Delhi District Court
State vs Rohtash & Ors. on 16 January, 2013
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Rohtash & Ors.
FIR No. 291/08
PS: Saraswati Vihar
JUDGMENT
A) The date of commission : 01/06/2008
of offence.
B) Name of the complainant : Raj Saifi S/o Sh. Rafik Ahmad
C) Name of accused : 1. Rohtash S/o. Sh. Ram Charan
2. Dharambir S/o. Sh. Hawa Singh
3. Hem Singh S/o. Sh. Budh Singh
D) Offence complained of : U/s. 392/411/34 IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Convicted U/s. 392/34 IPC
G) The date of such order : 16/01/2013
Date of Institution : 26/07/2008
Judgment reserved on : Not reserved
Judgment announced on : 16/01/2013
State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 1/28
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 01/06/08 at about 4:10 am at Ring Road, near Graveyard, Britania Chowk, Delhi all the accused persons in furtherance of their common intention robbed the complainant Raj Saifi and forcefully taken one Nokia Mobile phone, one wallet containing Rs. 1100/-, one ATM Card belonging to the complainant Raj Saifi and all the accused persons were found in possession of above said property and thereby committed an offence punishable under Section 392/411/34 IPC.
2. After completion of investigation challan was filed by the police U/s 392/411/34 IPC of which cognizance was taken by my Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
4. Vide order dated 29/08/2008 charge was framed against the accused persons for the offence under Section U/s 392/411/34 IPC by the Ld. Predecessor of this Court to which the accused persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 2/285. Prosecution has examined 5 witnesses to prove the guilt of accused persons.
A brief scrutiny of the examined witnesses is as below.
PW-1 HC Narender deposed that on 01/06/08 he along with SI Daya Chand Sharma deposited a two wheeler scooter bearing No. DL 4ST 6706 make Piaggeo and two sealed pulanda sealed with the seal DCS one containing mobile phone make Nokia and another containing black colour purse with cash Rs.1100/- one ATM card of Barclay and also deposited the articles of personal search vide entry No.4107 in register No.19. He proved the photocopy of the same as Ex. PW-1/A. He deposed that later on the above said scooter was released on superdari to one Dharambir and Nokia Mobile Phone and purse containing other articles was released on superdari to complainant Raj Saifi. He further deposed that case property was remained intact and untempered while it remained in his possession.
This witness was cross examined by Sh. A.K. Chadha Ld. Counsel for both the accused wherein he admit the suggestion that it is correct that there is no date on both the entries at the time of releasing of scooter and other articles. He further deposed that the pulandas were deposited to him in sealed condition. He deposed that the contents of the pulandas are mentioned in the register No.19 from the seizure memo.
PW-2 Raj Saifi deposed that on 01/06/08 he was coming from his Maruti Car bearing No. DL 2CAC 4777 from New Delhi Railway Station to his home via Punjabi Bagh and at about 4:10am when he reached near Shamshan Ghaat Britania Chowk his car broke down and he opened the bonnet of the car and checking the same. He further deposed that meanwhile State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 3/28 a young boy namely Dharamvir whose name later on disclosed came to him from a scooter bearing No .DL 4ST 6706 and asked about his car. He deposed that he told him that his car has been broke down upon which he told him to do the car at the side of the road. He deposed that upon which he asked him to help to push the car. He told him that he could not able to do alone and he further told him that he was going to call 2-3 other boys for helping. He deposed that he went towards street left side from the Shamshan Ghaat on his scooter and after 2-3 minutes he came along with two other young boys on his scooter. He further deposed that suddenly one of them namely Rohtash whose name later on disclosed caught hold him from behind and third boy whose name was later on disclosed as Hem Singh picked up a piece of brick and threatened to kill him and Dharamvir asked him to give them his money and Nokia Mobile Model No.6233 whose number was at that time was 9873322219. He tried to rescue from clutches of them but the accused Dharamvir removed his purse containing Rs.1100/- (two currency notes of Rs.500/- and one currency note of Rs.100/- and one coin of Rs.5/-), ATM Card, DL, Copy of Pan Card and accused Hem Singh picked his above said Nokia Mobile Phone from the Dash Board of his above said car. He deposed that he raised alarm meanwhile two police officials namely SI Daya Chand and Ct. Rakesh reached there. He deposed that on seeing them all the three accused persons started running from the spot. He deposed that he along with both the police officials