Delhi District Court
State vs . (1) Anas @ Rahul on 17 July, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 53/2011
Unique Case ID: 02404R0181282011
State Vs. (1) Anas @ Rahul
S/o Mohd. Anwar
R/o B37, JJ Colony, Sector24
Rohini, Delhi.
(Convicted)
(2) Shashi
S/o Sohan Lal
R/o J Block, Bagriwala Park,
JJ Colony, Shakurpur, Delhi.
(Convicted)
(3) Rajuddin Khan
S/o Shaib Khan
A133, JJ Colony, Sector24
Rohini, Delhi.
(Convicted)
(4) Avdhesh Tiwari
S/o Ramesh Tiwari
R/o A61/3, Beer Singh Colony,
Budh Vihar, PhaseII, Delhi.
(Convicted)
FIR No. : 82/2011
Police Station : Keshav Puram
Under Section : 392/394/397/411/34 IPC
State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 1 of 103
Date of committal to Sessions Court : 18.08.2011
Date on which orders were reserved : 29.05.2012
Date on which judgment pronounced : 10.07.2012
JUDGMENT
Brief Facts:
(1) As per the allegations, on 31.3.2011 at about 3:00 AM at Ram Pura TPoint, Lawrence Road, Delhi, the accused Anas, Shashi, Rajuddin and Avdhesh Tiwari in furtherance of their common intention committed robbery of two mobile phones of make Mircromax dual SIM having mobile Nos. 8802400529 and 9717356564, PAN Card, Voter ICard, ATM and Rs. 8,000/ belonging to Lal Babu and mobile no. 9582289012, Rs. 4,000/ belonging to Bilash, on the point of knife after stopping truck bearing No. HR69A5782 by putting their car bearing No. DL1M9185 in front of the truck which was being driven by Lal Babu while Bilash, conductor / helper, was sitting next to driver seat. It is alleged that while committing robbery, the accused have voluntarily caused hurt to Bilash and Lal Babu. It is further alleged that the accused Anas got recovered the knife allegedly used by him while committing the robbery and inflicted injuries upon Lal Babu. It is also alleged that during the investigations, on 6.4.2011 at Park situated at JJ Colony, Sector 24, Rohini, Main Road, the accused Anas @ Rahul was found State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 2 of 103 in possession of a stolen mobile i.e. Micropax Model X226 of black and green colour having IMEI No. 910564203170976 and 910564208170971 belonging to Lal Babu. Further, on 6.4.2011 at Park situated at JJ Colony, Sector 24, Rohini, Main Road, the accused Shashi was found in possession of stolen mobile make Micromax Model X118 of black and red colour having IMEI No. 910569701701495 and 910569701701503 belonging to Bilash.
Case of Prosecution in brief:
(2) The case of the prosecution in brief is that on 31.3.2011 a telephonic call was received at Police Station Keshav Puram from SI Radhey Shyam of Police Station Saraswati Vihar vide DD No. 7B from Bhagwan Mahabir Hospital regarding admission of injured Bilash and Lal Babu, which DD was marked to SI Nahar Singh.
Thereafter, SI Nahar Singh along with Ct. Satpal reached at Bhagwan Mahabir Hospital where he came to know that the injured were already shifted to Sushruta Trauma Centre, on which he along with Ct. Satpal reached Sushruta Trauma Centre and collected the MLCs of Lal Babu and Bilash and since the injured were fit for statement, hence SI Nahar Singh recorded the statement of complainant / injured Lal Babu. The complainant Lal Babu in his statement to the police had stated that he was working in JP Cement Agency at Punjabi Bagh and used to drive a Canter (Truck). According to him, State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 3 of 103 on 31.3.2011 he after unloading the cement at Vijay Nagar was going to drop the labours to Punjabi Bagh. He has further told the police that one of the labour namely Bilash was sitting next to him whereas three other labours were sleeping on the back side of the canter (truck). According to him, at about 3 AM when they were passing through Rampura T Point, one Maruti car bearing no. DL 1M9185 came from the side of Rampura phatak and stopped in front of his truck on which he was also compelled to stop his truck and four boys got down from the said Maruti car out of whom two boys came to his side window whereas two of them went towards the side window of Bilas. He has further told the police that the two boys who came towards his side forcibly opened the window asked him to give whatever he had but when he resisted one of them took out a knife and inflicted knife blows on his head, shoulder and hand while the other boy forcibly pulled him down from the truck and snatched his mobile make Micromax of black and green colour, dual SIM having numbers 8802400529 and 9717356564, his purse having original PAN Card, Voter ID Card, ATM and some cash. The complainant Lal Babu further told the police that the two boys who had gone towards Bilash inflicted injuries upon Bilash and thereafter all the four assailants ran away from the spot in their Maruti Car. (3) On the basis of the statement of the complainant Lal Babu, rukka was prepared and investigation was initiated. During State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 4 of 103 investigations, the robbed mobile was kept under electronic surveillance and it was found that the same was being operated in the area of Sector 24, Rohini, and further investigations revealed that the said mobile was used by one Manish. The said Manish was interrogated who disclosed that the stolen mobiles were given to him by one Kaneez the sister of Anas and thereafter the accused Anas was apprehended along with his associates Shashi, Rajuddin, and Avdhesh Tiwari. After completing the investigations, charge sheet was filed in the court.
CHARGE:
(4) Charge under Section 392/394 read with Section 34 Indian Penal Code was settled against the accused Anas, Shashi, Rajuddin and Avdhesh. Charge under Section 397/411 Indian Penal Code and also under Section 25 Arms Act was settled against the accused Anas. Further, charge under Section 411 Indian Penal Code was also settled against the accused Shashi. All the accused pleaded not guilty and claim trial.
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution examined as many as twenty nine witnesses.
State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 5 of 103
Public Witnesses:
(6) PW18 Saurab has deposed that his vehicle Maruti Zen of Blue Colour bearing No. DL 8CC 9135 which was in the name of a Firm Mukerian Papers Limited was parked by his father on 30/03/2011 on Road No. 43, opposite Saran General Store Rani Bagh but in the morning of 31/03/2011 at about 9:00 a.m. the said vehicle was found missing on which they immediately made a PCR call and thereafter, got a report lodged at the Police Station, Rani Bagh. He has further deposed that his father had also given his written complaint to the officials of Police Station Rani Bagh which is Ex.PW18/A. According to him on 03/04/2011, his father received a telephonic call from Police Station Vijay Vihar that a vehicle had been found abandoned containing the visiting cards of his father and on receipt of this information his father telephoned to him and asked him to go to Police Station Vijay Vihar along with the documents which were in their possession. According to the witness, the original RC and other papers were present in the vehicle and only the insurance papers were with them which he carried to Police Station Vijay Vihar where the vehicle was released to him on the basis of documents. He has further deposed that he informed the Police that the Music System installed in the vehicle and all the documents were missing and thereafter, he brought the vehicle back. He has also deposed that on 07/04/2011 a Police officer came from Police Station State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 6 of 103 Keshav Puram and informed them that during this period their vehicle had been stolen some robbery incident had been taken place and the police also insisted upon taking back the vehicle which they handed over to them. He has further deposed that on 27.04.2011 the vehicle was released to them on execution of superdaginama by him. (7) In his crossexamination by Ld. Defence Counsel, the witness has admitted that on 31.03.2011 they were not informed regarding registration of any FIR and has voluntarily added that they were told that the FIR was registered later. He has further deposed that he was not aware of the persons who had taken away their vehicle and has voluntarily stated that the place where they parked their vehicle was far from their house. He has also stated that he had no connection with the Mukerian Papers Limited and has voluntarily added that he stated that the said vehicle was gifted to some persons by this company who in turn had gifted this to his father and therefore, there were no papers showing the direct ownership of this vehicle either in his or in the name of his father and there was no documentation in this regard. Witness has denied the suggestion that there was no incident of theft and the entire episode has been fabricated and manipulated only to work out the present case or that he had deposed falsely at the instance of the Investigating Officer. (8) PW19 Lal Babu has deposed that he is a driver by profession and used to drive the Canter of JP cement agency, Punjabi State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 7 of 103 Bagh and on 31/03/2011 he was coming after unloading the cement at Vijay Nagar Delhi and was going to leave the labour at Punjabi Bagh. According to him, one labour namely Bilash was sitting on the conductor seat near his seat and three labour were sleeping on the back of the truck. He has deposed that when he was passing at Rampura T Point at about 3:00 a.m., a car bearing no. DL1M9185 which was coming from Rampura Phatak side, came in front of his truck and stopped his truck when four boys got down from the said car. According to the witness, two of those boys came towards his window side and two boys came towards the window of Bilash. The witness has deposed that the boys who came towards his window, started demanding money and when he refused to give them money, they started beating him and giving him knife blows which hit on his both hands, forehead and on his neck on the back side. According to the witness, those boys opened the window of his side and one of them pulled him from the tuck and started searching his pockets and removed his mobile make MICROMAX of black and green color having two SIM cars bearing No. 8802400529 and another connection of Airtel whose number he does not remember now. He has further deposed that he is illiterate but he can read and write his name. According to the witness, those boys had also removed his DL, purse containing original PAN card, ATM, Voter ICard and cash amount Rs. 8,000/. He has further deposed that the two persons State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 8 of 103 who had come towards Bilash had also given him injuries on his head and after removing the aforesaid articles they sat in the said Maruti car and ran away. He has further deposed that he thereafter put his handkerchief over the injuries and started his truck to find some some hospital towards Britannia Chowk and found a private hospital but it was found closed. According to him he could not reach to the gate of the hospital and he fell down when some public person saw his condition and made a call at 100 number after which PCR came and took him and Bilash to Mahavir Hospital where the owner of the truck had also come and thereafter he and Bilash were referred to Trauma Center by the said hospital. The witness has deposed that one police officials namely Nahar Singh also accompanied them to the Hospital and from the Trauma Center they were referred to LNJP Hospital where they remained admitted for about 45 days. He has further deposed that the police official recorded his statement which is Ex.PW19/A and when he was discharged from the Hospital after about 10 days, he came to know that the accused persons have been arrested by the police. He has further deposed that he had seen the Maruti car at the gate of the Police Station bearing No. DL8CC9135 and told the police that it was the same vehicle in which the accused persons had come at the spot and committed the incident with him and Bilash.
State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 9 of 103 (9) According to the witness Lal Babu he and Bilash had gone to Tihar Jail and he participated in the TIP proceedings in which Bilash had identified one person and he had also identified the accused. The witness has also correctly identified the accused Anas in the Court by pointed out towards him as one of the persons who had inflicted stab wounds to him on his forehead and behind his head and submits that the other assailant was not present in the Court. The witness has correctly identified the accused Rajuddin vide his photographs Ex.PW19/PX1 and Ex.PW19/PX2 produced by the Ld. Defence Counsel. (As the accused Rajuddin was not present being hospitalized and his identity was not disputed by the Ld. Defence Counsel), as the boy who came to him and inflicted injuries upon him with the knife. The witness has also correctly identified the accused Avdhesh Tiwari and Shashi as the assailants who had gone towards Bilash who was sitting along with him in the truck on the conductor side. The witness Lal Babu has identified the Maruti car bearing No. DL8CC9135 Ex.P1 in the court. He has also identified mobile phone make MICROMAX of black and green color, double SIM as Ex. P2, one reddish brown carrot colored shirt having blood stains as Ex.P3. He has witness also identified a bluish grey colored shirt having blood stains and states that it does not belong to him but in so State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 10 of 103 far he recollects, it belongs to Bilas.
(10) In his cross examination by Ld. Defence Counsel, the witness has deposed that he did not come to his house very frequently as used to remain in the vehicle which he used to drive and was holding an LMV licence at the time of incident. He is unable to produce any document to show that he was under the employment of JP Cement and has deposed that at the time of the incident he was having receipts / parchies of JP Cement Company in respect of delivery which were in the truck. According to him Bilash did not reside with him and has voluntarily added that he was residing separately in Punjabi Bagh. He has deposed that he did not tell the names and addresses of the labour who were present in the truck on the backside since he did not know the same. On court question the witness has also deposed that the police did not ask him anything in this regard. He has deposed that as a matter of practice, they used to drop the labours at the place from where they were picked. He admits that there were a large number of factories at the place of incident but has denied that the road where the incident took place was having a heavy vehicular traffic for 24 hours. He has further denied that the place where the truck was stopped is having factories on both side of the road and has voluntarily explained that on the opposite side of the road, there was no factory. According to him, the number of the truck was HR 69 A 5782 but he is not aware of the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 11 of 103 name of registered owner of the truck. According to him the Maruti car which stopped them came from the opposite direction and has denied that when the Maruti car stopped in front of truck, there was an altercation between him and the car driver. The witness has deposed that at the place where the truck was stopped, there are light poles but has explained that they were not working. On a Court question, the witness has explained that he could see the faces of the accused in the light of the truck and also states that he did not raise any alarm. He has denied the suggestion that he could not see the assailants who had caught hold of Bilas. According to him, he had seen the knife with which he had inflicted the injury andhas explained that it was around four finger wide and made of iron. (11) According to Lal Babu, he does not recollect the date when he purchased the mobile and has voluntarily added that it was purchased about 5 to 6 months prior to the incident and the receipt of purchase of this mobile was in his purse which was taken away by the accused. He has denied the suggestion that no mobile was stolen from him because no such mobile was in his possession or that the Maruti car was seen by him for the first time in the police station.
According to the witness, his ATM card which was stolen was of Oriental Bank of Commerce and at the time of incident he was receiving a salary about 5000/ and has explained that he had kept the cash amount of Rs.8,000/ with him because he wanted to send this State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 12 of 103 money to his home. According to the witness, he does not recollect what happened to the blood stained handkerchief which he had put on his injuries. He also does not recollect the name of the private hospital to which he had taken the truck and has voluntarily explained that the said hospital is situated a little ahead of the Britania Chowk on the left hand side. The court has observed that it appears to be some private nursing home or clinic. The witness has deposed that he had fallen down at the same clinic / hospital after walking of few steps and regained consciousness after five minutes at the same place and was taken to the Trauma Center in a private vehicle belonging to some senior personnel of the company whose vehicle / Truck he used to drive. According to him no public persons had collect at the spot where he had fallen down. He has denied that the accused Anas, Sashi and Avdhesh Tiwari had been falsely implicated and identified by him or that he had initially identified the accused Avdhesh Tiwari as the main assailant and later on on the pointing of police official on getting opportunity and he identified accused Anas and Razuddin at the instance of the investigating officer. He has further denied that the police had taken the photographs of the accused in the mobile phone and shown to him and he identified them at their instance. He has further denied that he did not identify any accused in the Judicial TIP and all identification has been made at the instance of the police and that the accused Anas State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 13 of 103 and Sashi have been falsely implicated by the Police since they were having previous involvements in the same area.
