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Delhi District Court

State vs . 1. Mohd. Noor on 20 January, 2012

    IN  THE  COURT  OF Dr.  KAMINI  LAU:  ADDL.  SESSIONS 
         JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 46/2011
Unique Case ID: 02404R0191302011

State                        Vs.   1.       Mohd. Noor
                                            S/o Mohd. Saleem
                                            R/o Jhuggi No. 357
                                            Rakhi Market,
                                            Zakhira, Delhi. 
                                            (Convicted)

                                       2.   Azim 
                                            S/o Jamil
                                            R/o Jhuggi No. M/95/6
                                            Shahjada Bagh, 
                                            Inderlok, Delhi.
                                            (Convicted)

                                       3.   Mohd. Arif 
                                            S/o Mohd. Hanif
                                            R/o Jhuggi No. M/95/231
                                            Inderlok, Delhi.
                                            (Convicted)


FIR No.                      :              216/2011
Under Section                :              392/397/34 Indian penal Code.
Police Station               :              Saraswati Vihar

Date of committal to Sessions Court :                     12.8.2011
Judgment reserved on :                                    7.12.2011 
Judgment pronounced on :                                  9.1.2012

SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor            Page 1
 JUDGMENT

Brief Facts:

As per the allegations, on 1.6.2011 at about 8:45 PM at Britania Flyover, Shakurpur while travelling in the TSR bearing No. DL 1 RE 8231 being driven by the accused Mohd. Noor, the accused Mohd. Arif who was already sitting in the TSR put the knife on the neck of complainant Dinesh Kumar and the accused Mohd. Azim who was also sitting in the TSR caught hold of complainant and snatched Rs.480/­ cash and one mobile phone make Samsung bearing No. 9811747916 from the complainant and thereafter threw him out of the TSR and ran away. Within a few minutes the accused were apprehended by the police patrolling party on the basis of the TSR details given to them by the victim and also identified by the victim and and the stolen mobile and cash was also recovered. Case of prosecution in brief:

The case of the prosecution in brief is that on 01.06.2011 HC Ram Rattan was on patrolling duty in Beat No. 4, Division No. 2. He along with Ct. Dalip and were checking the vehicles at F Block Red Light at about 8.30 PM when the complainant Dinesh Kumar came to him and told about the snatching of his mobile phone and cash amount by the assailants while travelling in their TSR. After coming to know of the number of the TSR, HC Ram Rattan along with Ct. Dalip rushed towards the direction as disclosed by the complainant i.e. towards Wazirpur Depot on his scooter SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 2 and when they reached near police booth of Subhash Place, they noticed the said TSR and overpowered the same and arrested the accused and got recovered the cash amount and mobile phone of the complainant and informed the local police. The complainant Dinesh Kumar in his statement to the police has stated that on 01.06.2011 at about 8:30 PM he was returning home from MP Bhawan, Chanakya Puri after completing his work of painting and was present at Bus Stand near Power House Ram Pura, when a TSR came there. The complainant further told the police that he asked the TSR driver, with whom two other persons were already sitting, if they would go to Shakurpur on which they said yes after which he sat on the said TSR. Thereafter when the TSR reached at Britania Pul the person sitting on the back seat, whose name was later revealed as Arif, took out a knife and put the same on his neck and asked him to give whatever he had and threatened to stab him while the other person sitting in the TSR, whose name was later revealed as Azim, caught hold of him. The complainant further told the police that he got scared and handed over the Rs.480/­ to Azim and the mobile make Samsung bearing no. 9811747916 (Metro) to Arif. Thereafter, he asked the driver, whose name was later on revealed as Mohd. Noor, to stop the TSR but he instead to stop the auto increased the speed and when the TSR reached at Britania Company near Petrol Pump read light, they threw him out of the TSR and ran away but he could note down the last digits of the TSR. He noticed two policemen on a scooter and told them the entire incident after which those police officials SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 3 followed the TSR and were able to apprehend the TSR along with all three assailants at Netaji Subhash Place (NSP) Police Booth and got recovered the robbed amount and the cell phone from the accused. In the meanwhile the complainant also reached there and thereafter SI Radhey Shyam along with Ct. Tej Pal reached near NSP police booth where HC Ram Rattan, Ct.