chased the accused persons and over powered them. He deposed that IO SI Daya Chand took the search of accused Dharamvir and recovered his above said purse containing containing Rs.1100/-, ATM Card of Barclays Bank, DL, Copy of Pan Card and his mobile was recovered from the possession of accused Hem Singh. He deposed that IO took the recovered purse containing containing Rs.1100/-, State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 4/28 ATM Car, DL, Copy of Pan Card and his mobile in possession vide seizure memo Ex. PW-2/A and Ex. PW-2/B after sealing the same. He further deposed that IO had mentioned the IMEI NO. of his above said mobile in the seizure memo. He deposed that IO also seized the aforesaid scooter of the accused vide seizure memo Ex. PW-2/C. He proved his statement as Ex. PW-2/D. He deposed that IO prepared site plan Mark-X at his instance. He proved the arrest of accused Rohtash as Ex. PW-2/E and arrest memo of accused Dharamvir and Hem Singh as Ex. PW-2/F and G. He deposed that IO took their personal search vide memo Ex. PW-2/H, I and J. He proved the disclosure statement of accused Rohtash, Dharamvir and Hem Singh as Ex. PW-2/K, L and M. He deposed that IO recorded his supplementary statement. He further deposed that after two days of the incident he handed over the invoice / bill of his above said mobile which was seized by the IO vide seizure memo Ex.PW-2/N. He proved the bill as Ex.PW-2/O. He deposed that after 5-6 days he got released his above said mobile and purse on superdari.
He correctly identified the photographs of case property i.e. Nokia Mobile 6233 purse containing Rs.1100/-, ATM Card of Barclays Bank, DL, Copy of Pan Card and one CD. He proved the photographs along with one CD collectively Ex. P-1 and the Photocopy of currency notes of Rs.1100/- as mark-PA. And this witness has produced the black colour purse, pan card and Mobile Phone make Nokia 6233 having IMEI No.356283018887523 during his examined and and states that same were robbed by the accused persons and proved the same collectively Ex. P-2.
This witness was cross examined by Sh. A.K. Chadha Ld. Counsel for all the three accused persons wherein he deposed that he had gone to New Delhi Railway Station to see off his relative for Mumbai who had to leave State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 5/28 either by Punjab Mail or Golden Temple Exp. and after that he was coming back to his home. He deposed that perhaps these trains depart at 5:00am. He deposed that he left new Delhi Railway station for his home at about 3:30am. He did not stop anywhere from New Delhi Railway Station till he reached the spot. He again said at one place in between the spot and New Delhi Railway Station he stopped for about 10-15 minutes. He deposed that he was on the ring road when his car stopped near Shamshan Ghat near Britania Chowk. He further deposed that he do not know if the vehicles keep on plying day and night on the ring road. He did not note whether the vehicles were going and coming at the time when his car had broken down on the spot. He deposed that he did not see any person going and coming when his car had broken down except the accused persons. He deposed that one accused came to the spot just after 1 or 2 minutes of his car having broken down. He deposed that the person who came first at the spot was wearing blue colour jeans and light colour shirt. He deposed that neither IO had asked regarding the colour or description of the cloths of the accused who first came at the spot nor he had told the same. The person who had come first stayed for about 2-3 minutes. He cannot tell the colour of the scooter as he do not remember now. He do not remember whether any picture was made at front side of the scooter. He deposed that he did not notice any picture on the front side of the scooter. He deposed that he did not notice the colour of the scooter on that day at that time. He did not notice on that day at that time any cartoon or picture made on the number plate of the scooter at the reverse or at the front. He deposed that he was standing on the main ring road and it was 4:10am. He deposed that the source of light was street light. He deposed that the first street light pole was at a distance of about three meters from the spot. He deposed that he cannot tell whether State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 6/28 it was tube light or halogen light but it was the working street light as usually used on the roads. He deposed that the person who came to him first inquired from him about the breaking down of his vehicle. At that time he had already opened the bonnet of the car but the doors of the car were closed at that time. He deposed that he had tried to find out fault of his car before that person reached at the spot. He deposed that he did not inquire from him, if he was a car mechanic. To a specific question put by Ld. Defence Counsel regarding the seating