(12) PW20 Vijay Hans has deposed that he was in possession of Maruti Zen of Blue Colour bearing No. DL 8C C 9135 which was in the name of a firm Mukerian Papers Limited and was given to him by his friend Raj Kumar Jain for use. He has deposed that on 30.03.2011 the said vehicle was parked opposite Saran General Store, Rani Bagh, and in the morning i.e. on 31.03.2011 at about 9:00 a.m. the said vehicle was found missing on which he immediately give a complaint to Police Station, Rani Bagh which is Ex.PW18/A. He has also stated that on 03.04.2011 he received a call from Police Station Vijay Vihar that a vehicle had been found abandoned which was containing his visiting cards on the basis of which the call was made. He has stated that since he was not available therefore, he asked his son Saurab to go to Police Station Vijay Vihar along with whatever documents were available which were in their possession and thereafter, his son got the vehicle released from the said Police Station on the same day. According to the witness, on 07.04.2011 they received information from Police Station Keshav Puram that some offenders had been apprehended who had disclosed that their vehicle was used in the commission of some offence and therefore, the vehicle was required at the Police Station. Witness has further deposed that on receipt of this information, the vehicle was handed State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 14 of 103 back to Police Station Keshav Puram which was later on released to him on 27/04/2011 on execution of superdaginama. (13) In his crossexamination on behalf of accused persons, this witness has admitted that on 31/03/2011 they were not informed regarding registration of any FIR and has voluntarily stated that they were told that the FIR was registered later. He has stated that he was not aware of the persons who had taken away their vehicle but has voluntarily explained that the place where they park their vehicle was far from their house. He has further stated that he had no connection with the Mukerian Papers Limited and has voluntarily added that the said vehicle was gifted by this company to his friend Raj Kumar Jain who was also in paper business who in turn permitted him to use the same. Witness has admitted that there are no papers showing the direct ownership of this vehicle in his name and there was no documentation in this regard. He has denied the suggestion that there was no incident of theft and the entire episode has been fabricated and manipulated only to work out the present case. Witness has also produced in the court the vehicle i.e. Maruti Zen of blue colour, 1997 model, bearing no. DL8CC9135, having Chasis no. 278421 and Engine No.273295 which car is Ex.P1.
(14) PW23 Bilash has stated that he is a labour and on 31/03/2011 he was working as a labour at Shri Ultra Cement and on that day he along with Lal Babu, driver were coming back on the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 15 of 103 tempo after unloading the cement near Model Town, Delhi, and were going to cement site near Shakur Basti. He has deposed that he was sitting in the vehicle at the conductor seat along with Lal Babu on the driver seat and 23 labours were sitting on the back of the tempo who were sleeping at that time. He has deposed that when they were passing through Keshav Puram red light towards Lawrence Road at about 2:00 3:00 a.m. (midnight), one maruti van bearing No. 9135 came in front of their truck and stopped the same. According to the witness, four persons got down from the said car, one of whom was carrying a Pana (instrument for opening the tyre of the car) who came to him and hit the Pana on his head on which he received injuries and fell down on the ground since he had been pulled down by the said person. He has further deposed that two persons had come to his side and two of them had gone to the driver side where Lal Babu was sitting and the other boy who was with the person who had given him the panna blow removed his mobile make MICROMAX, Rs. 4,000/ which he was carrying and thereafter ran away from the spot. The witness has deposed that the driver Lal Babu drove the vehicle and took him to the Hospital at Sainik Vihar where he was provided basic medical treatment i.e. stitches and bandages were put and from there he was referred and shifted to another Hospital at Jahangir Puri but since there were no doctors so he was thereafter, shifted to another Hospital near Chandgi Ram State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 16 of 103 Akhara where he was provided treatment and remained there for about 34 hours. According to the witness, the Police met him and collected his report and after he was provided treatment at a Private Hospital and before being taken to Jahangir Puri Hospital he was even taken to Police Station Keshav Puram where his statement was recorded by the Police officials. He has further deposed that he had also gone to Tihar Jail to identify the assailants and had identified the accused Shashi vide proceedings Ex.PW23/A. The witness has deposed that he handed over the receipt of the mobile and SIM card to the Police which is Ex.PW23/B which was seized vide memo Ex.PW23/C. Witness has deposed that on one occasion he came to the Court to get the superdari of his mobile when he identified the other three assailants. The witness has correctly identified the accused Shashi by pointed out towards him (not by name but only by indication) as one of the person who had hit him on his head with a Pana. He has further identified the accused Avdesh as the boy who had snatched his mobile and cash. Witness has further identified Anas as one of the assailants who had gone towards the side of Lal Babu. The witness has also identified the accused Rajuddin on the basis of photographs Ex.PW19/PX1 and Ex.PW19/PX2 as the boy who had come to the driver Lal Babu and inflicted injuries upon him with the knife. (the accused State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 17 of 103 Rajuddin was not physically present in the court on account of heart ailment and was exempted through his brother Kamruddin and through the Ld. Amicus Ms Dhaneshwari who has not disputed the identity). The witness has identified the Maruti car Ex.P1 as the same car in which accused persons had came in front of his truck and after committing the robbery ran away. Witness has also identified a bluish grey colored shirt having blood stains as same which he was wearing on the date of the incident as Ex.P4. This witness has deposed that the mobile was taken by him on superdari and has identified the said mobile by way of photographs of the mobile phone make MICROMAX of black and red color as Ex.P5.
(15) In his cross examination by Ld. Defence Counsel, the witness has deposed that on the day of the incident, he was staying at cement godown situated at Shakur Basti, Railway Platform. According to him the place where the truck was stopped is a main road and the area is a village but he does not remember whether there was any street light at that time or it was dark. He has deposed that he is not aware of the names and addresses of the labours who were present in the truck on the backside and stated that those labours were sleeping at that time. He is not aware if on both sides of the road near the place of incident there were residential houses or factories nor he is aware of the number of truck. According to the witness he did not know driver Lal Babu prior to this incident but he State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 18 of 103 could not raise alarm. He has denied the suggestion that he could not see the assailants who had caught hold of Lal Babu. According to the witness he had purchased his mobile make Micromax 67 days prior to the incident. He has deposed that he was being paid Rs.1.5 per bori (bag) by the said godown. He has denied the suggestion that no mobile was stolen from him because no such mobile was in his possession. According to the witness Rs.4000/ were given to him by the godown officials as total earning of the month. The witness has deposed that after the incident, he became semiunconscious and does not know the name of the hospital where he was taken and has explained that it was in Sainik Vihar area and has also voluntarily added that he is not aware of the road map and locations of Delhi. According to him the police took him at Sainik Vihar / hospital in an official vehicle and he remained in the said hospital which is near Chandgi Ram Akhala for about 56 hours along with Lal Babu and he was relieved from the hospital before Lal Babu. The witness has deposed that the police informed him that his articles have been recovered by them and he was called by the police to identify the same. He is unable to give the name of the hospital where driver Lal Babu had initially rushed him to. He admits that he was called in the court twothree times for the purposes of identification of the accused persons. He has denied the suggestion that he was receiving treatment from the government hospital and he deliberately got State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 19 of 103 himself discharged and took private treatment. The witness has also denied the suggestion that he had identified the accused persons wrongly or that he had identified his mobile in the photograph wrongly. He has further denied the suggestion that quarrel had taken place between him and the labours sitting on the back of the truck and thereafter he had concocted the story and the accused persons have been falsely implicated in this case.
(16) PW24 Montu Mandal has deposed that on 31.03.2011, he along with Rajesh Mandal, Ashok Mandal and Bilash were coming back in the cantor of Lal Babu driven by him after unloading the cement and Lal Babu was driving the vehicle whereas while Bilash was sitting by the side of Lal Babu. The witness has further deposed that he he along with Rajesh Mandal and Ashok Mandal were sitting on the back in the trolley and at about 3:00 a.m. in the night they reached Ram Pura Tpoint where one red colored Maruti car came in front of their Cantor and stop their cantor. According to the witness, four boys got down from the said car and came by the side of driver Lal Babu and other came near the Bilash and inflicted knife blow injuries on the person of Lal Babu and Bilash and robbed mobile, money and papers of Lal Babu and also robbed mobile and money from the Bilash after which all the boys ran away from the spot.
State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 20 of 103 (17) In his crossexamination on behalf of accused, the witness has deposed the trolley where he was sitting was closed from the front and was open from the back due which reason initially he did not see who was present since they were sleeping at that time but when there was a hue and cry, he started peeping from the back side and saw what was happening. According to the witness, he did not come out being scared thinking that if they come down, they will also be beaten. He has deposed that when those persons got inside the car and were moving away, he could see them. He has further deposed that the public persons were not initially present but later, two persons came but the police did not come to the spot at that time. Witness has denied the suggestion that he was not present in the vehicle when the incident took place or that he did not witness the incident.
(18) PW25 Manish Kumar has deposed that he was a student of MCA from JIIMs affiliated IP University and used to earn from home tuitions. According to him the sister of accused Anas namely Kaneez used to take tuitions from him at the rate of Rs. 300/ p.m. He has deposed that Anas had not paid tuition fees and when he demanded his money back, on 31.03.2011 Kaneez brought a mobile phone of make Micromax and gave it to him saying that she is unable to pay the fees. The witness has further deposed that he used that mobile by inserting the SIM which was in the name of his mother State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 21 of 103 and used the same for about 23 days. According to the witness, he asked Kaneez for the bill of the said mobile who told that she was not having the bill on which he (witness) returned that mobile. The witness has further deposed that police came to him and made inquiries on which he told them that Kaneez was residing in his neighborhood in B block in JJ colony, Sector 24 Rohini. The witness has deposed that he also led the police party to the house of Kaneez, the sister of Anas but Anas was not there. He has deposed that the police seized his SIM and recorded his statement. According to the witness, his SIM was seized by the police vide seizure memo Ex.PW25/A and states that the number of his mobile SIM number was 9899761545. According to him, first he was given Micromax mobile of red color by Kaneeze which he returned back as it was a cheap one and without bill and he therefore asked Kaneeze to replace the same after which she brought another mobile of Micromax of green color having the camera which he kept and used. (19) The witness Manish has further deposed that when he returned, he told the police that Anas was sitting in a park with his associates on which police reached there and on his pointing out the accused Anas was arrested. The witness has correctly identified the accused Anas and Razuddin in the Court. He has also identified the mobile make Micromax of red color as the same which was given to him by Kaneez, through photographs which mobile is Ex.P5. He State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 22 of 103 has further identified the mobile make Micromax having camera of green color as the same which was given to him by Kaneez. The photograph of the mobile phone are Ex. PW25/1 & Ex.PW25/2 and the said green color mobile is Ex.P2. This witness has also identified the SIM of Vodafone bearing No. EH183017411591 as it was the same SIM of Vodafone which was seized by the police and it belongs to him and he used the same SIM in both the mobile phones given by Kaneez to him.
(20) In leading questions by the Ld. APP for the State with due permission of the Court, this witness has stated that the said mobile phones were not given to him by Anas but they were given to him by his sister Kaneez. In his crossexamination by Ld. APP for the State, the witness has denied the suggestion that Anas himself handed over both the mobile phones to him in lieu of the fees, however, when the witness has been confronted with statement Ex.PW25/PX1 it was found so recorded. He has further denied the suggestion that since the accused Anas was his neighbour that is why he was deliberately hiding the fact about the handing over of the mobile by the Anas. (21) In his crossexamination on behalf of accused persons, this witness has stated that he was a student but he was running a part time tuition center under the name and style of Laxmi Institute. He has stated that he was not aware of the name of the mother and father of Kaneez. According to him, his institute functioned only for 78 State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 23 of 103 months and has voluntarily added that that it was shut down on account of the present case as the students stopped coming. He has further deposed that the incident took place at a time when the institute was already running for about six months and he had never accepted any item or article in lieu of cash for the tuition fees as had happened in the present case of Kaneez and has voluntarily explained that it was for the first time that such a situation had arisen when a student could not pay the tuition fees and he accepted the mobile phone. According to the witness, at the time when Kaneez handed over the phone to him, it was not in a running condition and has voluntarily added that he had kept it on charging and put his SIM in it as there was no SIM in the phone prior to the time it was given to him. The witness has deposed that he returned the phone to Kaneez within 23 days but he did not recollect the date. He has also deposed that he was alone with Kaneez when she handed over the phone to him. He has also deposed that the police had come to his house on 06.04.2011 for inquiries but they did not take the mobile phone with them and has voluntarily added that the police came to inquire about the mobile from him because he had used his SIM in the same on which he told them that he had returned the same to Kaneez and had only told the Police about the address of Kaneez but he did not accompany them personally. He has further deposed that about 45 days police officers had come to him for investigations and State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 24 of 103 has voluntarily deposed that he had shown them the way to the house of Kaneez from a distance. Witness has admitted that he had never visited the house of Kaneez or Anas personally and has voluntarily stated that he only knew their address. According to him, he handed over his SIM to the police on the day next to their visit at his house for investigations and his statement was recorded in the Police Station on 07/04/2011. He has further deposed that he had seen the mobile phone at the Police Station and has voluntarily stated that he had seen it when he was called to the Police Station and the Police did not returned the phone to him or to any other person in his presence after showing it to him and that he was shown only two phones. He has further deposed that he did not point out the accused Anas to the Police at any point of time and has voluntarily added that he only knew the identity of Kaneez the sister of Anas but not Anas. The witness again said, that he had only shown the house of Anas to the Police saying "maine unko ghar dikaya tha aur kaha tha is ghar se mujhe phone mila tha". According to the witness, he identified the accused Raziuddin @ Raju by name as well as by face as he is his neighbour but he cannot identify Anas by face and has voluntarily added that after the incident, he came to know that Anas was the brother of Kaneez and was residing in the area but he had never seen him and therefore he is unable to identify him. State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 25 of 103 On a court question, the witness has admitted that he was aware that the name of brother of Kaneez is Anas and he resides in his neighbour though he cannot identify him. According to the witness, when he was shown the mobile phone in the Police Station, which he identified on the basis of its color and because it had a camera. Witness has admitted that the same model phones are easily available in the market but had denied the suggestion that he was not given any phone by Kaneez.