Dalip, complainant Dinesh and all the three accused and one TSR bearing No. DL 1R E ­ 8231 found present there. HC Ram Rattan handed over the custody of the accused persons alongwith Rs.480/­, one mobile phone make Samsung and one knife to ASI Radhey Shyam.

CHARGE:

Charges under Section 392/397 read with 34 Indian Penal Code were settled against the accused Mohd. Noor, Mohd. Arif and Azim to which the accused pleaded not guilty and claimed trial. EVIDENCE:

In order to discharge the onus upon it, the prosecution has examined as many as seven witnesses:

Public Witnesses:

PW4 Dinesh Kumar is the complainant who has deposed that on 01.06.2011 at about 8:30­8:45 PM he was returning from MP Bhawan after completion of his work i.e. white wash. He has deposed that after taking the bus from Karol Bagh he had alighted at Punjabi Bagh Power SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 4 House and at Punjabi Bagh Power House he took auto/ TSR No. 8231 in which two persons were already in the auto except driver of the auto. The witness has correctly identified the accused Noor by pointing out towards the accused in the court as the person who was driving the auto. He has also identified the accused Arif and Azim as the persons who were sitting in the TSR by pointing out towards them. According to the witness, he requested the driver of the TSR for a lift as per the fare to Shakurpur to which he agreed and when they reached at Britannia Bridge (flyover), the accused Arif put a knife on his neck on right side and snatched his mobile phone make Samsung while the accused Azim took out his Rs 480/­ from his pocket of the shirt. According to the witness, when they reached near petrol pump on Britania bridge, the accused persons threw him out from the TSR but he was able to note down the last digit number of the TSR. He thereafter noticed two police officials on a scooter and he told them about the incident happened with him. According to the witness, those police officials chased the said TSR and ultimately both the police officials apprehended the said TSR along with the accused persons near the Wazirpur depot and in the meantime he also reached there and identified the accused persons where his statement was recorded which is Ex.PW4/A bearing his signatures at point A. The witness has deposed that when the search of the accused Arif was carried out, from his possession a knife and his mobile phone had been recovered by the police officials. He identified his mobile phone and knife on the point of which he was robbed. SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 5 According to the witness, the IO prepared the sketch of the knife which is Ex.PW3/A and the knife and mobile phone were taken into possession vide memo Ex.PW3/B. He has deposed that the TSR was also taken into possession vide memo Ex.PW3/F and the cash amount of Rs. 480/­ were also taken into possession by the IO which were four currency notes in the denomination of Rs 100/­ and eight currency notes in the denomination of Rs 10/­ each which were sealed vide memo Ex.PW3/C and thereafter all the accused persons were arrested vide memo Ex.PW3/D1 to Ex.PW3/D3 their personal search were carried out vide memo Ex.PW3/D4 to Ex.PW3/D5 all bearing his signatures at point B. According to the witness, the IO had thoroughly interrogated the accused persons who made their disclosure statements vide Ex.PW3/E1 to Ex.PW3/E3 all bearing his signatures at point B. The witness has further deposed that he also handed over the copy of receipt of his SAMSUNG mobile phone which was seized by the IO vide memo Ex.PW3/H bearing his signatures at point B and bill is Ex.PW3/H1 and Ex.PW3/H2. The witness has correctly identified the case property i.e. knife Ex.P1 as recovered from accused Arif; photographs of the currency notes Ex.P­2; photographs of the mobile phone Ex.P­3, the photographs showing the TSR Ex.P­4. According to the witness, the currency notes were recovered from accused Azim and mobile phone were recovered from accused Arif which articles he identified. He has further deposed that the TSR was recovered from the possession of accused Mohd. SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 6 Noor, photographs of TSR are Ex.P­5 also shows the owner of the TSR who had taken the TSR on superdari which he identify.