arrangement on the scooter the witness deposed that the boy with the shortest height (Hem Singh) was sitting in the middle, Dharamvir was riding the scooter and Rohtash was sitting in the last. He deposed that accused Hem Singh was wearing pant Shirt. He further deposed that he do not remember the colour of pant and shirt of accused Hem Singh. He deposed that accused Rohtash was wearing pant and T- Shirt but he do not remember the colour of the same. He deposed that all the three accused were not wearing the helmet at that time. He deposed that accused Dharamvir stationed his scooter on the other side of driver side of his car. The police reached at the spot during the commission of offence of robbery. He deposed that the police persons had come on bike. He further deposed that he do not know whether it was official bike or a private one. He deposed that he cannot tell the registration number of that bike. He deposed that both the police officials were in uniform. He deposed that name of the police officials are SI Daya Chand who was riding the bike and the name of pillion rider was perhaps Ct. Rakesh Kumar. He deposed that the person who was shortest in height (Hem Singh) was apprehended by him. He deposed that Ct. Rakesh Kumar apprehended accused Dharamvir and SI Daya Chand apprehended accused Rohtash. He further deposed that all the accused persons were apprehended at a distance of about 15-20 meters State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 7/28 from the spot. He deposed that all the accused persons were apprehended almost at the same time. He deposed that the police gave beatings to the accused persons at the place where they were apprehended. He deposed that the police gave beatings to the accused persons for 3-4 minutes. He deposed that at all this time, his car with open bonnet remained at the spot. He deposed that the police using their mobile called for more police force upon which two police officials came at the spot, PCR Van also came there. He deposed that the two police officials who came on the call, had come on motor bike. These two police officials were also in uniform. They may be having their name plates. He deposed that he cannot tell their names. He deposed that he cannot tell the make or name of the PCR van. He deposed that perhaps three police officials were in the PCR Van. He further deposed that except the driver the remaining two police officials got down from the van. He deposed that he do not remember what the police officials from PCR van did at the spot. He deposed that the two police officials who came at the spot after receipt of call, took the possession of the accused which he was holding. He further deposed that the accused persons were searched in his presence. He deposed that first of all accused Dharamvir was searched by police official but he he do not remember by whom he was searched. He deposed that a mobile phone was recovered from accused Dharamvir. He deposed that after that accused Hem Singh was searched but he do not remember by whom he was searched. He deposed that a purse was recovered from accused Hem Singh. After that accused Rohtash was searched but he do not remember by whom he was searched. He deposed that nothing was recovered from the accused Rohtash. He deposed that he do not remember if anything else in personal belongings was recovered from the accused persons. He deposed that he cannot tell the time at when the State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 8/28 personal search of the accused persons had been conducted. He deposed that his statement was recorded by the police officials at about 5:00am while sitting on the motorcycle at the spot. He had signed his statement. He deposed that after recording his statement his recovered articles were taken in possession and sealed by the police officials. The articles were sealed at the PS. He deposed that the articles were not sealed in his presence. He further deposed that the said the recovered articles were kept in a plastic polythene and wrapped in a cloth and was sealed in his presence. He deposed that he cannot tell the name of the seal impression. He deposed that he does not remember the room of PS where the sealing took place. He deposed that he had signed the recovery memos. He had also signed on the statements of the accused persons recorded by the police in his presence. He did not come back to the spot from the PS. He left the spot finally at about 5:15am for PS and did not come back to the spot again. He deposed that all the police officials had left the spot along with him. He again said few might have remained behind. He deposed that he cannot tell which of the police officials went to the PS and which remained at the spot. He further deposed that one police official had accompanied him to the PS on his motorcycle but he cannot tell his name or rank but he was in police uniform having his name plate. He further deposed that the