(22) The witness Manish was again cross examined by Ld. APP for the State, wherein the witness has admitted that the mobile number 9899761545 had been issued in the name of his mother and the customer application form having the photograph of his mother is Ex.PW25/PX2 along with the proof of the residence i.e. copy of the ration card. Witness has admitted that the Call Detail Record of his mobile is Ex.PW25/PX3 and that as per call details record his mobile was operated from 31/03/2011 on IMEI number 910569701701490 at about 9:44 PM and it was in continued use upto 03/04/2011. Witness has admitted that on 03/04/2011 his SIM was used in the mobile set having IMEI number 910564203170970. According to the witness he is unable to tell if both the mobile phones were recovered from the possession of accused Anas and Shashi which were used by him with his own SIM. State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 26 of 103 Witness has admitted that house No. B37, JJ Colony was situated near his house. He has deposed that Kaneez was studying in 10th Class and states that when she was admitted for tuition classes, she had come of her own and he had not spoken to any of her guardian. Witness has admitted that he was aware that Kaneez had no source of income being a student and that when Kaneez came to him she only told him that she resided at BBlock and he did not make any attempt to contact her guardians. He has further deposed that he was not aware if Kaneez was a minor and he should have spoken to her parents. Witness has denied the suggestion that Kaneez had come with Anas and it was Anas who had asked him to keep her for taking tuitions. Witness has denied the suggestion that Anas was his neighbour and feeling scared of him he had refused to identify him in the Court in his cross examination. According to him, he was not aware if Anas has any other criminal involvement and has stated that he had given tuitions to Kaneez for about two months. Witness has denied the suggestion that he duly identified Anas before the Court in his chief examination and he take U turn in the cross examination about the identification of accused Anas. Witness has further denied the suggestion that he also saw Anas at the house of Razuddin who was his adjoining neighbour. Witness has denied the suggestion that all the accused persons were arrested at his instance by the Police and has also denied the suggestion that his SIM was taken by the police State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 27 of 103 on the same day i.e. on 06.04.2011 when they came to him. Witness has denied the suggestion that he has been won over by the accused persons and that is why he was not identifying accused Anas in his cross examination.
(23) PW27 Lal Singh Yadav has deposed that he is a dealer of Shri Ultra Cement and was also having TATA 1109 having No. HR 69A 5782, for delivering the cement. According to him, on 30/03/2011, his vehicle TATA 1109 having No. HR 69A 5782 was being driven by Lal Babu who along with four other labourers went to Vijay Nagar, near Daulat Ram College, for delivering the cement and after delivering the same, they were returning back. According to the witness, he received a telephonic call about the incident and also about the stab blow of the driver Lal Babu and labour Bilash and robbery was committed with them. The witness has deposed that he was not having any proof of employment of the driver and the labour. (24) In his crossexamination by Ld. Defence Counsel, the witness Lal Singh Yadav has deposed that they maintained a log book in respect of the vehicle and has voluntarily added that the said log book is maintained by the driver but in the entires it does not mention the kilometers traveled by the vehicle. Witness has denied the suggestion that vehicle did not go for the delivery of cement bags and it is for this reason that he did not hand over the log book to the police. Witness has denied the suggestion that he was not the owner State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 28 of 103 of the vehicle and it is for this reason that he did not hand over the RC to the Police. He has deposed that Lal Babu was not residing in the jhuggies of Shakur Pur and states that the labour was residing in the jhuggies of Shakur Pur. He has further deposed that Lal Babu met him before three month back and he maintained the attendance register of driver but he did not give the attendance register of driver to the Police and also did not tell the Police that he was maintaining register. According to the witness, the labour who were in the vehicle did not belong to them and were daily wagers and on the date of incident the place where the vehicle had been parked, there was a traffic jam due to which reason he sent other driver Ghanshayam to fetch the same but on the next day the said vehicle was sent to the Police Station being case property. The witness did not go personally with the driver and he is hence unable to tell the exact place where the vehicle was stationed. He has deposed that the driver Ghanshayam is still working with him and that his driver only got this vehicle back after its examination in the Police Station. Medical Evidence:
(25) PW14 Dr. Vikas Kumar, Senior Resident, Department of Neurosurgery, Shusurt Trauma Centre, has deposed that on 31/03/2011, Dr. Hitender Uike, Senior Resident of the above Trauma Centre had examined the patient Bilash. The witness has identified State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 29 of 103 the handwriting and signatures of Dr. Hitender Uike having seen him writing and signing during the official course of his duties. The copy of the casualty card was exhibited as Ex.PW14/A bearing the signatures of Dr. Hitender Uike. He further deposed that as per the hospital records, the injury was simple in nature from neurosurgical point of view which opinion was encircled at point 'X' on the MLC Ex.PW14/B. This witness has not crossexamined by or on behalf of either of the accused despite opportunity and the testimony of this witness has gone uncontroverted.
(26) PW21 Dr. Dheeraj Kumar, CMO, Sushruta Trauma Centre, Delhi, has stated that on 31/03/2011 he was working as Medical Officer at Sushruta Trauma Center and on that very day he examined Lal Babu S/o Domu Muhkhiya aged about 32 years male, with alleged history of assault vide MLC Ex.PW21/A bearing his signatures at point 'A'. He has further stated that on examination he found sharp cut injury on right lower forearm of size 1x.5cm, CLW on right shoulder of size 2x.5cm, CLW on forehead of size 3x.5cm, CLW on left hand 3x1cm, CLW on right occipital of size 3x.5cm and as per record the patient was referred in department of Neurosurgery, General Surgery & Orthopedics. He has further deposed that on the same day he examined patient Bilash S/o Sukh Dev aged about 28 years male, with alleged history of assault vide MLC Ex.PW14/B State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 30 of 103 bearing his signatures at point 'A' and on examination he found LW on vertex of size 5x1cm and the patient was referred to Neurosurgery for further examination. He was not crossexamined on behalf of accused despite opportunity and evidence has gone uncontroverted. (27) PW22 Dr. Devarshi, SR, Orthopedics, Sushruta Trauma Centre, Delhi, has deposed that on 21/06/2011 he was working as Senior Resident (Ortho) at Sushruta Trauma Center and on that day he pursued the medical record of patient Lal Babu S/o Sh. Domu Mukhiya, aged about 32 years male and his MLC already exhibited as Ex.PW21/A and opined the nature of injury as simple and his endorsement to this effect was at point 'B' on MLC already exhibited as Ex.PW21/A and bearing his signatures at point 'C'. This witness was not crossexamined by or on behalf of either of the accused persons despite opportunity given to them.
Forensic Evidence:
(28) PW12 V. Shankarnarayanan, SSO (Biology), FSL, has deposed that on 06/07/2011 parcels were received in his office in connection with FIR No. 872/11, police station Keshav Puram and the said parcels were marked to him for examination on 19/07/2011.
According to him on biological examination, blood was detected on exhibit Nos. 1 to 7 and his detailed biological report in that regard was exhibited as Ex.PW12/A. He has also deposed that the said State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 31 of 103 exhibits were also examined by him serologically vide his report Ex.PW12/B and on serological examination, exhibit no. 1 showed reaction for human blood group 'B. The witness has deposed that Exhibits No. 3, 5, 6 & 7 showed reaction for human origin of blood only but the blood could not be ascertained. According to him Exhibit No. 2 i.e. blood sample was putrefied and hence, no opinion could be given. This witness was not crossexamined by or on behalf of either of the accused despite opportunity and his testimony has gone uncontroverted.
(29) PW13 Naresh Kumar, Senior Scientific Officer (Biology), FSL Rohini, has deposed that on 01/04/2011 a Tata Tempo bearing Registration No. HR 65 A 5782 was brought in the FSL premises for inspection and he inspected the said tempo and blood was detected and blood stains were lifted from the following places which were marked 'A' and 'B'.
'A' : Blood stains prepared from the steering and inner side of window of driver side.
'B' : Blood stains prepared from the conductor seat. (30) According to the witness (PW13), both the stains were kept in separate envelope and handed over to the Investigating Officer for examination. His detail report is Ex.PW13/A bearing his signatures at point 'A'. In his crossexamination by Ld. Defence Counsel, the witness has deposed that the vehicle was brought to the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 32 of 103 FSL by SI Rakesh at 5:00 p.m. and the inspection was completed by 5:45 p.m. (31) PW17 Sanjeev Juneja, (Photographer) has deposed that he was in the profession of photography and on 01/04/2011 on the asking of Police he along with him went to FSL, Rohini and took the photographs of a Tempo which was having blood stains on the steering, left side seat and the door on the asking of the Police officer who had taken him there. The photographs taken by him are Ex.PW17/A to Ex. PW17/E. In his crossexamination by Ld. Defence Counsel, the witness has deposed that he cannot tell the name of Police officer who took him to FSL Rohini. According to him, he did not recollect the number of the Tempo whose photographs he had taken and apart from the Police officer there were one or two other persons present at FSL but he is unable to tell their details. He has further depose that the said blood stains were present slightly under the window of the door.
Electronic Evidence:
(32) PW15 Tarun Khurana, Nodal Officer, Bharti Airtel Limited has brought the record pertaining to Mobile No.9717356564 and showing the connection in the name of Lal Babu S/o Sh. Dom Mukhiya R/o WZ336, Shakarpur whose customer application form State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 33 of 103 is exhibited as Ex.PW15/A, the CDR for the period 25th March 2011 to 31st March 2011 is exhibited as Ex.PW15/B and the Certificate u/s 65 B of Indian Evidence Act is exhibited as Ex.PW15/C. This witness has further deposed that the Cell I.D. Chart showing the location of this telephone number at various points of time during the above period was exhibited as Ex.PW15/D and has stated that all the above documents bear his signature and authentication at various points mark 'A' which he duly identify. In his crossexamination by Ld. Defence Counsel, the witness has denied the suggestion that he had not brought the correct and duly authenticated record as per law and which was not admissible in evidence.
(33) PW16 Anuj Bhatia, Nodal Officer Vodafone Essar Mobile Services Ltd. has brought the summoned record pertaining to Mobile No.9582289012. He has deposed that according to their official record the said connection was in the name of Ashok Mandal S/o Sh. Kailash Mandal R/o 75, Cement Siding, Shakur Basti, Delhi the customer application form was Ex.PW16/A, the CDR for the period 25th March 2011 to 31st March 2011 was Ex.PW16/B and the Certificate u/s 65B of Indian Evidence Act was Ex.PW16/C. He has also deposed that the Cell I.D. Chart showing the location of this telephone number at various points of time during the above period was Ex.PW16/D and all the above documents bear State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 34 of 103 his signature and authentication at various points mark 'A' which he duly identifies. In his crossexamination by Ld. Defence Counsel, the witness has denied the suggestion that he had not brought the correct and duly authenticated record as per law and which was not admissible in evidence.
Police Witnesses:
(34) PW1 W/HC Rajeshwari being a formal witness has deposed by way of affidavit under Section 296 Cr.PC. According to the witness on 31.03.2011 she was working as Duty Officer from 8:00 a.m. to 4:00 p.m. and at about 1:45 p.m. on receipt of Rukka from Ct. Satpal written by SI Nahar Singh, she made her endorsement on the same and recorded the Kaymi vide DD No. 10A and thereafter the Rukka was given for recording of the present FIR and after recording FIR she gave copy of FIR and original Rukka to Ct. Satpal to hand over the same to SI Nahar Singh. In her cross examination on behalf of accused she has stated that she received the Rukka at about 1:45pm. She does not know as to how Constable Satpal came to the Police Station but states that he remained in the Police Station for about 15 minutes.
(35) PW2 Constable Lokesh being a formal witness has deposed by way of his affidavit in terms of Section 296 Cr.PC.
According to him on 31/03/2011 he was posted as Constable at State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 35 of 103 Police Station Keshav Puram and was deployed as Daily Diary Writer in Police Station Keshav Puram from 12:00 a.m. to 8:00 a.m. and on that day a telephonic call vide DD No. 7B was received from SI Radhey Shyam Police Station Saraswati Vihar present at Bhagwan Mahabir Hospital, Pitam Pura, Delhi, regarding admission of injured Lal Babu S/o Domu R/o WZ331, Shakurpur, Delhi, age 32 years, Driver and Vikas Sharma S/o Sukhdev R/o Cement Siding Age 28 years who sustained injuries at Shankar Chowk and on direction of DO, he lodged the same at 4:35 a.m. vide DD No. 7B dated 31/03/2011. He has stated that the call was marked to SI Nahar Singh and DD Entry was handed over to Constable Satpal to give the same to SI Nahar Singh. This witness has not been crossexamined by or on behalf of either of the accused despite opportunity given to them and the entire testimony has gone uncontroverted. (36) PW3 SI Pradeep being a formal witness has also been examined by way of affidavit in terms of Section 296 Cr.PC. He has deposed that on 05.04.2011 he was deputed as Duty Officer at Police Station Rani Bagh from 8:00 a.m. to 4:00 p.m. and on that day at about 12:30 p.m., he received a Rukka from HC Santosh written by him on which he made the endorsement and recorded Kaymi vide DD No. 10A. He has further deposed that the Rukka was given for recording of FIR No. 86/11 u/s 379 IPC in computer and after recording of FIR No. 86/11 he gave copy of FIR and original Rukka State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 36 of 103 to Constable Jai Singh to hand over the same to HC Santosh. This witness was not crossexamined by or on behalf of either of the accused despite opportunity and his testimony has gone uncontroverted.
(37) PW4 HC Bhim Singh also being formal witness has deposed by way of affidavit under Section 296 Cr.PC. According to him on 03.04.2011 he was posted at Police Station Vijay Vihar and was deputed as Emergency Officer from 8:00 a.m. to 8:00 p.m. and on that day Duty Officer informed him vide DD No. 33B dated 03.04.2011 regarding an unattended car bearing No. DL8CC 9135 parked at House No. A - 26, Beer Singh Colony Budh Vihar, Delhi. Persuant to the same he reached there and found parked that car and when he enquired about the owner, Mr. Saurabh S/o Vihar R/o WZ895, 2nd Floor, Rani Bagh came on the spot and he stated that his above car had been stolen about 23 days ago but he did not get lodged any FIR and only information was given to the Police Station on which HC Bhim Singh handed over the said car to him and filed the call vide DD No. 56B, dated 03/04/2011. He has deposed that his statement was recorded by the Investigating Officer SI Rakesh Duhan on 06/04/2011.
(38) In his crossexamination, the witness has deposed that he had not participated in the investigation of the case and voluntarily stated that he had only received a call with regard to an abandoned State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 37 of 103 car. He stated that he had handed over the car to him on the basis of his identity card and has voluntarily explained that the car belonged to his father Vijay and he had handed over the same to Saurab in view of his relationship. Witness has denied the suggestion that on account of his personal relations with Saurab and also on account of pressure of Senior Officers he released the vehicle to Saurab despite there being no documents of ownership of the vehicle shown to him. (39) PW5 HC Sudhir also a formal witness has deposed by way of affidavit under Section 296 Cr.PC. He has deposed that on 31.03.2011 SI Nahar Singh handed over to him four sealed exhibits sealed with the seal of STC and two sample seal of STC and in this regard he made entry in Register No. 19 vide entry No. 2631. He has further deposed that on 01.04.2011 SI Rakesh Duhan handed him over two exhibits sealed with the seal of RD and in this regard he made entry in register no. 19 vide entry no. 2633. He has further deposed that on 06.04.2011 SI Rakesh Duhan handed over to him four exhibits duly sealed with the seal of RD and in this regard he made entry in Register No. 19 vide entry No. 2637 and on 07.04.2011, SI Rakesh Duhan handed over to him one seizure memo of one Maruti Car and in that regard he made entry in Register No. 19 vide Entry No. 2639 and the same was transferred to Police Station Rani Bagh vide RC No. 3321/1 dated 16.04.2011. According to the witness on 06.07.2011 on the instructions of the IO, he handed State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 38 of 103 over total number 07 sealed exhibits of this case along with FSL Form and Two Sample seals to Constable Sunit Kumar No. 1638/NW vide RC No. 68/21/11 dated 06.07.2011 to deposit the same in FSL, Rohini and further stated that out of seven, four exhibits were sealed with the seal of STC and three exhibits were sealed with the seal of RD. According to him, so long as the exhibits remained in his custody, the same were intact. In his cross examination this witness has denied the suggestion that the entries had been manipulated at the instance of Investigation Officer anti datedly.
