecution is required to prove beyond doubt that accused was found in possession of knife of the description mentioned in Notification issued by Delhi Administration and in contravention of the said Notification. The copy of Notification dated 29.10.1980 is available on record. Same would show that it is the possession of spring actuated knives, graridar knives, buttondar knives and other knives which open or close with any other mechanical device, would be covered by the said Notification. In the present case, the recovered dagger would show that same is neither spring actuated nor graridar nor buttondar and it also does not open or close with any other mechanical device. That being so, Court finds considerable force in the argument raised on behalf of accused that such type of dagger is not covered by the relevant Notification issued by Delhi Administration and thus, the prosecution has failed to bring home the guilt of accused for the offence punishable U/s 25 Arms Act beyond shadow of doubt.
23. This brings me down to the charge with regard to offences punishable U/s 394/34 IPC & Section 397 IPC. As already noted above, PW2 Suresh Kumar is the star witness of prosecution being victim/complainant against whom robbery was committed in this case. He is found to have fully supported the case of prosecution on all material points.
State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 14 of 24FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 He has given vivid description of the incident by disclosing the entire sequence of facts leading to the commission of offence of robbery of his mobile phone and cash amount of Rs. 600/ committed against him. He not only correctly identified accused to be amongst offenders who had committed robbery against him at the point of knife but also correctly identified the dagger ( Ex. PX1) as also the other weapon of offence i.e. half brick piece (Ex. PX2) during trial.
24. The accused could not impeach the testimony of aforesaid witness through litmus test of cross examination. Rather, the defence raised by accused by putting the suggestion to him that while he (accused) along with his brother were throwing stone at stray dog, the stone accidentally hit complainant on his leg leading to an altercation between them, would prove the presence of accused at the place of occurrence on the given date and time. Same also corroborates the testimony of PW2 in so far as hitting of brick piece on his leg is concerned. This is apart from the fact that said defence raised by accused could not be substantiated by him either during cross examination of prosecution witnesses or otherwise. Although, accused has examined DW1 Sh. Sheikh Manzoor in order to prove the said defence but the testimony of DW1 would clearly show that he is an interested witness and even his presence at the time of occurrence, is highly doubtful. DW1 did not disclose any particular date, month or year of which he was narrating the incident before the Court. In other words, it cannot be said that the description of the occurrence disclosed by DW1 had any State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 15 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 connection with the incident in question. DW1 deposed contrary to the defence raised by accused during cross examination of PW2 Suresh, inasmuch as accused suggested to PW2 that some stray dog had followed him and his younger brother when they had gone to answer the call of nature and he had thrown piece of stone towards the dog but it accidentally hit complainant on his leg, whereas DW1 testified that accused had thrown brick towards Farid but the said brick struck over another person whose name he did not know. Moreover, accused nowhere gave suggestion during cross examination of PW2 that DW1 was also present at the time of incident in question. Thus, the testimony of DW1 cannot be believed in the eyes of law.
25. PW2 Suresh Kumar is shown to have sustained injuries due to throwing of stone by one of the assailants. His MLC (Ex. PW7/A) of BJRM hospital, would show that he had sustained abrasions over right thigh, over left knee joint and over anterior aspect of right leg. The testimony of PW7 Dr. R.S. Mishra also corroborates the ocular evidence in the form of testimony of PW2 made in this regard. The accused could not impeach the testimony of PW7 during his cross examination. Rather, the suggestion has been put to PW7 from the side of accused that injuries mentioned in MLC Ex. PW7/A could be possible due to fall on blunt object or by falling down from stair case. It is nowhere the defence raised by accused during cross examination of PW2 or during cross examination of any other witness that PW2 had sustained those injuries either due to falling on blunt object or by State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 16 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 falling down from stair case.
26. Moreover, PW10 Dalip has also corroborated the testimony of PW2 Suresh Kumar inasmuch as he also testified that Suresh Kumar was in injured condition and was bleeding from his legs when he had reached in front of his house after the incident in question. Again, nothing could be elicited during cross examination of PW10 so as to discredit his testimony in this regard.
27. Be that as it may, PW2 Suresh Kumar had sustained injuries during the course of robbery committed against him. Thus, he is an injured witness in this case. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
28. In the recent judgment delivered by Hon'ble Apex Court in the matter titled as "Mano Dutt & Anr. Vs. State of U.P." reported at 2012 IIIAD (SC) 253, it has been held as under: "xxxxx In our view, nonexamination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 17 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weight age that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. xxxxxx"
29. In another judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." xxxxxxx"
30. I do not find any force in the argument raised on behalf of accused that PW2 and PW10 both are interested witnesses being real brothers or that said two witnesses got him falsely implicated in this case. He has failed to attribute any kind of ill will or animosity between him and said two witnesses prior to the incident in question. Thus, there is no reason for said two witnesses to depose falsely against him during trial.State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 18 of 24
FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016
31. PW3 namely Ct. Mangal and PW9 namely ASI Arvind Kumar also corroborated the testimony of PW2 and deposed on the lines of prosecution during trial. Both the said police witnesses remained consistent throughout their depositions and accused could not elicit anything contrary to the case of prosecution by way of their cross examination. Moreover, the testimony of PW1 Anand Kumar also corroborates the prosecution story to the extent that mobile phone make Nokia 101 was belonging to complainant of this case. PW1 has proved the invoice/cash memo dated 02.01.2013 as Ex. PW1/A (also exhibited as Ex. PW2/P1) during trial. The accused preferred not to cross examine the said witness. Furthermore, the IMEI number of said mobile phone matches with the IMEI number of recovered robbed mobile phone from inside the jhuggi of accused at his instance, as mentioned in its seizure memo Ex. PW8/C.