accused persons were sitting in the PCR van when he left the spot who reached the PS after about 5 minutes of his reaching the PS. He deposed that a map (site plan) was prepared in his presence at his instance but he does not remember, if he had signed the same or not. He deposed that he left the PS finally at about 6 - 6:15am. He further deposed that same day evening at about 5:00pm he again visited the PS for collecting his articles but he do not remember who met him there. He deposed that he was told that he will get his articles State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 9/28 through the court orders only. He deposed that he does not remember if all the paper work was completed by the police officials while sitting on the motorcycle. He deposed that he cannot tell as to who took the photographs and when the same were taken of the Nokia Mobile Phone (6233). He deposed that the photographs of his articles i.e. his Nokia Mobile, purse and other articles were taken at the time of the releasing of the same on superdari. He deposed that the police officials had taken signatures and thumb impressions on some papers, the number of which he cannot tell, at the spot as well as at the PS from the accused persons. He deposed that he does not know whether those papers were blank or written. He again said these papers were written he had gone through the same before he signed the same. He denied the suggestion that the recovered amount of Rs.1100/- belonged to accused Dharamvir and not to him. He further denied the suggestion that no such incident took place or that he is deposing falsely. He further denied the suggestion that accused persons were not present at the spot and they have been falsely implicated in the present case. He further denied the suggestion that accused Dharamvir along with his scooter was picked up from his residence by the police officials and falsely implicated in the present case. He denied the suggestion that accused persons have been falsely implicated in this case because he have an altercation with them before the present date i.e. 01/06/08 of this case. He further denied the suggestion that nothing was recovered from the accused persons or nothing was robbed from him.
PW-3 SI Ranveer Singh proved copy of FIR as Ex. PW-3/A and endorsement on rukka as Ex. PW-3/B. He also proved the DD No.5A as Ex. PW-3/C. State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 10/28 This witness was cross examined by Sh. A.K. Chadha Ld. Counsel for all the three accused persons wherein he deposed that SHO PP Singh was present in the PS when Ct. Rakesh brought the rukka. He deposed that he had informed the SHO about the rukka and read over the same to him before recording the FIR, which took about two minutes. He deposed that SHO was in rest room at that time and he was awake. He denied the suggestion that the FIR is anti dated.
PW-4 Ct. Rakesh deposed that on 01/06/08 he along with SI Daya Chand was on patrolling duty in the area on the Ring Road. He deposed that at about 4:30am when they were coming from the side of Punjabi Bagh on the Ring Road and reached at M-Block, Near Shamshan Ghaat they heard the noise of a person who was crying "Pakro Pakro". They stopped their motorcycle and with the help of complainant Raj Shaifi they apprehended three persons who on inquiry disclosed their names as Hem Singh, Rohtash and Dharamvir. He deposed that on search of accused Hem Singh one Nokia Mobile was recovered from his possession and from the possession of the accused Dharamvir one purse containing Rs.1100/-, one ATM Card and some documents which were identified by the complainant Raj Shaifi. He deposed that IO recorded the statement of complainant Raj Shaifi prepared Tehrir and sent him along with the same for registration of the case. After registration of case he came back at the spot and handed over copy of FIR and original rukka to the IO. He deposed that IO sealed the recovered mobile with the seal of DCS and took in possession vide seizure memo Ex. PW-2/B. He deposed that IO also seized the recovered purse containing above said articles with the seal of DCS and took in possession vide seizure memo Ex. PW-2/A. He deposed that IO also took in possession a scooter bearing No. State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 11/28 DL 4ST-6706. He deposed that IO arrested the accused Dharamvir, Rohtash and Hem Singh vide arrest memo Ex. PW-2/F, E, G respectively and took their personal search vide memo Ex. PW-2/H,I and J. He deposed that IO recorded the disclosure statement of accused Rohtash, Dharamvir and Hem Singh as Ex. PW-2/K,L and M. He correctly identified the five photographs of Nokia Mobile 6233 purse containing Rs.1100/-, ATM Card of Barclays Bank, DL, Copy of Pan Card and one CD already placed on record and shown to him. He proved the photographs along with one CD collectively Ex. P-1. Photocopy of currency notes of Rs.1100/- as mark-PA.