(40) PW6 SI Radhey Shyam has also deposed by way of affidavit being a formal witness. According to him on the intervening night of 3031/03/2011 he was deputed as Emergency Officer at Police Station Subhash Place from 8:00 p.m. to 8:00 a.m. and on that day he was informed by the Duty Officer about DD No. 11A dated 31.03.2011 regarding two persons having stabbing injuries with knife on their heads and hands near Shakurpur Village, M Block, Shastri Nursing Home. He reached near Shastri Nursing Home and found that the injured were taken to Bhagwan Mahavir Hospital and he found that the place of occurrence i.e. near Shankar Chown, Lawrence Road, Delhi, was pertaining in the jurisdiction of Police Station Keshav Puram and therefore he informed the Duty Officer of Police Station Keshav Puram in this regard and the call was marked State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 39 of 103 to SI Nahar Singh. He has further deposed that at 7:40 a.m., he returned back to police station and lodged DD No. 14A dated 31.03.2011 regarding his arrival and stated that his statement was recorded by the Investigating Officer SI Rakesh Duhan. In his cross examination, he has admitted that he had not carried out any investigation at the spot and did not notice any blood stains there and that he did not leave Constable Sandeep at the spot of the occurrence. (41) PW7 SI Sonu Ram has deposed by way of affidavit being a formal witness. According to him, on 01.04.2011 he was posted as PSI in Police Station Keshav Puram, Delhi, and on that day he joined the investigation of the case and along with SI Rakesh Duhan departure for FSL, Rohini. He has deposed that the vehicle No. HR 69A5782 Tempo was taken to FSL, Rohini, for inspection and the photographs of the vehicle were taken by private photographer at FSL and thereafter, the Tempo was inspected by Naresh Kumar, Senior Scientific Assistant, Biology, FSL, Rohini, who collected the blood stains from both sides of canter which were kept into two envelops and the same were handed over to IO / SI Rakesh Duhan who took the same into Police possession through Seizure Memo.
(42) In his crossexamination this witness has denied the suggestion that since he did not participate in the investigation along with SI Rakesh Duhan it is for this reason that he cannot tell the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 40 of 103 name of the other witnesses. He has deposed that name of the photographer who had taken the photographs was Sanjeev Juneja. Witness has denied the suggestion that he documentation was done while sitting in the Police Station or that he had put his signature at the instance of IO.
(43) PW8 HC Rohtash Singh has also deposed by way of affidavit being a formal witness. According to him, on 3031.03.2011 he was deputed as Duty Officer at Police Station Subhash Place from 12:00 night to 8:00 a.m. and that during that night information was received in PS from Omega 50 Operator that near Shakurpur Village, M Block, Shastri Nursing Home, two persons having stabbing injuries with knife on their heads and hands on which information he lodged DD No. 11A dated 31.03.2011 and the call was marked to SI Radhey Shyam for necessary action. He has also deposed that at 7:40 a.m. SI Radhey Shyam returned back to the Police Station and lodged DD No. 14A dated 31/03/2011 regarding his arrival from the above said call wherein, he mentioned that the place of occurrence pertained in the jurisdiction of Police Station Keshav Puram therefore call was transferred to that Police Station. This witness has not been crossexamined by or on behalf of either of the accused persons despite opportunity and his testimony has gone uncontroverted. (44) PW9 Constable Sunit has deposed by way of affidavit. According to him on 06/07/2011, he was posted as Constable at State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 41 of 103 Police Station Keshav Puram and on that day at the instructions of the Investigating Officer SI Rakesh Duhan he took total 07 sealed exhibits of this case along with FSL Form and 02 sample seals vide RC No. 68/21/11 dated 06/07/2011 from HC Sudhir Kumar, MHC (M) (CP), Police Station Keshav Puram. He has further deposed that out of seven, four exhibits were sealed with seal of STC and three exhibits were sealed with the seal of RD. This witness has also deposed that he deposited the above mentioned exhibits with FSL Form and sample seals at FSL, Rohini on the same day. He has further deposed that he handed over the acknowledgment and copy of RC to MHC (M), Police Station Keshav Puram as well as to Investigating Officer SI Rakesh Duhan. He has admitted that so long the exhibits remained in his custody, the same remained intact. In his crossexamination this witness has deposed that the directions given to him by SI Rakesh were oral & he had mentioned this fact in the Ravangi made by him vide DD No.29B dated 06/07/2011. (45) PW10 Constable Satpal has also deposed by way of affidavit under Section 296 Cr.PC being a formal witness. According to him on 31.03.2011, he was posted as Constable at Police Station Keshav Puram and was on Emergency Duty from 8:00 p.m. to 8:00 a.m. and on that day DD No. 7B was given to him to hand over the same to SI Nahar Singh. He has deposed that he handed over the DD Entry to SI Nahar Singh and reached at State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 42 of 103 Bhagwan Mahabir Hospital along with him. He has also deposed that after reaching there, he came to know that the injured had sent to Trauma Centre, Civil Lines, and they reached there where the injured persons were found under treatment. He has also deposed that SI Nahar Singh took MLCs of injured persons and recorded the statement of one Lal Babu (injured). He has further deposed that at about 1:00 p.m., SI Nahar Singh handed over a Rukka to him which he took to the Police Station and handed over it to DO who recorded the FIR.
(46) In his crossexamination on behalf of the accused, the witness has deposed that on being handed over DD No.7B he left the Police Station at about 4:45 AM and reached Bhagwan Mahavir Hospital at about 6:15 AM. According to him, he reached back to the Police Station at 1:45 PM (afternoon). He has deposed that no relatives of the injured were present in the Trauma Center and has voluntarily explained that only the employer where the injured were employed was present whose name he cannot tell. According to the witness, apart from the statement of Lal Babu, no other statement was recorded in his presence at Trauma Center.
(47) PW11 HC Santosh has deposed that on 05/04/2011 he was present in the Police Station when Vijay Hans came and gave his statement regarding his stolen Maruti Car No. DL 8CC 9135 on intervening night of 3031.03.2011. This witness has also deposed State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 43 of 103 that he recorded the statement of Vijay Hans and prepared a Rukka and the same was handed over to Duty Officer SI Pradeep for investigation. According to the witness, later, Constable Jai Singh came to him and handed him over the Rukka and copy of FIR No. 86/11, U/s 379 IPC, Police Station Rani Bagh, Delhi. He has relied upon the copy of FIR No. 86/11 Ex.PW3/A. In his cross examination, the witness has admitted that the statement of Vijay Hans recorded by him is not on record.
(48) PW26 SI Devi Lal has deposed that on 06/04/2011 he was he was posted at Police Station Keshav Puram and on that day, he joined the investigation of this case and he along with Investigating Officer SI Rakesh, Constable Sumeet, Constable Lokesh and Constable Yadvender raided the premises of Manish resident of A114, J.J. Colony, Sector24, Rohini where Smt. Chandwati met them who was the mother of Manish. He has further deposed that the Investigating Officer asked Chandwati about the phone No. 9899761545 on which she informed him that this mobile number was being used by her son Manish. Thereafter the Investigating Officer made enquiries from Manish who informed him that he used the SIM in two mobiles given by his neighbour Anas R/o B37, J.J. Colony, Sector24, Rohini. According to the witness, Manish further informed the IO that the mobiles were given to him in lieu of tuition fees of the sister namely Kaniz of Anas but since they State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 44 of 103 did not give any bill to him that is why he returned the mobiles back. The witness has deposed that thereafter they along with Manish went to the house of accused Anas which was found locked and thereafter Manish informed the police that Anas used to visit his friend accused Rajuddin who was also residing nearby. Witness has further deposed that when they went to the house of Rajuddin, he was not present there but his father was present there and he told that accused Anas, Rajuddin and their two friends left the house. Thereafter, they reached near the park at the instance of Manish where they saw that four boys were sitting in the park. According to the witness, they reached in the park where Manish identified accused Anas and all those boys were apprehended while they were trying to run away on seeing the police. The witness has deposed that Anas was interrogated by the Investigating Officer and Anas produced one mobile and told them that it was the robbed mobile phone which was robbed by him from a Tempo Driver in the intervening night of 30th and 31st of March 2011. The witness has deposed that the IO converted the mobile into a cloth parcel and sealed with the seal of RD and took into possession vide seizure memo Ex.PW26/A and thereafter Anas was arrested vide memo Ex.PW26/A1 and his personal search was conducted vide memo Ex.PW26/B. This witness has further deposed that Anas also made disclosure statement vide memo Ex.PW26/C. State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 45 of 103 (49) According to the witness, the Investigating Officer had also made enquiries from coaccused Shashi who had also produced one mobile phone make Micromax which was turned into a cloth parcel and sealed with the seal of RD. He has further deposed that the accused Shashi also disclosed that it was the same mobile which he had robbed from the conductor of a Tempo at T. Point Rampura. The mobile was seized vide Ex.PW26/D. The witness has further deposed that Shashi was arrested vide memo Ex.PW26/E and his personal search was conducted vide memo Ex.PW26/F and his disclosure statement was recorded vide memo Ex.PW26/G. The witness has further deposed that thereafter the accused Rajuddin was interrogated and was arrested vide memo Ex.PW26/H; his personal search was conducted vide memo Ex.PW26/H and he made his disclosure statement vide memo Ex.PW26/I. According to the witness, accused Avdhesh Tiwari was also interrogated who also confessed his involvement in the present case and hence he was arrested vide memo Ex.PW26/J; his personal search was conducted vide memo Ex.PW26/J1 and he made disclosure statement vide memo Ex.PW26/K. This witness has stated that the accused Anas in pursuance of his disclosure statement led the police party near the park and lifted a knife which was lying under some bricks and disclosed that it was the same knife which was used by him in the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 46 of 103 robbery. According to the witness, the said knife was measured by the Investigating Officer after which its sketch was prepared vide Ex.PW26/L and it was turned into a cloth parcel and sealed with the seal of RD and taken into possession vide Ex.PW26/L1. Witness has further deposed that thereafter they all went to the house of Manish who handed over the SIM Card to the Investigating Officer which was used by him in the mobile phones given to him by accused Anas which SIM was put into a match box and a cloth parcel was prepared and sealed with the seal of RD which was taken into possession vide memo Ex.PW25/A. The witness has further deposed that since the accused had disclosed that they had parked the Maruti Zen car bearing No. DL 8CC 9135 outside the house of accused Rajuddin therefore they went there and took the said car to Police station Vijay Vihar. The witness has deposed that the accused had also disclosed that the said vehicle was stolen by them from the area of Police Station Rani Bagh and was used in the crime in the present case. Witness has further deposed that accused were confined in Lockup in muffled faces.
(50) According to the witness, on 07/04/2011, all the four accused persons were taken out from the Lockup in muffled faces and he along with Investigating Officer SI Rakesh, Constable Lokesh, Constable Sumeet and HC Pramod along with all the accused persons reached near the place of occurrence where all the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 47 of 103 accused persons identified the place of occurrence respectively vide pointing out memo Ex.PW26/M, Ex.PW26/M1, Ex.PW26/M2 and Ex.PW26/M3. The witness has further deposed that thereafter the accused Shashi and Anas led the police party to Saran Govind Store near Road No. 43, Rani Bagh from where they had stolen the Maruti Zen No. DL 8CC 9135 and the Investigating Officer prepared pointing out memo which was Ex.PW26/N and Ex.PW26/N1. He has further deposed that the Investigating Officer also called the owner of the said vehicle namely Saurabh at the spot along with the vehicle who reached there and the said vehicle was taken into possession vide Ex.PW26/O. The witness has identified the accused Anas, Shashi, Rajuddin and Avdhesh Tiwari in the Court and has also identified one knife as Ex.PW26/1, SIM of Vodafone Ex.PW25/3, mobile phones Ex.P5 and Ex.P6 through photographs Ex.PW25/1 and Ex.PW25/2. He has also identified the photograph of the parcel of black green colour mobile of Micro Max which is now Ex.PW26/2.
(51) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he along with Investigating Officer SI Rakesh and other staff reached the residence of witness Manish by Innova Car of white colour but he did not remember the number of the same. He stated that the place where he had gone i.e. A 114, JJ State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 48 of 103 Colony, Rohini, Delhi, was commonly known as Sector 24 JJ Colony, Rohini. Witness has denied the suggestion that there is no such colony as Sector 24, JJ Colony, Rohini, Delhi, and stated that the house of Manish was a pucca house and the said house was having 2 or 3 floors but could not tell as to how many rooms were there in the said house and voluntarily explained that he had only entered in one room. According to him, the place where the house of Manish was situated, was a residential area and there were houses around his house and he reached at the house of Manish at about 4:45 p.m. but he did not see the attendance register of the Tuition Centre with regard to the sister of accused Anas. According to the witness, from the house of Manish, he went to the house of accused Anas, along with Manish and reached there at about 6.:00 p.m. and states that the house of Manish is situated in the gali and that the house of Anas is also situated in a gali. He does not recollect how many stories are there in the house of Anas and states that he did not make any inquiries from the neighbors of Anas. He has further deposed that the address of Rajuddin is A133, JJ Colony Sector 24, Rohini, Delhi and there was hardly distance of 10 minutes between the house of Rajuddin and the house of Anas. He has further deposed that the house of Rajudin was also situated in a gali but he could not tell the number of stories and has stated that they had met the father of Rajudin when they reached his house. He is unable to tell the name State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 49 of 103 of father of Rajudin and states that they did not record any statement of father of Rajudin. He has deposed that they left the house of Rajuddin after 5 minutes and reached the park within 5 to 10 minutes. He has deposed that the park was not a big one and only four persons were sitting in the park. He has further deposed that there was no specific identification of the said park and the said park was having a boundary wall but he could not say whether it was of iron or cemented / bricks at the place where he apprehended accused Anas. The witness has further deposed that he does not recollect what clothes Anas was wearing at the time of his arrest. He also does not recollect the colour of his clothes and has stated that nothing was recovered from the personal search of the accused Anas. Witness does not recollect the description of the clothes worn by other accused persons at the time when they were apprehended and stated that he cannot say as to whether any thing was recovered from other accused persons or not from their personal search. Witness further stated that the accused Anas handed over the mobile phone of make Micromax of black and green colour to the Investigating Officer at the spot in his presence and that the disclosure statement of accused Anas was recorded in the park in the light of street light which was on the road. According to him the accused Shashi also produced one mobile phone of Micromax of black and red colour to the Investigating Officer. He has further deposed that the accused Shashi State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 50 of 103 was apprehended by Constable Yadvender. According to him, the knife was recovered at the instance of accused Anas from under the bricks in a corner of the park. He has further deposed that the blade of the knife was made of iron and it was an old one and its handle was of wood. He has also stated that they left the spot at about 9:15 p.m. and they again went to the house of Manish within 15 minutes thereafter. Witness has further deposed that he did not recollect the name of the service provider of the SIM card and that statement of Manish was recorded at his house. According to the witness, in the morning of 07.04.2011, he along with Investigating Officer and other staff including HC Pramod, Constable Lokesh, Constable Sumit, went to Rani Bagh from where the Maruti car was stolen but he did not remember the exact time when they reached there. Witness is unable to tell whether the Investigating Officer had taken the documents of the car from the owner of the vehicle or not and has stated that the statement of the owner of the car was recorded there and thereafter they all returned to the Police Station at about 5:00 p.m. He has denied the suggestion that the SIM has been planted upon the accused person or that no mobile phone was recovered from the possession of the accused and the same have been produced by the witnesses Lal Babu and Bilas.