32. There is no substance in the contention raised on behalf of accused that police officials got him falsely implicated in this case in connivance with complainant Suresh Kumar (PW2) and also planted dagger and robbed mobile phone upon him, in order to create false evidence in this case. It would be anybody's guess as to why police officials would falsely implicate the accused. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police officials could have done so. But no such reason is even mentioned or suggested to State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 19 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 the police witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating him. In the absence of this, I do not find any reason to throw out the testimonies of police witnesses.
33. Moreover, there is recovery of robbed mobile phone (Ex PX2) and dagger( Ex PX1) from the possession of accused. Thus, there is no iota of doubt that it was the accused who had committed robbery against the complainant namely Sh Suresh Kumar (PW2) at the point of said dagger. Considering the manner in which robbery is shown to have been committed at the point of said dagger, there is no iota of doubt that said dagger is a deadly weapon within the meaning of expression ' deadly weapon' as used in Section 397 IPC.
34. The next limb of argument raised by Ld. Amicus Curiae is that recovery of dagger and robbed mobile from the possession/ at the instance of accused is doubtful for non joining of independent public witnesses despite their availability. Although, the said argument of Ld defence counsel appears to be impressive at the first instance but same does not carry any force in the eyes of law. No doubt, it has come on record during depositions of PW8 Ct. Amrender and PW9 ASI Arvind Kumar (IO) that 45 public persons were present at the place of apprehension of accused, as also that there were nearby residents available at the time of effecting recovery of robbed mobile phone from inside the jhuggi of accused. However, the State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 20 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 reason for non joining of those public persons has been sufficiently explained by said prosecution witnesses that those public persons were requested to join the proceedings but they did not agree for the same. Thus, the recovery of dagger and robbed mobile phone cannot be termed as doubtful and the case of prosecution cannot be thrown away on this ground. The reason being that it is an archaic notion that public persons are generally reluctant to involve themselves in the police proceedings.
35. In the matter titled as "State of U.P. vs. Anil Singh" reported at AIR 1988 SC 1998, it was held as under: "xxxxxx in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
It is next argued by learned counsel for the accused that there are no independent witness joined by the investigating agency. PW6 is a public person and he's not a police official. There is no reason for PW 6 to falsely implicate the accused in the present case. Even there is no reason for the other police officials to falsely depose against the accused or implicate the accused. The case of prostitution is that few independent witnesses were indeed requested to become witness but they did not agree. It is not uncommon these days that people are reluctant to become witness in criminal trial State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 21 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 cases. In such circumstances no benefit can be given to the accused for non joining off independent public witnesses. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out. Xxxxxx"
36. Hon'ble Supreme Court in the matter titled as "Ambika Prasad & Anr Vs. State" reported at 2002 (2) CRIMES 63 (SC) has held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses.
37. There is no merit in the next argument raised on behalf of accused that use of deadly weapon i.e. dagger by accused while committing robbery against complainant, should be viewed with suspicion because no injury mark caused by sharp edged weapon is mentioned in MLC Ex.
State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 22 of 24FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 PW7/A of the victim. It is nowhere the case of prosecution that accused had inflicted any sort of injury upon the victim with the said weapon. PW2 Suresh Kumar, who is the victim in this case, categorically testified that the accused had put the said weapon in his abdomen while committing the robbery of his mobile phone and cash amount of Rs. 600/.
38. Ld defence counsel further argued that the name of accused is not mentioned either in DD no. 11A ( Ex. PW6/A) or even in MLC of victim, despite the fact that accused was previously known to the victim, as admitted by victim i.e. PW2 during his cross examination dated 13.01.2015. No doubt, PW2 has admitted the fact that accused and his family were known to him prior to the incident in question. However, it is relevant to note that accused was not residing in the near vicinity of the house of victim, as explained by him that accused was residing in some other gali. Thus, it cannot be expected that the victim would be knowing the accused and all the residents of locality by their names. Thus, no benefit can be given to the accused on this count.
39. Ld. Defence counsel also made feeble attempt to create doubt in the prosecution story by submitting that the intimation recorded in DD no. 11A is with regard to quarrel and not with regard to robbery. He submitted that same shows that IO has converted the incident of small quarrel into incident of robbery at the point of knife, in connivance with complainant of this case. However, the said argument does not hold any ground. PW10 Dalip Kumar is the PCR caller. It was the duty of accused to put relevant State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 23 of 24 FIR No. 258/14; U/s 392/394/397/34 IPC & 25/27 Arms Act; P.S. Jahangir Puri DOD: 22.12.2016 question during his cross examination, in order to bring on record as to what kind of information was given by him to Control Room and whether he had requisite knowledge about the difference between quarrel and robbery. It cannot be overlooked that PW2 Suresh Kumar and PW10 Dalip Kumar belong to poor strata of society and they cannot be expected to give minute detail with regard to incident through PCR call at 100 number.
40. In the light of aforesaid discussion, Court is of the view that the prosecution has been successful in establishing the guilt of accused in respect of offence punishable U/s 397 read with Section 394 IPC. Accordingly, accused namely Sheikh Firoz @ Dhingra stands convicted for the said offence. However, he stands acquitted in respect of offence punishable U/s 25 Arms Act.
Announced in open Court today
On 22.12.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Sheikh Feroz @ Dhingra ("Convicted") Page 24 of 24