This witness was cross examined by all the three accused persons wherein he deposed that on 01/06/08 his duty hours was from 12 Mid Night to 6am. He joined his duty at 11:30pm at the PS and he reported at DO Room PS Saraswati Vihar but now he do not remember the DD entry of the same. He left the PS for patrolling at 12:00am on private motorcycle of SI Daya Chand whose registration No. he do not remember. He along with SI Daya Chand left for patrolling and they both were in police uniform. He deposed that from the PS they reached M-Block Bus Stand at Shakurpur. There they stopped for about 10 to 15 minutes from there they went to Shakurpur village near school where they checked the chowkidar which took about 15-20 minutes. He deposed that from here they went to Ring Road towards Punjabi Bagh and taking U Turn came to Shakurpur M-Block i.e. the site of offence of the present case. There were public persons passing through the spot apart from the complainant and the accused persons. He deposed that some vehicles were also passing through at that time. He deposed that SI Daya Chand searched the accused persons. He deposed that IO SI Daya Chand did not offer his own search to the accused persons State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 12/28 before searching the accused persons. He further deposed that nothing was recovered from the accused persons apart from what he have deposed in his examination in chief. He deposed that it took about 15-20 minutes in completing search etc. He deposed that he do not recall the exact time when he took the rukka to PS and came back to spot. He deposed that his statement was recorded by the IO at the spot which was duly signed by him but he do not recall the time when the same was recorded and signed by him. He denied the suggestion that he did not join the investigation and have deposed falsely at the instruction of IO being Police official.
PW-5 SI Daya Chand deposed that on 01/06/08 he was posted at PS Saraswati Vihar as SI. Further he deposed that on that day he along with Ct. Rakesh was on patrolling duty in the area on the Ring Road. At about 4:30am when they were coming from the side of Punjabi Bagh on the Ring Road and reached at M-Block, Near Shamshan Ghaat they heard the noise of a person who was crying "Pakro - Pakro". They stopped their motorcycle and saw that three persons were running away and the person whose name was later on disclosed as Raj Shaifi was crying Pakro - Pakro. He deposed that he along with Ct. Rakesh and with the help of complainant Raj Shaifi apprehended all the three persons who on inquiry disclosed their names as Hem Singh, Rohtash and Dharamvir who are present in the court today (correctly identified). He further deposed that on search of accused Hem Singh one Nokia Mobile was recovered from his possession and from the possession of the accused Dharamvir one purse containing Rs.1100/- (two currency notes in denomination of Rs.500/- and one currency note of Rs.
100), one ATM Card of Barclay Company, DL and photo and some documents which were identified by the complainant Raj Shaifi. He recorded State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 13/28 the statement of complainant Raj Shaifi regarding the robbery committed by all the three accused persons. He prepared Tehrir Ex. PW-5/A and sent Ct. Rakesh along with the same for registration of the case. He called other police staff from PS. He deposed that after registration of case he came back at the spot and handed over copy of FIR and original rukka to him. He sealed the recovered mobile with the seal of DCS and took in possession vide seizure memo Ex. PW-2/B. He deposed that IO also seized the recovered purse containing above said articles with the seal of DCS and took in possession vide seizure memo Ex. PW-2/A. He also took in possession a scooter bearing No.DL 4ST-6706 vide memo Ex. PW-2/C. He prepared site plan Ex. PW-5/B and that of complainant Raj Shaifi at point B. He deposed that he arrested the accused Dharamvir, Rohtash and Hem Singh vide arrest memo Ex. PW-2/F, E, G respectively and took their personal search vide memo Ex. PW-2/H,I and J. He deposed that he recorded the disclosure statement of accused Rohtash, Dharamvir and Hem Singh which is Ex.PW-2/K,L and M. He deposed that thereafter they came back to PS case property was deposited into Malkhana and accused persons were lodged in Lockup. He further deposed that on 03/06/08 complainant Raj Shaifi produced the bill invoice of robbed mobile Nokia which is Ex. PW-2/O and taken in possession vide seizure memo Ex. PW-2/N. He also correctly identified all the photographs along with one CD already collectively Ex. P-1. Photocopy of currency notes of Rs.1100/- (two currency notes in denomination of Rs.500/- and one currency note of Rs.100) is mark-PA.