(52) PW28 SI Nahar Singh has deposed that in the intervening night of 30 to 31.03.2011, he was posted at Police Station State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 51 of 103 Keshav Puram and on that day he was on emergency duty along with Constable Satpal and he received DD No. 7B in respect of a stabbing incident with Lal Babu and Bilash Sharma at Shankar Chowk. He has proved the certified copy of the said DD Ex.PW2/A. He has deposed that he along with Constable Satpal left the Police Station and reached at Bhagwan Mahavir Hospital where SI Radhey Shayam of Police Station Sarsawati Vihar also met them and he was told that both the injured had been removed to Trauma Center on which he alongwith Constable Satpal reached at Trauma Center and collected the MLCs of Lal Babu and Bilas. According to the witness, both the injured were fit for statement and hence he recorded statement of Lal Babu which is Ex.PW19/A and prepared Rukka Ex.PW28/A which he handed over to Constable Satpal and sent him for registration of FIR. The witness has deposed that he remained at Trauma Center when the Doctor handed over two sealed parcels containing the clothes of injured, two sealed parcel containing the blood sample and sample seals which he seized vide memo Ex.PW28/B and Ex.PW28/C. He has further deposed that the Injured Bilash was discharged from the Hospital and he along with Bilash reached at the spot where he prepared site plan at the spot at the instance of Bilash which is Ex.PW28/D. He has further deposed that he also called three other labourers through injured Bilash who reached at the spot and disclosed their names as Montu Mandal, Ashok Mandal and State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 52 of 103 Rajesh Mandal and he recorded their statements under Section 161 Cr.P.C. He also recorded statement of Bilash at the spot and in the mean time, Constable Satpal reached at the spot and handed over copy of FIR and Rukka to him and he along with Constable Satpal and Bilash left the spot in search of accused persons in the area of Britania Chowk and Ram Pura side but could not find anybody and thereafter, he returned to the Police Station and case property was deposited with the MHC (M) and subsequently, on the direction of SHO, the investigation was transferred to SI Rakesh and hence he handed over the file to MHC (R).
(53) In his cross examination by Ld. Defence Counsel, the witness has deposed that he left the Police Station at about 4:37 a.m. on 31/03/2011 on his motorcycle and reached Bhagwan Mahavir Hospital within 1520 minutes and from there they reached Trauma Centre within one hour. The witness has further deposed that he recorded statement of Lal Babu in the Hospital room and at that time only Constable Satpal was with him. He has further deposed that the injured Bilash was also present in the said room of the Hospital and the Rukka had been sent at 1:00 p.m. (afternoon). He is unable to tell the exact time when Constable Satpal reached at the spot after registration of the case but voluntarily added that he must have reach back after 2 ½ hours. He has deposed that in his presence only one injured namely Bilash was discharged from the Hospital and he left State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 53 of 103 Trauma Center at about 11:00 a.m. and again said he left Trauma Center at about 1:30 p.m. and stated that Bilash remained with him thereafter. Witness has further deposed that the labours present at the spot did not give him any document at the spot with regard to their employment with Bilash and he had recorded the statement of all the four labour and Bilash at the spot itself from 2:30 p.m. to 5:00 p.m. Witness has denied the suggestion that he never reached the spot. He stated that the spot of incident is a crowded area and he did not meet any eye witness to the incident at the spot and reached back at the Police Station at about 6:30 p.m. Witness has denied the suggestion that he did not carry out any investigation at the spot or that all documentation was done by him while sitting in the Police Station. (54) PW29 SI Rakesh Duhan has is the investigating officer of this case and has proved the proceedings conducted by him. According to him on 01/04/2011 he was handed over the investigations of this case on which he along with PSI Sonu Ram came to FSL Rohini and also called the owner of vehicle No. HR 69A 5782 Canter along with the said Canter at FSL Rohini on which the said Canter was produced by driver Ghanshyam. He has deposed that photographer was called who took the photographs of the vehicle which are Ex.PW17/A to Ex.PW17/E and thereafter, the vehicle was got inspected by Forensic Expert Sh. Naresh Kumar who found some blood stains on the driver side i.e on the steering and the door and as State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 54 of 103 well on the conductor side seat which were lifted by Naresh Kumar who prepared two separate envelopes of the said exhibits and after converting the same into a pullinda he sealed the said envelope with the seal of RD and thereafter prepared the seizure memo of the same which is Ex.PW7/A. The witness has deposed that he recorded the statement of the expert Naresh Kumar and the photographer and the vehicle was thereafter returned to the driver. He has further deposed that on 06.04.2011, SI Devi Lal, Constable Sumeet, Constable Lokesh and Constable Yadvender joined him in the investigations and both the robbed mobiles make Micromax had been put on electronic surveillance and from the details they came to know that they were being used by some person by the name of Chandwati W/o Ravinder, resident of A114, J.J. Colony, Sector24, Rohini on which they all went to A114, JJ Colony where Chandwati met them and they made inquiries from her regarding the use of the mobile No. 9899761545 on which she informed them that the said mobile number was of her son Manish who was using the same. According to the witness, he interrogated Manish regarding the said mobile who informed them that he had taken the mobile from one Anas resident of the same area whose sister was taking tuition from him and this mobile had been given to him in lieu of tuition fee but since Anas did not give him the bill of the mobile therefore he had returned the same. The witness has deposed that Manish further informed him that State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 55 of 103 Anas was residing at B37, J.J. Colony, Sector24, Rohini, and hence thereafter they along with Manish went to the house of accused Anas but the house was found locked and thereafter on further inquiry Manish informed them that accused Anas used to visit his cousin Rajuddin who is also residing nearby where he could be found. According to the witness thereafter, they all went to the house of Rajuddin where again Anas was not present there but in the house of Rajuddin, the father of Rajuddin was present who informed them that both Anas and Rajuddin had left with their friends and could be found near the park on which they went to the park which was pointed out to them by Manish there they found four boys were sitting in the park. The witness has deposed that when they reached there, and Manish identified accused Anas and all the four boys were apprehended while they were trying to run away on seeing them. The witness has further deposed that accused Anas was first interrogated by the him who admitted that he had the mobile with him and thereafter he recorded the disclosure of Anas vide memo Ex.PW26/C. The witness has further deposed that the accused Anas thereafter, produced one mobile from his pocket and disclosed that it was the same mobile which he had robbed from a Tempo Driver in the intervening night of 3031/03/2011 which mobile phone was converted into a pullanda with the help of a cloth and sealed with the seal of RD and taken into possession vide seizure memo State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 56 of 103 Ex.PW26/A. He has also deposed that the accused Anas was arrested vide memo Ex.PW26/A1 and his personal search was conducted vide memo Ex.PW26/B. According to the witness, thereafter he made enquiries from the coaccused Shashi who had also been apprehended at the spot whom Anas had identified as the other person who was with him at the time of robbery wherein Shashi admitted his involvement in the robbery committed by him in the intervening night of 30/31.03.2011 and also produced one mobile make Micromax which was converted into a cloth parcel and sealed with the seal of RD and Shashi further disclosed that it was robbed by him from the conductor of a Tempo at T. Point Rampura which disclosure was recorded by him vide memo Ex.PW26/G and this mobile pullanda was seized by him vide Ex.PW26/D. The witness has further deposed that Shashi was arrested vide memo Ex.PW26/E his personal search was conducted vide memo Ex.PW26/F. Witness has further deposed that since Anas had also disclosed the involvement of Rajuddin he therefore, interrogated the accused Rajuddin who similarly disclosed about his involvement in the robbery which had taken place in the intervening night of 30 / 31 March 2011 and he also recorded disclosure statement of Rajuddin vide memo Ex.PW26/I and Rajuddin was thereafter arrested vide memo Ex.PW26/H his personal search was conducted vide memo State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 57 of 103 Ex.PW26/H1. The witness has further deposed that the other co accused had also disclosed about the involvement of Avdhesh Tiwari on which he interrogated Avdhesh Tiwari at length who disclosed his involvement in the crime and he recorded his disclosure which is Ex.PW26/K after which he was arrested vide memo Ex.PW26/J and his personal search was conducted vide memo Ex.PW26/J1 (55) According to witness SI Rakesh Duhan, the accused Anas led them to a nearby park and took them to one corner from where he got recovered a knife which was lying under some bricks and disclosed that the knife was used in the robbery and he also prepared the sketch of knife vide Ex.PW26/L. After measuring the same its total length of knife was 36c.m, its blade was 23.3 cm and the handle was 12.7 cm. and thereafter, he converted the knife into a cloth parcel and sealed with the seal of RD and thereafter seized the knife vide memo Ex.PW26/L1. The witness has deposed that all the accused were thereafter put in a muffled face. According to the witness they all then went to the house of Manish where Manish handed over to him the SIM Card which he had used in both the mobile sets given to him by accused Anas which SIM was seized vide memo Ex.PW25/A. The witness has further deposed that accused Anas had disclosed that the stolen Maruti Zen bearing No. DL 8CC 9135 was parked in a gali in the area of Veer Singh Colony, Budh Vihar where Rajuddin had taken a room. According to the witness on inquiries State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 58 of 103 they came to know that on 03/04/2011 a message had been received from the PCR pursuant to which HC Bhim Singh reached at the spot and found the Maruti Zen bearing No. DL 8CC 9135 parked there but on local inquiry nobody claimed the vehicle and therefore he opened the vehicle and from the papers came to know about the owner. The witness has deposed that on 07/04/2011, all the four accused persons were taken out from the Lockup in muffled face and he along with SI Devi Lal, Constable Lokesh, Constable Sumeet and HC Pramod alongwith all the accused persons reached near T Point Rampura and all the four accused identified the place of occurrence respectively vide pointing out memos Ex.PW26/M, Ex.PW26/M1, Ex.PW26/M2 and Ex. PW26/M3' and thereafter the accused Shashi and Anas had disclosed that they had stolen the vehicle from Rani Bagh area and led them to Saran Govind Store near Road No. 43, Rani Bagh from where they stolen the Maruti Zen No. DL 8CC 9135 and he thereafter, prepared pointing out memo which is Ex.PW26/N and Ex.PW26/N1. He has further deposed that while they were still at the spot, the owner of the said vehicle namely Saurabh also reached and he recorded his statement and he took the vehicle along with the key into possession vide Ex.PW26/O. (56) According to the IO/ SI Rakesh, on 10/04/2011 complainant Lal Babu came at the Police Station and identified the Maruti Zen bearing No. DL 8C C 9135. According to the witness, on State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 59 of 103 14.04.2011, he met complainant Lal Babu and the injured Bilash who produced the bill of mobile phone and envelop of SIM of Vodafone to him and he seized the same vide seizure memo Ex.PW23/C and the bill is Ex.PW23/B and the envelop of SIM of Vodafone is Ex.PW29/A and he recorded the statement of Lal Babu and Bilas. He has further deposed that on 19.04.2011, the judicial TIP of accused Shashi was got conducted. He has further deposed that on 23.04.2011 accused Anas, Rajudin and Avdhesh Tiwari refused to participate in TIP proceedings. According to him, on 27.04.2011 witness Lal Babu and Bilash identified accused Rajuddin and Avdhesh Tiwari. He has further deposed that on 11/05/2011 Lal Babu identified accused Anas in the Rohini Court Complex he recorded his statement and on 22/06/2011. He also recorded the statement of Lal Singh the owner of the Canter and of SI Radhey Shyam at Police Station Subhash Place and collected the FSL report.
(57) The witness SI Rakesh has identified the accused Anas, Shashi, Rajuddin and Avdhesh Tiwari in the Court and had also identified the case property i.e. one knife recovered from the accused Anas which was allegedly used in the robbery as Ex.PW26/1, one match box which contains one SIM of Vodafone as Ex.PW25/3, mobile phone through their photograph which is Ex.P5 and Ex.P6 and Ex.PW25/1 and Ex. PW25/2 and the photograph of the parcel of State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 60 of 103 black green colour mobile of Micro Max which is Ex.PW26/2. (58) In his crossexamination by Ld. Defence Counsel, the witness IO / SI Rakesh Duhan has deposed that he along with staff reached the residence of witness Manish in a private vehicle i.e. Innova Car of white colour but he do not recollect the number of the same. He reached at the house of Manish at about 4:455:00 p.m but he did not see the attendance register of tuition with regard to the sister of accused Anas and stated that they remained at the house of Manish for about one hour and from there they reached at the house of Anas at about 6:00 p.m. He has further depose that the house of Manish is situated in the gali and the house of Anas is also situated in a gali but he does not recollect how many stories are there in the house of Anas but had voluntarily added that in so far has he recollected, it was single storied. According to him he did not make any inquiries from the neighbors of Anas and the address of Rajuddin is A133, JJ Colony Sector 24, Rohini, Delhi, and that there is hardly distance of 23 minutes between the house of Rajuddin and the house of Anas. He has further deposed that the house of Rajudin is also situated in a gali but he does not recollect the number of stories but he voluntarily stated that he think it is two storied and they had met the father of Rajuddin when they reached his house whose name was Sharif. He has stated that he did not record any statement of the father of Rajuddin and they left the house of Rajuddin after four to State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 61 of 103 five minutes and reached at the park within 10 minutes. According to him the park was not a big one and only some persons were coming and going in the park and there was no specific identification of the said park and has voluntarily deposed that it had no name but has a boundary wall of iron grill and nothing was recovered from the personal search of accused Anas. He has further deposed that the mobile phone which Anas handed over to him was of black and green colour and the mobile phone handed over by Shashi was of Red and Black colour. According to him the knife was recovered at the instance of accused Anas from under the bricks in a corner of the park. Witness has denied the suggestion that the accused were not kept in muffled face after their arrest. Witness has also denied the suggestion that this knife is not capable of causing any injury to any person. He has denied the suggestion put to him on behalf of the accused persons that the SIM has been planted upon the accused person or that no mobile phone was recovered from the possession of the accused and the same have been produced by the witnesses Lal Babu and Bilash and planted upon the accused persons or that nothing was recovered from the accused persons or at their instance. Witness has further denied the suggestion that accused did not point out any place of occurrence or the the place where the Zen car had been parked and he had falsely created these documents only to connect the accused with the case for working out the same. Witness State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 62 of 103 has admitted that Saurabh is not the owner of the car but voluntarily stated that it is registered in the name of some company. Witness has admitted that the Zen Car was found abandoned and no FIR was lodged initially. Witness has denied the suggestion that the FIR was deliberately got registered in respect of the stolen Zen Car by taking an antidated complaint only to connect the same with the present case. Witness has further denied the suggestion that the accused and their photographs had been shown to the witnesses prior to the conduct of the TIP and also prior to the examination in the Court. Statement of Accused and Defence Evidence:
(59) After completing the prosecution evidence, statements of accused persons were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material were put to them which they have denied. They have stated that they are innocent and have been falsely implicated and have nothing to do with the alleged incident. According to the accused persons, they were lifted by the police from their residences and falsely implicated in this case. According to them, they were already shown to the complainant / witnesses prior to the judicial TIP and also in the court complex before their deposition in the court. The accused persons have also stated that nothing was recovered from them and the recovery effect upon them has been planted by the police. However, none of the accused has examined any witness in defence. State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 63 of 103
FINDINGS:
(60) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the Accused:
(61) In so far as the identity of the accused persons is concerned, none of them were previously known to the complainant and the victims. The case of the prosecution is that the accused are professional robbers and had robbed the victims on the point of knife who were the driver and the conductor / helper of the truck carrying cement bags. In the Judicial Test Identification Parade proceedings, the accused Shashi had been correctly identified by both the victims Bilash and Lal Babu while the other accused namely Anas, Avdhesh and Rajuddin had refused to participate in the Judicial Test Identification Parade. In fact, in the court, the complainant / victim Lal Babu (PW19) and victim Bilash (PW23) have identified all the accused namely Anas, Shashi, Avdhesh Tiwari. Both the victims Lal Babu and Bilash have also identified the accused Rajuddin by way of photographs placed on record by Ld. Defence Counsel, since at the time of recording of their statements in the court, the accused State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 64 of 103 Rajuddin was not present being hospitalized having cardiac problem and was exempted through Counsel and his identity was not disputed.