In his cross examination by Ld. Defence Counsel, the witness has deposed that there was a darkness due to night when he took lift in the auto. He has deposed that the knife was taken out by the accused from the side pocket of the pant worn by him. According to him he could see the knife. He has deposed that it was not buttondar and has voluntarily added that it was simple knife front portion of which was pointed but it was not shining. Witness has not been able to tell the details of the handle because he was being held by the accused. He has deposed that at the time when he was pushed out of the TSR it was moving slowly but he did not fall down at that time and also did not sustain any injuries. According to him he met the police officials hardly within five minutes of the time when he was pushed out from the TSR. He has deposed that both the police officials were in uniform on a two wheeler scooter and has voluntarily added that later on they all were in the car at the place where the accused had been apprehended. According to the witness, he had gone to the spot where the accused persons apprehended in a car with the IO of this case. He has deposed that he was also taken to the police station later where the police had obtained his signatures on some written papers in the police station but he is unable to tell the contents of those papers because same were not read over to him. On court question the witness has stated that no papers were got signed by him at the spot and has stated that at the place where the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 7 accused were apprehended they remained there for about 10­15 minutes. He has also deposed that from the place where the accused persons were apprehended, they went to the police station and has voluntarily added that he had accompanied the police to the police station. He has deposed that the mobile, cash, which were recovered from the accused were sealed in his presence and has voluntarily added that it was deposited in the police station after the documents were prepared. He deposed that the sealing did not take place in his presence. According to the witness, by the time he reached the place where the accused were apprehended his articles i.e. cash and mobile had already been recovered by the police. He has further deposed that the currency notes which were recovered had been shown to him but he cannot tell their number as he was not asked to sign on the currency notes. The witness has further deposed that he had purchased a mobile phone from Gaffar Market but he does not recollect the name of the shop from where he had purchased the mobile. According to him, he has purchased the mobile about eight months prior to the incident and the bill was prepared in his presence but his name was not mentioned on the bill and has voluntarily added that as soon as he purchased the mobile, he simply took the bill and did not sign any where. According to the witness, the SIM of the mobile had been given back by the accused after he made a request to them in this regard. He has deposed that as soon as he was pushed out from the TSR, first he made a call to the police from somebody else mobile and then within a few minutes he found police officers coming SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 8 from the front side and he told them of the incident. Witness is unable to tell the name of the person from whose telephone he had made a call to the police. He has deposed that he had given the details of the TSR and its number to the police, but he did not give the details of the currency notes and has voluntarily added that only told them that his money had been taken. He had also told the police regarding his mobile being snatched and has voluntarily added that he had also told them personally when he had met them. According to him the PCR van had also come to the spot and they were in the vehicle itself and went away after taking the details from him. Witness has admitted that due to darkness he could not properly see the face of the auto driver and he properly saw him for the first time at the place where he was apprehended.

On court question the witness has admitted that from the place from where he had taken the auto i.e. Punjabi Bagh, there was sufficient light and when he spoke to the TSR driver he had seen his face and has voluntarily added that he had casually seen him but he properly noticed him at the place where he was apprehended. On Court question whether at the place where the auto driver had been apprehended if he (witness) coyld identify him (driver) as the same person whose auto he had taken, the witness has clarified that he appeared to be same person.

According to the witness, he identified the auto driver because all the three persons had been apprehended along with the TSR and when the police told him if it was the same persons, he identified them all. He has SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 9 denied the suggestion that he had identified all the accused at the instance of the police and he was not even sure about their identity unless he was told about by the police. The witness has deposed that the detail search of the accused was taken in the police station where their personal articles were also recovered but he cannot tell the details. According to him, he left the police station at about 12­12:30 midnight. He has deposed that he had started from Chankyapuri from 5 PM and from Chankyapuri a took a bus route No. 480 to India Gate and from India Gate he took bus route No. 166 till Karol Bagh. According to him from Karol Bagh he took bus route no. 918 to Punjabi Bagh and from there he took the TSR. He has deposed that he had taken bus No. 166 at about 6­6:30 PM and thereafter he had taken bus route No. 918 at about 7:15 PM which goes to Nangloi and he got down at Punjabi Bagh Power House bus stop at around 8­8:10 PM. He has deposed that he waited at Punjabi Bagh for about five minutes and has voluntarily added that he could not get into bus no. 957 because it was very crowded and therefore he had to take a TSR later on. The witness has denied the suggestion that he was known to the accused prior to this incident and it is for this reason he had their names specifically find a mentioned in the rukka. He has further denied that there was no incident and the entire incident has been created only to book the accused or that he was stock witness of the police and he had made a complaint at their instance.

SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 10 PW5 Anil Kumar has deposed that he is Manager of M/s Sahil Telcom, a unit of Candy Impex, Shop No.126, MCD Market, Karol Bagh, New Delhi­110005. The witness after going through the original bill of dated 02.11.2010 of mobile phone make Samsung make 3310 having S.No. 2769 having IMEI No. 352308045677599 which is Ex.PW3/H­1, has identified the signatures of their representative at point X. This witness has not been cross examined on behalf of the accused despite opportunity and his testimony has gone uncorroborated.

Police Witnesses:

PW1 ASI Tej Singh has been examined by way of affidavits Ex.PW1/A. He was working as duty officer and has proved the registration of the present FIR Ex.PW1/A. He also proved the endorsement made by him on the rukka which is Ex.PW1/B. In his cross examination by Ld. Defence Counsel, the witness has deposed that at 10:40 PM, Ct. Tej Pal handed over him the rukka on the basis of which he recorded the present FIR and handed over the copy of the same along with original rukka to Ct. Tej Pal. Witness has denied the suggestion that the FIR has been registered ante­datedly and is ante­timed.

PW2 HC Ravinder Nath has deposed that on 1.6.2011 he working as MHC (M) and on that day SI Radhey Shyam deposited the case property i.e. knife and cash amount in the Malkhana and he made entry in the Register No. 19 at Sl. No. 3473 copy of which is Ex.PW2/A. He has SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 11 further deposed the on the same day SI Radhey Shyam also deposited the TSR bearing No. DL 1RE 8231 in the malkhana along with the articles recovered during personal search of the accused, which TSR was later on released on superdari. In his cross examination by Ld. Defence Counsel, the witness has deposed that he came to know of the contents of the pullandas by touching them but he did not see the contents personally.

PW3 HC Ram Rattan has deposed that on 01.06.2011 he was posted at Police Station Subhash Place (Saraswati Vihar) and on that day he was on duty in Beat No. 4, Division No.2 and was on patrolling duty round the clock when time he along with Ct. Dalip were checking the vehicles at F Block Red light at about 8.30 PM. According to the witness at that time one Dinesh came to him and disclosed about the snatching of his mobile phone and cash in a TSR No. DL - 1R E 8231. The witness has deposed that after knowing the number of the TSR, he left the complainant Dinesh at the spot where they were checking the vehicle and he and Ct. Dalip rushed towards the direction as disclosed by the complainant towards Wazirpur Depot on his scooter. He further deposed that when they reached near police booth of Subhash Place, they noticed the said TSR and overpowered the said TSR. According to the witness, the said TSR was being driven by accused Mohd. Noor and accused Mohd. Arif and Mohd. Azim were sitting on the rear seat of the TSR. The witness has identified all three accused in the court. The deposed thereafter they made a call in the police station about the incident as disclosed by the complainant and SI SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 12 Radhey Shyam alongwith Ct. Tej Pal reached at the police booth and in the meantime, the complainant also came at the police booth subsequently. The witness has further deposed that from the search of accused Arif one knife was recovered whose length was measured at 27 cm, the blade was 16.5 cm, and a mobile phone make Samsung 3310 belonging to complainant Dinesh was also recovered. According to the witness from the search of accused Azim Rs.480/­ cash in the denomination of four currency notes of Rs.100 and eight notes of the denomination of Rs.10 each were recovered and the same were handed over to the Investigating Officer along with the custody of the accused persons. Thereafter, the Investigating Officer prepared sketch of the knife which is Ex.PW3/A and the knife was sealed with the seal of RS and along with the mobile were seized vide memo Ex.PW3/B which bears his signatures at point A. The witness has further deposed that the currency notes were also sealed with the seal of RS and were seized vide memo Ex.PW3/C bearing his signatures at point A. Thereafter, the IO recorded the statement of complainant Dinesh and got the case registered through Ct. Tej Pal and after registration of the case all the three accused persons were arrested vide memo Ex.PW3/D­1 to Ex.PW3/D­3, personally searched vide memo Ex.PW3/D­4 to Ex.PW3/D­6 and their disclosure statements were recorded vide memos Ex.PW3/E­1 to Ex.PW3/E­3 all bearing his signatures at point A. The witness has deposed that the said TSR was also seized vide memo SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 13 Ex.PW3/F and thereafter all the accused persons pointed out the place of incident vide pointing out memo Ex.PW3/G. The witness has further deposed that on 16.07.2011 complainant Dinesh handed over the copy of receipt of mobile phone make Samsung to the the IO which was seized vide memo Ex.PW3/H and the receipt of the said phone are Ex.PW3/H­1 and subsequent acknowledgment paper is Ex.PW3/H­2.