This witness was cross examined by Sh. A.K. Chadha Ld. Counsel for all the accused person wherein he deposed that on 01/06/08 he was on duty from 8:00pm of the previous day to 8:00am on 01/06/08. He deposed that he left the PS after 2:00am for patrolling along with Ct. Rakesh on Private State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 14/28 Motorcycle which belonged to him but he is not able to tell the registration No. of the same. He deposed that before reaching the spot they had patrolled from ring road to Subhash Place, Punjabi Bagh and Britania Chowk. He further deposed that when they heard the sound of Pakro-Pakro, the three boys who were running were at a distance of about 50-100sqyds from them. He further deposed that they apprehended the accused persons before talking to the complainant Mr. Raj Shaifi. He deposed that he cannot tell as to which of the accused persons was apprehended by which of them. He deposed that he had made inquiries from the accused persons. He further deposed that he cannot tell as to the description or the colour of clothes worn by the accused persons at that time. He deposed that there was sufficient day light at that time as it was summer time. Further he deposed that no one from the police team or the complainant Raj Shaifi searched the accused persons. He further deposed that he had prepared the case papers at the spot, while sitting on the patri by the side of samshan ghaat. He deposed that he had recorded the statement of complainant at around 5:00am. He deposed that the complainant left the spot at 10:30am and till that time he remained at the spot along with the police team including him. He deposed that other police officials from the PS reached the spot at around 5:00am. He further deposed that the police officials brought back the copy of FIR and the original rukka from the PS at about 7:00am and handed over the same to him. He denied the suggestion that he never joined the investigation of that nothing was recovered from the accused persons and they have been falsely implicated in connivance with the complainant.
6. Vide order dated 10.05.2012 P.E. was closed and Statement of the State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 15/28 accused persons U/s. 313 Cr.P.C was recorded on 20.07.2012 in which the accused persons pleaded innocence but preferred not to lead D.E. Thereafter matter was fixed for final arguments.
7. Ld. Defence Counsel has argued that the accused persons have been falsely implicated by the complainant inconnivance with the police officials which is reflected from the severe infirmities in the statement of the PWs examined. He has submitted that as per testimony of the MHC (M) and on the register maintained by him there is no date on both the entries at the time of releasing of scooters and other articles. He submits that the witness could not deposed about the colour of the scooter on which accused Dharamvir who as per the testimony of the complainant came to him. He has further argued that the statement of the complainant that accused Hem Singh picked his nokia mobile phone from dash board of his car cannot be relied upon since in his cross examination the complainant has stated that all the doors of the cars were closed. The complainant could not even tell the colour of the clothes worn by either of the accused persons or whether the police officials who had come there were on the official or the private bike. He further argued that the factum of the police officials giving beatings to the accused persons from their place of apprehension does not find mention anywhere but only in the cross examination of the complainant. He further submits that in his cross examination the complainant has mixed up the factum of recovery of articles from the accused Hem Singh and Dharamvir and has deposed vice versa to what he has deposed in his chief examination. He has further argued that the articles were sealed in the absence of the complainant, in the PS and not on the spot. Further that there is nothing in State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 16/28 the testimony of the complainant to suggest as to what happened to his car when he has deposed that he did not go back to the spot from the PS. He further argued that on one hand the complainant states that he did not know if any vehicles were plying that day on the ring road, on the other hand PW-4 Ct. Rakesh mentions about the presence of public persons and vehicles, passing thereby. He has further argued that PW-5 IO SI Daya Chand could not even depose about the registration number of the motorcycle on which he went to the spot. Lastly, he argued that as per the IO the writing work was done by sitting on the patri on the spot whereas PW-2 deposed that the writing work was done by sitting on the motorcycle.
8. Per contra Ld. APP has contended that the testimony of all the PWs examined are coherent and trustworthy and that the prosecution has been able to prove their case beyond any doubt and that the arguments advanced by Ld. Defence Counsel pointing out minor discrepancies in the testimonies of PWs should not be given undue weightage.
9. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused persons and have gone through the evidence and the material available on record.
10. After going through the material on record and having heard the arguments advanced, I am of the I am of the opinion that prosecution has State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 17/28 successfully brought home the guilt of the accused.
11. The ingredients of the offence alleged against the accused persons have been meted out. All the accused persons were identified in the court by the PWs. The complainant has identified all the three accused persons and has detailed about the role played by them in the commission of the offence. He has deposed that the accused Rohtash caught hold of him from behind, accused Hem Singh after picking up a piece of brick threatened to kill him and accused Dharamvir asked for his money and his mobile phone and removed his purse.
12. The evidence of the complainant appears to be natural and trustworthy and the chain of events is consistent and complete. The complainant deposed about the incident to have occurred at about 04:10 am and PW-4 and PW-5 who are the police officials also reached at the spot at about 04:30 am while on patrolling. The presence of the police officials on the spot cannot be disbelieved, their departure entry, in the area for patrolling being proved by PW-3 vide DD No. 5 A which is Ex. PW-3/C.
13. The case property i.e. the purse and the mobile phone of the complainant were recovered from the person of accused Dharamvir and Hem Singh respectively which is witnessed by the complainant. The testimony of the complainant is in consonance with the statement Ex. PW-2/B, on the State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 18/28 basis of which the FIR was registered. Ex. PW-1/A which is extract of the store room register shows that the accused Dharamvir took the scooter bearing No. DL 4 ST 6706 on superdari after getting orders from the court reflects that the scooter was involved in the incident. As per the testimony of the complainant the accused Dharamvir was the first one to reach him on the above said scooter and later on also brought the other accused persons on the same scooter. The fact that the accused Dharamvir took the said scooter on superdari, in absence of any evidence or reason as to why and how the said scooter was seized in the present case corroborates the version of the complainant. The seizure memo of the purse, mobile phone and that of the scooter were prepared at the same time and bears signature of the complainant. It means that the scooter was also seized at the same time when the other articles which were robbed from the complainant were seized. The accused Dharamvir has admitted in his application for superdari of the said scooter that he is the registered owner of the scooter and nowhere he has made any complaint if the said scooter was used in this crime without his knowledge.
14. Though Ld. Defence Counsel has argued that accused persons are falsely implicated in the instant case by the police officials but he has come up with no reasons as to the motive of the same. Why will the complainant depose against them, there being no relation between him and the accused persons. In their statement U/s. 313 Cr.P.C the accused persons gave evasive answers and did not clarify as to how the case property was recovered from their possession. Whether the same was planted or otherwise or any animosity with the complaint or the police officials so that State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 19/28 they have any reason to falsely implicate them. No explanation was given regarding recovery of the articles of the complainant from the possession of the accused persons. Nothing on the point as to why the accused persons have been involved in the instant case has been argued by Ld. Defence Counsel. In fact accused Rohtash has admitted his presence on the spot when he deposed that he was picked up the police officials from a nearby park. The accused persons did not examine any witnesses who could corroborate their claim that they were in fact not present at the spot and were lifted from their house by the police officials, despite opportunity given.
15. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 20/28 reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
16. The contentions of the the Ld. Defence counsel that no public person as stated by the complainant who were on the spot at the time of alleged incident were made witnesses by the IO at the spot which casts serious doubts upon the prosecution story does not hold water in my opinion. There is no dearth about the number of witnesses that could have been cited by the prosecution.
17. It has been observed by Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) that:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 21/28 prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
18. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) FIR No. 130/99 16/22 CRIMES 63 (SC). The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
19. The Ld. Defence Counsel has also contended that the presence of the police officials at the spot so promptly also casts doubt upon their testimony and give strength to their defence that the accused persons have been falsely implicated by the IO. I do not find anything fishy about the presence of police officials on the spot. Their presence of police officials has been proved by PW-3 vide DD No. 5 A which is Ex. PW-3/C.
20. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311.
......... The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 22/28 their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down.......