In this background, I hold that the identity of all the accused namely Anas, Shashi, Rajuddin and Avdhesh Tiwari stands established. Ocular Evidence / Eye Witness Account:
(62) It is settled law that the best evidence in any case is direct ocular evidence. In the present case both the victims i.e. Lal Babu who was the driver of the truck and had received injuries at the time of incident and Bilash who was the conduct / helper sitting near the driver's seat at the time of incident and also received injuries, have both corroborated each other on all material particulars including the manner in which the incident had taken place, the identity of the accused persons and also the role attributed to each accused. (63) Coming first to the statement of complainant / victim Lal Babu (PW19). Relevant portion of his testimony is reproduced as under:
"I am driver by profession and I used to drive the Canter of JP cement agency, Punjabi Bagh. On 31.03.2011, I was coming back after unloading the cement at Vijay Nagar Delhi and was going to leave the labours at Punjabi Bagh. One labour namely Bilash was also sitting on the conductor seat near my seat. Three labour were sleeping on the back of the truck. When I was passing at Rampura T point at about 3 AM, State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 65 of 103 one car came in front of my truck. The number of the car which I could note down as DL1M9185 and I had given the same in my statement. The said car came from Rampura Phatak side, it stopped in front of my truck. I stopped my truck, four boys got down from the car. Two of them came towards my window side and two boys came towards the window of Bilash. The boys who came towards my window started demanding money and when I refused to give them money they started beating me and gave me knife blows which hit me on my both hands, forehead and on my neck on the back side. They opened the window of my side and one of them pulled me from the truck and started searching my pockets. He removed my mobile make MICROMAX of black and green color having two SIMS bearing No.8802400529 and another connection of AIRTEL which now I do not remember. At that time I knew that number also. I am illiterate but I can read and write my name therefore I do not remember the other number. They had also removed my DL, my purse containing original PAN card, ATM, Voter I Card and cash amount Rs 8,000/. The two persons who had come towards Bilash had also given him injuries on his head and after removing the aforesaid articles they sat in the said maruti car and ran away. I put my handkerchief by my left hand on the injuries. I started my truck and moved it towards some nearby hospital. I hardly drove the truck towards Britannia chowk and after crossing the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 66 of 103 same we found a private hospital but it was found closed. I could not reach my truck from the gate of the hospital and on the way I fell down. Some public person saw my condition and make the telephone call at 100 number. PCR came there and took me and Bilash to Mahavir hospital where the owner of the truck had also come. Thereafter I and Bilash were referred to Trauma Center by the said hospital. One Nahar Singh, police official also accompanied us to the hospital. From the Trauma Center we referred to LNJP hospital where we remained admitted for about 45 days. He recorded my statement which is EX PW 19/A bearing my signatures at point A."
(64) Further, in his examination, the witness Lal Babu has duly supported his earlier version and proved that earlier when he had gone to Tihar Jail, to participate in the Judicial Test Identification Parade proceedings, he had identified the accused Shashi. In the court he has correctly identified the accused Anas as the person who had inflicted stab wounds on his forehead and behind his head. He has also identified the accused Shashi and Avdhesh as the persons who had gone towards Bilash who was sitting along with him on the conductor sheet and assaulted him. The witness Lal Babu has further identified the accused Rajuddin (by way of photographs Ex.PW19/PX1 and Ex.PW19/PX2), as the person who had inflicted injuries upon him with the knife. Here I may observe that it is State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 67 of 103 for the first time that the victim Lal Babu has made these allegations of use of knife by accused Rajuddin. In his first statement to the police, he has only named the accused Anas as the person who had inflicted injuries upon him with a knife and had deposed that the other person (now identified as Rajuddin) had removed his belongings. At no point of time did he allege that the other boy had also used a knife. Hence, the testimonies of Lal Babu to the extent of improvements (i.e. use of knife by Rajuddin) is liable to be excluded.
(65) Coming now to the testimony of victim Bilash (PW23). He has corroborated the testimony of Lal Babu (PW19) on all material aspects. The relevant portion of his testimony is reproduced as under:
"I am labour. On 31.03.2011 I was working as a labour at Shri Ultra cement. On that day I along with Lal Babu, driver were coming back on the tempo after unloading the cement near Model Town, Delhi and were going to cement site near Shakur Basti. I was present in the vehicle at the conductor seat along with Lal Babu on the driver seat and 23 labours were sitting on the back of the tempo who were sleeping at that time. When we were passing at Keshavpuram red light towards Lawrence road side at about 23 AM (midnight) one maruti van bearing No. 9135 came in front of our truck and stopped the same. Four persons got down from the said car/van. One of them was carrying a panna with which one opens the tyre of the car. He came to me and hit the same on my head on which I received injuries and I fell down on the ground since I had been pulled down by the said person. Two State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 68 of 103 persons had come to my side and two of them had gone to the driver side where Lal Babu was sitting. The other boy who was with the person who had given me the panna blow removed my mobile make MICROMAX, Rs 4,000/ which I was carrying and thereafter ran away. They said boys thereafter ran away. The driver Lal Babu drove the vehicle after I climbed on the vehicle and thereafter took me to the hospital at Sainik Vihar, there I was provided basic medical treatment i.e. stiches and bandage were put. From there I was referred me and shifted to another hospital at Jahangirpuri but since there were no doctors so I was thereafter shifted to another hospital near Chandgi Ram Akhara where I was provided treatment and remained there for about 34 hours. There the police had also met me and collected my report. After I was provided treatment at a private hospital and before being taken to Jahangirpuri hospital I was even taken to police station Keshavpuram where my statement was recorded by the police officials."
(66) Further, in his testimony the witness Bilash has proved that he had also identified the accused Shashi in Judicial Test Identification Parade proceeding which is Ex.PX2. He has identified the accused Shashi in the court as the person who had inflicted injuries on his head with pana. He has further identified the accused Avdhesh Tiwari as the boy who had snatched his mobile phone and cash. He has also identified the accused Anas as the assailant who had gone towards the side of Lal Babu and assaulted him. He has further identified the accused Rajuddin State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 69 of 103 (by way of photograph Ex.PW19/PX1 and Ex.PW19/PX2), as the person who had gone towards the Lal Babu and inflicted injuries on him with a knife. Here I may note that the witness Bilash in his testimonies in the court has improved upon his earlier statement made to the police under Section 161 Cr.PC in respect of the role attributed to the accused Rajuddin. He has identified the accused Rajuddin as the person who had inflicted injuries upon Lal Babu with a knife along with the accused Anas who had also assaulted him. Earlier, in his statement under Section 161 Cr.PC he has stated that there was only one person who had gone towards Lal Babu and inflicted injuries upon him with a knife, whereas in the court, he named Anas as the person who had assaulted Lal Babu and also identified Rajuddin as the person who had assaulted Lal Babu with a knife. I may observe that in this regard, it is the testimony of Lal Babu which is more credible and authentic since Bilash at the relevant time was being robbed by two persons and it is only natural that his attention and focus would have been on the boys who were on his side rather on the boys who were on the side of the Lal Babu. Therefore, in so far as the accused Rajuddin is concerned, I hold that no doubt his presence has been established at the spot as one of the robbers but the role attributed to him with regard to the use of knife, does not stands established. (67) The witnesses Lal Babu and Bilash had been subjected to sustained crossexamination. Ld. Defence Counsel has vehemently argued State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 70 of 103 that none of the other persons including the labours been able to identify any of the accused. It is argued that it has come on record on the testimonies of labours who were present in the truck that there was complete darkness and under these circumstances it was impossible for the truck driver and the conductor to have identified the accused. I have considered the submissions made by the Ld. Defence Counsel and I may observe that the labours present in the truck and also the victim have admitted that the labour was on the backside portion of the truck and not in the front side (except Bilash) when the incident took place. While Lal Babu was driving the truck and Bilash was sitting next to him near the driver seat. Under the given circumstances, the question of the other labours having seen the incident does not arise, since it was only Lal Babu and Bilash who were in front and were being manhandled and assaulted by the accused persons. Therefore, the possibility of their (Lal Babu and Bilash) having seen the accused is much more than the other persons. Both Lal Babu and Bilash have proved that the accused had come in a Maruti car bearing No. DL8CC9135 (Ex.P1) which they had put in front of their truck Compelling Lal Babu to stop the truck after which they committed robbery. It has also been proved by Lal Babu that his mobile phone make Micromax of black green colour, dual SIM, in which he was using SIM number 8802400529 (Ex.P2) was taken away by the robbers, which mobile phone he has correctly identified by him in the court as belonging to him. The witness Lal Babu also explained that at the time of State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 71 of 103 the incident he could see the faces of the assailants in the light of the car. In this background, I hold that there is no reason to disbelieve his testimony.
(68) Similarly, the witness Bilash (PW23) has also proved that his mobile phone make Micromax of blackred colour (ExP5) had been taken away by the robbers which mobile phone was later on released to him on superdari and he has correctly identified the said mobile in the court by way of photographs. There is no history of any animosity between the accused persons and the victims and there is no reason for them to have falsely implicate the accused. This being the background, I find the testimonies of both Lal Babu and Bilash reliable and trustworthy. I hold that both the witnesses Lal Babu and Bilash have identified all four accused Anas, Shashi, Rajuddin and Avdhesh Tiwari, as the assailants who had committed robbery upon them (by use of knife and panna) Employment details of the Victims:
(69) The witness Lal Singh Yadav (PW27) has testified that he is the dealer of Shri Ultra Cement and was also having TATA 1109 having No. HR 69A 5782 and on 30/03/2011 the said vehicle was being driven by Lal Babu who along with four other labourers went to Vijay Nagar, near Daulat Ram College, for delivering the cement and after delivering the same, they were returning back. He has further proved that he received a telephonic call about the incident of robbery and also about the stab State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 72 of 103 injuries received by the driver Lal Babu and labour Bilash. In his cross examination, he has explained that he was maintaining a regular attendance register of driver which he did not give to the police. He has further explained that the labours which was in the vehicle did not belong to him and were on daily wages. I hereby hold that there is no reason to disbelieve the testimonies of this witness.
(70) Further, the testimony of Lal Singh Yadav (PW27) finds due corroboration from the testimony of labour Montu Mandal who has been examined before this court as PW24 who has proved that on 31.3.2011 he along with other labour namely Rajesh Mandal, Ashok Mandal and Bilash were on the truck which was being driven by Lal Babu. He has further deposed that Bilash was sitting near the driver seat in front portion of the truck while he along with Rajesh and Ashok were siting backside of the truck and at about 3 AM when they reached Rampura T Point, one Maruti car came in front of their truck and four boys got down from the said car and two of them came to the side of driver Lal Babu and robbed him of his mobile phone, money and papers after inflicting injuries by a knife, while the remaining two boys went towards the Bilash and robbed his mobile phone and money and thereafter all the four assailants ran away from the spot in their Maruti car. This witness in his crossexamination has explained that the back portion of the truck was closed from front and open from back and initially he did not see what was happening but on hearing hue and cry he started peeping from the back side and saw what was State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 73 of 103 happening. I hold that Montu Mandal is an independent witness and there is no reason to disbelieve his testimony.
(71) It, therefore, stands established that on the date of incident i.e. 31.3.2011 Lal Babu was on duty on the truck in question and labour Bilash was the helper.
Recovery of stolen Maruti Car:
(72) The Maruti Zen bearing No. DL8CC9135 driven by the accused persons was found to have been stolen from Rani Bagh area being used by Saurab (PW18) and Vijay Hans (PW20) who have duly proved that the same. PW18 Saurab has specifically deposed that the Maruti Zen bearing No. DL8CC9135 was in the name of Mukerian Papers Ltd. and on 30.3.2011 it was parked by his father on Road No. 32, opposite Saran General Store, Rani Bagh and in the morning i.e. 31.3.2011 at about 9:00 AM the said vehicle was found missing on which his father lodged a complaint in police station Rani Bagh which complaint is Ex.PW18/A. He has further proved that after two to three days i.e. on 3.4.2011 his father received information from Police Station Vijay Vihar and his father was asked to come to the police station. Saurab has further testified that on receipt of this information, his father went to police station and found the stolen vehicle. According to him the original RC and other papers were present in the vehicle on the basis of which the vehicle was released to him. He has further testified that the music system installed in the vehicle State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 74 of 103 and all the other documents were missing. He has also explained that the vehicle in question was gifted to some person by this company who in turn gifted the same to his father and therefore direct papers regarding ownership were not available.
(73) Similarly, Vijay Hans (PW20) has also proved that the vehicle in question was in the name of Mukerian Papers Ltd. which was given to him by his friend Raj Kumar Jain for use. He has corroborated the testimony of Saurab (PW18) in toto and has also produced in the court the vehicle in question (Ex.P1) i.e. Maruti Zen of blue color, 1997 model bearing No. DL8CC9135 having Chasis No. 278421 and Engine No. 273295. There is no reason to adopt the testimony of this witness. This being the background, I hold that the aspect of ownership of the stolen vehicle is immaterial and it stands established that as on date it was found missing it was being used by Vijay Hans and his son Saurab.
Medical Evidence:
(74) Dr. Vikas Kumar (PW14), Dr. Dheeraj Kumar (PW21) and Dr. Devashi (PW22) have duly proved the MLCs Ex.PW14/A and Ex.PW21/A of both Lal Babu and Bilash, showing that they were brought to the hospital with an alleged history of assault. Dr. Dheeraj Kumar has proved that on examination of Lal Babu, he found sharp cut injury on right lower forearm of size 1 x 5cm, CLW on left hand 3 x 1 cm, CLW on forehead of size 3 x.5 cm and was thereafter referred in department of State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 75 of 103 neurosurgery, general surgery and orthopedics. He has further proved that on examination of Bilash he found lacerated wound on vertex of size 5 x 1 cm and the patient was referred to neurosurgery for further examination.
Further, Dr. Devashi (PW22) has proved his endorsement on Ex.PW21/A at point B wherein he has opined the injury received by Lal Babu to simple. Dr. Vikas Kumar (PW14) has also proved that the injury received by Bilash were simple from the neurosurgical point of view. I may observe that the nature of injuries present on the body of the injured are compatible to the oral testimonies of the witnesses / victims, and hence, I hold that the medical evidence which has come on record, supports the case put forwarded by the prosecution.
Forensic Evidence:
(75) Sh. V. Shankarnarayanan (PW12) has proved his biological report Ex.PW12/A showing that blood was detected on Exhibit Nos. 1 to 7 (i.e. two shirts having brown stains, two blood samples, two pieces of gauze cloth having brown stains and knife having brown stains). He has also proved his serological report Ex.PW12/B showing that Exhibit No.1 (i.e. shirt) showed reaction of human blood group 'B'. According to him Exhibits No. 3, 5, 6 & 7 (i.e. two blood samples, shirt, two gauze cloth pieces and knife) also showed reaction for human origin of blood but the blood group could not be ascertained.
(76) Similarly, Naresh Kumar (PW13) has proved that 01.04.2011 State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 76 of 103 the Tata Tempo bearing Registration No. HR 65 A 5782 was brought at the FSL, Rohini, for inspection and he inspected the said tempo and blood was detected and blood stains were lifted steering and inner side of window of driver side and the conductor seat and both the stains were kept in separate envelopes and handed over to the Investigating Officer for examination. His has proved his detailed report which is Ex.PW13/A. (77) The above reports establish the fact of the incident having taken place.
Electronic Evidence:
(78) The electronic evidence which in the form of call detail record has been duly proved by the witnesses from the service providers. PW15 Tarun Khurana, Nodal Officer, Bharti Airtel Limited, has proved the the record pertaining to Mobile No.9717356564 issued in the name of Lal Babu S/o Sh. Dom Mukhiya R/o WZ336, Shakarpur, whose customer application form is Ex.PW15/A, the CDR for the period 25th March 2011 to 31st March 2011 is Ex.PW15/B and the Cell I.D. Chart showing the location of this telephone number at various points of time during the above period Ex.PW15/D. Similarly, PW16 Anuj Bhatia, Nodal Officer Vodafone Essar Mobile Services Ltd., has proved the record pertaining to Mobile No. 9582289012 issued in the name of Ashok Mandal S/o Sh.
Kailash Mandal R/o 75, Cement Siding, Shakur Basti, Delhi, vide customer application form Ex.PW16/A, the CDR for the period 25th March State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 77 of 103 2011 to 31st March 2011 Ex.PW16/B and the Cell I.D. Chart showing the location of this telephone number at various points of time during the above period Ex.PW16/D. (79) I have gone through the record in the form of electronic evidence. It is evident from the customer application form Ex.PW16/A that phone number 9582289012 was issued in the name of Ashok Mandal which was being used by Bilash by putting the same in his mobile phone make Micromax X118 of black and red colour which mobile phone was robbed from him on the date of incident i.e. 31.3.2012 and was later on recovered form the possession of accused Shashi vide seizure memo Ex.PW26/D. Further, it is evident from the customer application form Ex.PW15/A that on SIM bearing No. 9717356564 was issued in the name of Lal Babu who was using the same by putting in his mobile make Micromax X226 of red and green colour having which mobile phone was robbed from him on the date of incident i.e. 31.3.2012 and was later on recovered form the possession of accused Anas. Further, it has come on record in the form of testimony of Manish (PW25) that both the robbed mobiles i.e. Micromax of blackgreen colour belonging to Lal Babu and Micromax mobile of blackred colour belonging to Bilash were found to be used after the incident between 31.3.2011 to 3.4.2011 by putting SIM No. 9899761545 which SIM was in the name of Chandwati who is the mother of Manish (PW25) as evident from the call detail record State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 78 of 103 Ex.PW25/PX3. In this regard, the testimony of Manish (PW25) is most relevant who has in his testimony explained that he used to give tuition to Kaneez the sister of Anas who gave him these mobiles in lieu of tuition fee.
(80) In view of the aforesaid, the electronic evidence as discussed herein above conclusively establishes that the accused after committing the robbery the accused Anas has given the mobile phones to Manish (PW25) in lieu of tuition fee of his sister Kaneez and Manish used the said mobile phones between 31.3.2011 to 3.4.2011 and thereafter returned the same back to Anas for the reason that it did not have any valid documents. It also stands established that both the stolen mobiles were recovered from the possession of accused Anas and Shashi and the same have been duly identified by the victims Lal Babu and Bilash in the court. Arrest of the Accused and Recovery of Weapon of Offence:
(81) The case of the prosecution is that after the incident they have come to know that the victims have been robbed of their mobile phones whose details were available with the police, which phone were put on electronic surveillance and from the details it was revealed that some Chandwati was using the stolen phones. Thereafter, police made inquiries from Chandwati regarding use of phone number 9899761545 on the IMEI numbers of the stolen mobile phones who informed the police that the said phone number was being used by her son Manish pursuant to which State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 79 of 103 inquiries were made from Manish who told the police that the sister of accused Anas namely Kaneez used to take tuitions from him and Anas in lieu of tuition fee gave him a mobile phones make Micromax which he used for threefour days by inserting the SIM which was in the name of his mother Chandwati (being used by him) but since the purchase bills of these mobile phones were not given to him by Anas therefore he returned that mobiles to Anas. Manish also handed over to the investigating officer the SIM card of phone number 9899761545 which he used in both the stolen mobiles given to him by the accused Anas and the said SIM was seized by the IO vide memo Ex.PW25/A. It was Manish who informed the police about the house and address of Anas pursuant to which police went to the house of Anas i.e. B block in JJ Colony, Sector 24 Rohini, but the house was found locked. Thereafter, on further inquiry, Manish had informed the police that Anas used to visit his friend Rajuddin on which police reached the house of Rajuddin but he was not found and the father of Rajuddin informed the police that Rajuddin and Anas were sitting in the park pursuant to which the police along with Manish reached the nearby park where four boys were found sitting and seeing them they tried to run away but were apprehended by the police and Manish identified one of them as Anas. On initial interrogations, Anas did not disclose anything but later he disclosed about the incident and his involvement in the same and also produced the mobile from his pocket and stated that it was the same mobile which he had robbed from a Tempo Driver in the intervening night State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 80 of 103 of 3031/3/2011 which mobile was sized by the investigating officer vide memo Ex.PW26/A and thereafter Anas was arrested in this case vide memo Ex.PW26/A1 and his personal search was conducted vide memo Ex.PW26/B. (82) Similarly, inquiries were made from the accused Shashi who was apprehended at the spot and he also admitted his involvement in the present case and produced one mobile phone make Micromax saying that it was the same mobile which was robbed by him from the conductor of a tempo at T Point Rampura on the intervening night of 3031/3.2011 and the said mobile was thereafter seized vide memo Ex.PW26/D after which the accused Shahsi was arrested and personally searched vide memos Ex.PW26/E and Ex.PW26/F, respectively.
(83) Since Anas had also disclosed the involvement of Rajuddin therefore Rajuddin was interrogated who admitted his involvement in the robbery committed by them on the intervening night of 3031/3.2011 and thereafter he was arrested and personally searched vide memos Ex.PW26/H and Ex.PW26/H1, respectively. The accused also informed the police about the involvement of fourth accused namely Avdhesh Tiwari who also duly admitted his involvement and was arrested and personally searched vide memos Ex.PW26/J and Ex.PW26/J1, respectively.
(84) Thereafter, the accused Anas took the police party to the nearby park and got recovered a knife which was lying under some bricks at the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 81 of 103 corner of the park and disclosed that it was the same knife which he had used in the robbery. The investigating officer prepared the sketch of the knife vide Ex.PW26/L and measured the same and the total length of the knife was found 36 cm, its blade was 23.3 cm and the hand was 12.7 cm and thereafter the knife was converted into pullanda and sealed with the seal of RD and was seized vide memo Ex.PW26/L1. All the accused were thereafter kept in muffled faces.
(85) Thereafter, the accused Anas also disclosed that they had parked the Maruti Zen car bearing No. DL8CC9135 in a gali in the area of Veer Singh Colony, Budh Vihar where Rajuddin had taken a room and the said car had been taken away by the police of Police Station Vijay Vihar as somebody had made a call with regard to the abandoned vehicle.
Thereafter, the police party reached at Police Station Vijay Vihar and came to know that on 3.4.2011 on receipt of a message from PCR, HC Bhim Singh reached the spot where he found the aforesaid Maruti car and from the local inquiry nobody claim the said vehicle and therefore he opened the vehicle and from the papers lying in the vehicle he came to know about its owner and hence he made a call to the owner Saurab who reached the spot and informed that the vehicle was stolen from Rani Bagh area but no FIR was lodged and thereafter the vehicle was handed over to Saurab and his statement was recorded. The investigating officer also collected the DD entries in this regard bearing no. 33B and 56 B. (86) The above facts are borne out from the testimonies of various State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 82 of 103 police witnesses who were the members of the investigating team and found due corroboration from the testimony of Manish (PW25) who has proved that he used to give tuition to the sister of accused Anans namely Kaneez and Anas did not pay tuition fee and on 31.3.2011 Kaneez brought a mobile and gave it to him saying that she is unable to pay the fee and Manish took the mobile and inserted the SIM which was in the name of his mother Chandwati and used it for 23 days but when he asked Kaneez about the bill of the mobile, she told him that she did not have the bill on which Manish returned the said mobile back. Manish has also proved having led the police party to the house of Kaneez the sister of Anans. He has also explained that initially he was given the mobile make Micromax of blackgreen colour which was a cheap one and was without a bill and therefore he asked Kaneez to replace the same after which she brought another mobile make Micromx of redgreen colour having camera which he kept and used. Manish had pointed out the place where the accused Anas and Rajuddin resided because he was aware of the same being resident of the same area. He also identified both the mobiles given to him by the sister of Anas in lieu of tuition fee which were identified as the same mobiles which were stolen from the victims. The witness Manish has admitted that he used the SIM of his mother bearing number 9899761545 as reflected in the call detail record Ex.PW25/PX3 dated 31.3.2011 to 3.4.2011 (at 9:45 PM was used). The CDRs also indicate that the SIM 9899761545 was used in the stolen mobile phones bearing IMEI State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 83 of 103 No. 910569701701490 and 910564203170970 belonged to the victims. The testimony of Manish (PW25) finds due corroboration from the testimonies of the police witnesses SI Devi Lal (PW26) and Investigating Officer / SI Rakesh Duhan (PW29).
(87) In this background, I hold that prosecution has proved and established that arrest and apprehension of the accused Anas, Shashi, Rajuddin and Avdhesh Tiwari beyond reasonable doubt. I may further hold that the recovery of stolen mobile phones from the possession of the accused Anas and Shashi also stand established.
FINAL CONCLUSION:
(88) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, 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 State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 84 of 103 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 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.
(89) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of the accused Anas, Shashi, Rajuddin and Avdhesh Tiwari stands established. It stands proved that on 31.3.2011 at about 3:00 AM at Ram Pura T Point, Lawrence Road, the accused Anas, Shashi, Rajuddin and Avdhesh Tiwari, came in stolen Maruti Zen bearing No. DL8C9135 and put the same in front of the truck bearing No. HR69A5782 being driven by the victim Lal Babu with Bilash sitting on the conductor seat next to him and compelled Lal Babu to stop the said truck. It stands proved that after stopping the truck, the accused persons used force and assaulted the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 85 of 103 victim Lal Babu and Bilash. It stands established that the accused Anas showed a knife to Lal Babu and inflicted injuries upon him while Rajuddin robbed him of his mobile make Micromax X226 of black and green colour dual SIM having IMEI No.910564208170971 and 910564203170976, money and documents. It also stands established that the accused Shashi assaulted the victim Bilash with pana and inflicted injuries upon him while the accused Avdhesh Tiwari snatched his (Bilash's) mobile make Micromax X118, black and red colour, dual SIM having IMEI No. 910569701701495 and 910569701701503 and purse, and thereafter all the four accused left the spot in the stolen Maruti Zen car. It stands proved that the stolen mobiles were put on surveillance and it was revealed from the CDR that the same was used on No.9899761545 belonging to one Chandwati pursuant to which inquiries were made from Chandwati who informed the police that the said phone number was being used by her son Manish. It stands established that inquiries were made from Manish who told the police that the said mobile phones were given to him by the sister of accused Anas namely Kaneez in lieu of tuition fee, but since the purchase bills of these mobile phones were not given to him, therefore he returned these mobiles to Anas. It is also stands established that it was Manish who took the police party to a park and on his pointing out the accused persons were arrested and they admitted their involvement in the incident. It stands established that both the stolen mobile phones have been recovered from the possession of the accused Anas and Shashi State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 86 of 103 which have been duly identified in the court by the victims Lal Babu and Bilash as belonging to them. It stands established that the vehicle i.e. Maruti Zen bearing No. DL 8CC 9135 (Ex.P1) was being used by Vijay Hans and his son Saurab and on 30.3.2011 they had parked the said car at opposite Saran General Store, Rani Bagh but on 31.3.2011 morning, found the same missing and therefore informed the police and that subsequently on 3.4.2011 they received a call from Police Station Vijay Vihar informing them of recovery of the said car which was found abandoned in the area. It stands established that the said Maruit Car bearing No. DL 8CC 9135 was used in the commission of the crime in the present case which was the same vehicle which the accused stopped before the truck driven by Lal Babu. Further, it stands established that the accused Anas has also got recovered the knife with which he had inflicted injuries upon the victim Lal Babu. It stands proved that the measurement of the knife has been duly proved by the investigating officer which shows that it was in contravention of the Gazette Notification dated 17.2.1979 bearing No.F.13/203/78Home (C), providing that any any person found in possession of a knife open or close with any of the mechanical device with a blade of 7.62 or more in length and 1.72 cms or more in breadth, in public places should be regulated. The knife so recovered from the accused Anas is clearly beyond the prescribed notified limits and therefore he is liable for the offence under Section 25/27/54/59 of Arms Act. It stands established that after the injured Lal Babu and Bilash were State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 87 of 103 rushed to the hospital, they were treated for the injuries caused to them by the accused persons which injuries were opined to be simple and lends the credence to their version.