21. The arguments of Ld. Defence Counsel that the articles were not sealed in the presence of the complainant and that too at the PS and not at the spot as has come in the testimony of the complainant and that gives fatal blow to the story of the prosecution is untenable. These are procedural aspects and they cannot be taken into account and be given such importance as to shatter or disbelieve the version of the complainant. In fact the testimony of the complainant proves that he is not a tutored witness and his testimony is natural. He has deposed what has happened before him. Whether he remembered the colour of the clothes worn by the accused persons, the bike on which the police officials came was private or official, the accused persons were beaten by the police officials at the spot or not are trivial questions and not answering these questions does not throw the testimony of the complainant.
22. In his cross examination the complainant has faulted in deposing about the articles recovered from the accused Dharamvir and Hem Singh. But keeping in view that the witness often tends to mixup facts during piercing cross examination which in this case was conducted at length, the State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 23/28 testimony of this witness cannot be looked at suspicion. Moreso, when in his examination in chief the witness has deposed about the accused Hem Singh picking his mobile phone from the dashboard of his car and has also deposed about him being short stature in the cross examination. It proves that the witness was having knowledge that the person who picked his mobile phone was of short height.
23. As far as contention of Ld. Defence Counsel that there is contradiction in the testimony of the complainant is concerned, I do not think that they are so material as to discard or look upon his testimony with suspicion. A witness cannot be expected to narrate the incident like a parrot. Some improvements/contradictions may creep in due to fading of memory with lapse of time. These minor contradictions should not be given undue importance unless they are so glaring so as to destroy the confidence in the witness. In the instant case I do not find any infirmity in the testimony of the complainant that his testimony should be looked with suspicion.
24. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to built up a continuous link. Further the complainant testified in detail as State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 24/28 to what role was played by which accused and robbed amount have been recovered from the possession of one of the accused persons. There being no history of any previous animosity between the accused persons and the victim, there is no reason for the victim to have falsely implicated the accused.
25. From the above discussions, it has been proved that the accused Hem Singh picked up a piece of brick and threatened the complainant to kill him and along with other accused persons robbed him of his belongings. This act of the accused persons is squarely covered within the ambit of the offence of robbery as defined in section 390 IPC, punishable under Section 392 IPC which is reproduced as under.
Section 390 IPC provides as In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery. - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 25/28 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.
Section 392 provides "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
26. Now adjudicating upon whether all the accused persons had common intention to rob the complainant and that if Sec34I.P.C can be attracted to fix their liability.
In Virender Pal @ Neelu v. State (Delhi)(D.B.) 2011 CriLJ 3082Hon'ble High Court of Delhi has observed :
" Section 34 IPC does not create a substantive offence. It simply states that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it intentionally. The constructive liability under this Section would arise if following two conditions are fulfilled :- (i) there must be a common intention to commit a criminal act and (ii) there must be participation of all the persons in doing of such act in furtherance of that intention . Common intention requires a prior concert or pre-planning.State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 26/28
Common intention to commit a crime should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed.
48. It is difficult, if not impossible, to procure direct evidence of common intention . In most cases it has to be inferred from the act and conduct of the accused persons and other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination with which the injury was inflicted, the concerted conduct of the accused persons during the commission of the offence and subsequent to the commission of the offence. In other words, intention has to be gathered from the acts of the accused persons and the attendant relevant circumstances enwombing the act. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which he could be convicted."
Since all the accused persons had participated in the commission of the offence it can be safely concluded that all the accused persons were having common intention to rob the complainant.
27. In view of the above discussion, observations and evidence on record, in my opinion the prosecution has successfully proved its case that accused persons robbed the complainant and they have committed an offence punishable U/s. 392 IPC r/w. section 34 IPC. As far as offence U/s. 411 IPC State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 27/28 alleged against accused persons is concerned, since substantive offence of section 392 IPC has been proved against them, they cannot be held guilty of offence U/s. 411 IPC since it is obvious that if the accused has robbed a person, the same shall be recovered from his possession only.
28. Therefore I hold accused persons guilty of offence u/s 392/34 IPC.
29. Now let the matter be listed for arguments on sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on January 16th, 2013.
It is certified that this judgment contains 28 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 16/01/2013 State V/s Rohtash & Ors. FIR No. 291/08 PS: Saraswati Vihar Page No. 28/28