(90) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. (91) 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 medical evidence and the witness of the prosecution have been able to built up continuous link. (92) In this background, the accused Anas is held guilty for the offence under Section 392/394/397 Indian Penal Code and also under State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 88 of 103 Section 25/27/54/59 of Arms Act. The accused Shashi, Rajuddin and Avdhesh Tiwari are hereby held guilty for the offence under Section 392/394 Indian Penal Code. (I may clarify that in so far as the provisions of Section 411 Indian Penal Code are concerned, the ingredients of the same stands covered under the provisions of Section 392 and 397 Indian Penal Code therefore no separate findings are required.) (93) Be listed for arguments on sentence on 13.7.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 10.07.2012 ASJ (NW)II: ROHINI State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 89 of 103 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 53/2011 Unique Case ID: 02404R0181282011 State Vs. (1) Anas @ Rahul S/o Mohd. Anwar R/o B37, JJ Colony, Sector24 Rohini, Delhi. (Convicted) (2) Shashi S/o Sohan Lal R/o J Block, Bagriwala Park, JJ Colony, Shakurpur, Delhi. (Convicted) (3) Rajuddin Khan S/o Shaib Khan A133, JJ Colony, Sector24 Rohini, Delhi. (Convicted) (4) Avdhesh Tiwari S/o Ramesh Tiwari R/o A61/3, Beer Singh Colony, Budh Vihar, PhaseII, Delhi. (Convicted) FIR No. : 82/2011 Police Station : Keshav Puram Under Section : 392/394/397/411/34 IPC State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 90 of 103 Date of conviction : 10.07.2012 Arguments heard on : 13.07.2012 Date of Sentence : 17.07.2012 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convicts Anas, Shashi, Rajuddin, Avdhesh in Judicial Custody with Ms. Dhaneshwari, Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
(1) The present case relates to an armed robbery committed by the accused who are habitual/ dreaded criminals involved in large number of cases. The case of the prosecution is that on 31.3.2011 the complainant/ victim Lal Babu was working in JP Cement Agency at Punjabi Bagh and used to drive a Canter (Truck). On the said day after unloading the cement at Vijay Nagar he was going to drop the labours to Punjabi Bagh. One of the labour namely Bilas was sitting next to him whereas three other labours were sleeping on the back side of the canter (truck). At about 3:00 AM when they were passing through Rampura T Point, one Maruti Car bearing no. DL 1M9185 (stolen car) came from the side of Rampura phatak/ railway crossing and stopped in front of his truck on which he was also compelled to stop his truck. Four boys got down from the said Maruti car out of whom two boys came to his side window whereas two of them went State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 91 of 103 towards the side window of Bilas. Two boys who came towards his side, forcibly opened the window and asked him to give whatever he had but when he (Lal Babu) resisted one of them took out a knife and inflicted knife blows on his head, shoulder and hand while the other boy forcibly pulled him down from the truck and snatched his mobile make Micromax of black and green coloured, dual SIM having numbers 8802400529 and 9717356564, his purse having original PAN Card, Voter ID Card, ATM and some cash. Out of these four boys, two boys who had gone towards Bilas inflicted injuries upon Bilas and robbed him of his mobile phone make Micromax Model X118 of black and red colour having IMEI No. 910569701701495 and 910569701701503 with SIM no. 9582289012 and also Rs.
4,000/ belonging to him and after this all the four assailants ran away from the spot in the same Maruti Car in which they had come. Thereafter, Lal Babu put his handkerchief over the injuries and drove his truck to a hospital near Britania Chowk where he could locate a private hospital which however was found closed. Lal Babu could not even reach the gate of the hospital and fell down. It was here that some public person noticed his condition and made a call at 100 number after which PCR came and rushed both Lal Babu and Bilas to Mahavir Hospital from where they were referred to Trauma Center and treated for the Cut Lacerated Wounds which they had received in the incident. It was at the Trauma Center where the statement of Lal State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 92 of 103 Babu was recorded on the basis of which the present FIR has been registered.
(2) On the basis of the testimonies of various witnesses examined by the prosecution, particularly, the complainant / victims Lal Babu and Bilas, vide a detail judgment dated 10.7.2012, this Court has observed that it has been established that on 31.3.2011 at about 3 AM at Ram Pura T Point, Lawrence Road, the accused Anas, Shashi, Rajuddin and Avdhesh Tiwari, came in stolen Maruti Zen bearing No. DL8C9135 and compelled Lal Babu to stop the said truck by putting the said car in front of the truck bearing No. HR69A5782 being driven by the victim Lal Babu with Bilas sitting on the conductor seat next to him. It has also been established that after stopping the truck, the accused persons used force and assaulted the victim Lal Babu and Bilas. It is further established that the accused Anas and Rajuddin came towards Lal Babu and while Anas repeatedly gave knife blows to Lal Babu, the accused Rajuddin robbed him of his mobile make Micromax X226 of black and green colour dual SIM having IMEI No.910564208170971 and 910564203170976, money and documents. It has also been established that the accused Shashi assaulted the victim Bilas with pana and inflicted injuries upon him while the accused Avdhesh Tiwari snatched his (Bilas) mobile make Micromax X118, black and red colour, dual SIM having IMEI No. 910569701701495 and State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 93 of 103 910569701701503 and purse, and thereafter all the four accused left the spot in the stolen Maruti Zen car. It has also been proved that the stolen mobiles were put on surveillance and it was revealed from the CDR that the same was used on No.9899761545 belonging to one Chandwati pursuant to which inquiries were made from Chandwati who informed the police that the said phone number was being used by her son Manish. Further, it stands established that inquiries were made from Manish who told the police that the said mobile phones were given to him by the sister of accused Anas namely Kaneez in lieu of tuition fee, but since the purchase bills of these mobile phones were not given to him, therefore he returned these mobiles to Anas. It has also been established that it was Manish who took the police party to a park and on his pointing out the accused persons were arrested and they admitted their involvement in the incident. It further established that both the stolen mobile phones were recovered from the possession of the accused Anas and Shashi which have been duly identified in the court by the victims Lal Babu and Bilas as belonging to them. It has also been established that the vehicle i.e. Maruti Zen bearing No. DL 8CC 9135 was being used by Vijay Hans and his son Saurab and on 30.3.2011 they had parked the said car at opposite Saran General Store, Rani Bagh but on 31.3.2011 morning found the same missing and therefore informed the police and that subsequently on 3.4.2011 they received a call from Police Station State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 94 of 103 Vijay Vihar informing them of the recovery of the said car which was found abandoned in the area. It has also been established that the said Maruit Car bearing No. DL 8CC 9135 was used in the commission of the crime in the present case which was the same vehicle which the accused stopped before the truck driven by Lal Babu. It has also been established that the accused Anas got recovered the knife with which he had inflicted injuries upon the victim Lal Babu. It further established that during the investigations, on 6.4.2011 at Park situated at JJ Colony, Sector 24, Rohini, Main Road, the accused Anas @ Rahul was found in possession of a stolen mobile i.e. Micromax Model X226 of black and green colour having IMEI No. 910564203170976 and 910564208170971 belonging to Lal Babu. Further, on 6.4.2011 at Park situated at JJ Colony, Sector 24, Rohini, Main Road, the accused Shashi was found in possession of stolen mobile make Micromax Model X118 of black and red colour having IMEI No. 910569701701495 and 910569701701503 belonging to Bilas.
(3) On the basis of the testimonies of various witnesses examined by the prosecution, particularly, the complainant / victims Lal Babu and Bilas; the accused Anas has been held guilty for the offence under Section 392/394/397 Indian Penal Code and also under Section 25/27/54/59 of Arms Act. Further, the accused Shashi, Rajuddin and Avdhesh Tiwari have been held guilty for the offence State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 95 of 103 under Section 392 read with 394 Indian Penal Code. (4) Heard arguments on the point of sentence. The convict Anas is 24 years old, unmarried, 4th class pass and is doing embroidery work. His parents have expired. He has one elder sister who is residing with his mausi. He has already remained in judicial custody for one year, three months and ten days. Apart from the present case, he is also involved in other cases whose details are as under:
1. FIR No. 1462/06 under Section 309/402 IPC, Police Station : Saraswati Vihar.
2. FIR No. 748/07 under Section 392/34 IPC, Police Station : Saraswati Vihar.
3. FIR No. 444/07 under Section 25/54/59 Arms Act, Police Station : Saraswati Vihar.
4. FIR No. 38/08 under Section 457/380/411 IPC, Police Station : Paschim Vihar.
5. FIR No. 341/09 under Section 20/21/61/85, Police Station : Smaipur Badli.
6. FIR No. 168/10 under Section 379/411/34 IPC, Police Station : Subzi Mandi.
7. FIR No. 281/10 under Section 279/411/482/489 IPC, Police Station : Prashant Vihar.
8. FIR No. 281/10 under Section 379/411/34 IPC, State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 96 of 103 Police Station : Vijay VIhar.
9. FIR No. 86/11 under Section 379/411/34 IPC, Police Station : Rani Bagh.
(5) The convict Shashi is 27 years old, unmarried, 7th class pass and caterer by profession. His parents have expired. He has one younger sister and grand mother in the family. He has already remained in judicial custody for one year, three months and ten days. Apart from the present case, he is also involved in other cases whose details are as under:
1. FIR No. 286/10 under Section 379/411/34 IPC, Police Station : Saraswati Vihar.
2. FIR No. 283/10 under Section 379/411/34 IPC, Police Station : Saraswati Vihar.
3. FIR No. 296/10 under Section 457/380/411/34 IPC, Police Station : Maurya Enclave.
4. FIR No. 82/10 under Section 392/397/34 IPC, Police Station : Kesahv Puram.
5. FIR No. 383/09 under Section 457/380 IPC, Police Station : Aman Vihar.
6. FIR No. 539/09 under Section 379 IPC, Police Station:
Saraswati Vihar.
7. FIR No. 607/09 under Section 379 IPC, Police Station:
Saraswati Vihar.
State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 97 of 103
8. FIR No. 311/09 under Section 25 Arms Act, Police Station : Saraswati Vihar.
9. FIR No. 28/08 under Section 379 IPC, Police Station :
Saraswati Vihar.
10. FIR No. 69/08 under Section 379 IPC, Police Station:
Saraswati Vihar.
11. FIR No. 141/08 under Section 379 IPC, Police Station:
Saraswati Vihar.
12. FIR No. 217/08 under Section 379 IPC, Police Station:
Saraswati Vihar.
13. FIR No. 267/07 under Section 457/380/511/34 IPC, Police Station : Ashok Vihar.
14. FIR No. 1225/05 under Section 25/54/59 Arms Act, Police Station : Saraswati Vihar.
15. FIR No. 361/05 under Section 25/54/59 Arms Act, Police Station : Saraswati Vihar.
16. FIR No. 484/03 under Section 379/411/34 IPC, Police Station : Model Town.
17. FIR No. 300/03 under Section 379 IPC, Police Station:
Model Town.
18. FIR No. 309/03 under Section 379 IPC, Police Station : Model Town.
19. FIR No. 403/03 under Section 379/411/34 IPC, Police State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 98 of 103 Station : Model Town.
20. FIR No. 412/02 under Section 379 IPC, Police Station : Model Town.
21. FIR No. 451/01 under Section 379 IPC, Police Station : Saraswati Vihar.
(6) The convict Rajuddin is 23 years old, married, 11th class pass and is doing a private job. He has a family comprising of aged father, mother and wife. He has already remained in judicial custody for twenty seven days. Apart from the present case, he is also involved another case FIR No. 86/2011 under Section 379/411 IPC, Police Station : Rani Bagh.
(7) The convict Avdhesh Tiwari is 23 years old, unmarried, 12th class pass and is doing a private job. He has a family comprising of aged father, mother, one brother and two sisters. He has already remained in judicial custody for twenty seven days. Apart from the present case, he is also involved another case FIR No. 86/2011 under Section 379/411 IPC, Police Station : Rani Bagh.
(8) Heard arguments on the point of sentence. Ld. Amicus Curiae for the accused persons has vehemently argued that keeping in view the young age of the convicts any harsh view would be detrimental not only to the convicts but also the their families. Sh requests that a lenient view be taken against the convicts. On the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 99 of 103 other hand the Ld. Addl. PP for the State has prayed that a strict punishment be awarded to the convicts keeping in view the seriousness of the allegations involved and also the number of their previous involvements. He has argued that the convicts are habitual offender, involved in large number of cases and having no respect for law and therefore do not deserve any leniency.
(9) I have considered the rival contentions. Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. The criminals are unhesitatingly and indiscriminately use dangerous weapons like knives on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. There was no previous animosity between the convicts and the victim and the intent was solely monetary gain. The victims had received injuries in the incident and could save themselves only because of the exemplary courage and presence of mind shown by the Driver Lal Babu who drove the truck to the nearest hospital in an injured condition and thereafter both he and Bilas could be provided the necessary medical treatment in time. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 100 of 103 public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
(10) In the year 2011 in Delhi alone a total number of 53,353 were registered out of which 562 cases were of robbery; 543 cases were of murder and 1,170 cases were of snatching. No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced.
(11) The convicts before this Court are hardened/ dreaded criminals having a history of previous criminal involvements. It is writ large from their criminal record that they do not hesitate to take law into hand and are hence not entitled to any leniency. (12) I, therefore, award the following sentences to the convict Anas @ Rahul:
1. For the offence under Sections 392 read with Section 394 and Section 397 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 101 of 103 for a period of Seven years and fine for a sum of Rs.
10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
2. For the offence under Sections 25/27/54/59 of Arms Act, the convict is sentenced to Rigorous Imprisonment for a period of five years and fine for a sum of Rs.5,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of fifteen days.
Both the sentences shall run concurrently.
(13) In so far as the convict Shashi is concerned, he is also sentenced to Rigorous Imprisonment for a period of Four Years and fine for a sum of Rs.10,000/ for the offence under Sections 392 read with Section 394 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
(14) Further, the convict Rajuddin is also sentenced to Rigorous Imprisonment for a period of Four Years and fine for a sum of Rs.10,000/ for the offence under Sections 392 read with Section 394 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 102 of 103 one month.
(15) In so far as the convict Avdhesh Tiwari is concerned, he is sentenced to Rigorous Imprisonment for a period of Four Years and fine for a sum of Rs.10,000/, for the offence under Sections 392 read with Section 394 Indian Penal Code, the convict is sentenced to In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
(16) Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
(17) The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(18) Copy of the judgment and order on sentence be given to the convicts free of cost and another be attached along with their jail warrants.
(19) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 17.07.2012 ASJ (NW)II: ROHINI
State Vs. Anas etc., FIR No. 82/2011, PS Keshav Puram Page 103 of 103