The witness has correctly identified the case property the knife Ex.P1 as recovered from accused Arif; photographs of the currency notes is Ex.P­2; photograph of the mobile phone is Ex.P­3; photograph of the TSR is Ex.P­4. According to him, the currency notes were recovered from accused Azim and mobile phone was recovered from accused Arif while the TSR was recovered from the possession of accused Mohd. Noor. He deposed that photograph Ex.P­5 also shows the owner of the TSR who had taken the TSR on superdari.

In his cross examination by Ld. Defence Counsel, the witness has deposed that the complainant Dinesh had came running to us on foot and it took him hardly one or two minutes to him to tell the entire story to them. According to the witness, the complainant had told them the number of the TSR and also pointed out the same to them. Has He deposed that the distance between the apprehension of TSR and point where they were checking is about half kilometer and that the complainant reached at the place of apprehension of the TSR within 10 to 15 minutes. He has further SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 14 deposed that they came to know about the names of the accused after the complainant identified them and they interrogated them while they were being arrested. He deposed that during this 10 ­15 minutes while they waited for the complainant, they also made enquiries from the accused persons. He has deposed that the information was given to the police station at about 9.10 PM and they had only carried out the casual search of the accused persons before coming of the Investigating Officer and has voluntarily stated that the actual search was carried out by the IO later on. He has further deposed that the IO/ SI Radhey Shyam reached at the place of apprehension of the accused along with Ct. Tej Pal at about 9.20­9.30 PM and the rukka was sent to the police station by 10.30 PM. According to him Ct. Tej Pal had gone alone to the police station but he does not remember by what means he had gone but he returned by around 11.00­11.15 PM. The witness has deposed that some public persons had gathered at the spot but he did not record any statements of any of the public persons and is unable to say if the IO had done so or not. According to him the knife was measured after preparing its khaka / sketch on a piece of a paper and the sketch present on record which is Ex.PW3/A is the same sketch which was prepared by the IO at the spot. He has deposed that the statements of all the accused were recorded at the spot and thereafter he left the spot at about 12.00­12.30 (midnight). He has also deposed that in his presence IO had given the information to the relative of the accused about their arrest but nobody had come to the spot. He has also deposed that after SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 15 completing the proceedings they went to the Britania Chowk where complainant pointed out the place of the incident. The witness has further deposed that the said place / spot of the incident is hardly one kilometer from the place where the accused persons were apprehended. According to the witness he had gone to the spot along with the IO in a car and remained at the spot of incident for about 10 to 15 minutes and came back to the police station at about 1.00 to 1.30 PM. The witness has further deposed that he did not record the statement of the complainant which was narrated by the complainant to him. He also did not inform the PCR to circulate this message and has stated that the TSR in question was stopped by the Driver on their direction. The witness has admitted that there is a big market at Netaji Subhash Place and the roads are very busy and that shopkeepers and other public persons were available there but he did not ask any public person to join the investigation prior to taking search of the accused persons. He has deposed that he sent a message on his wireless set regarding apprehension of the accused persons and had given a message to the Duty Officer regarding apprehension of the accused persons but is not aware about the DD Number by which his message was recorded in the police station. According to the witness, the complainant reached at the spot on foot where the accused persons were apprehended, prior to the reaching of the IO who reached at the spot after 15­20 minutes. The witness has further deposed that the search of the accused persons was conducted prior to reaching of the IO at the spot but he did not prepare the seizure SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 16 memo in this regard. He deposed that he did not put any specific marks on the currency notes. He does not remember whether the numbers of currency notes are mentioned in the seizure memo or not. According to the witness they remained at the spot upto 12.30 (midnight) and the complainant was also with them on the spot till that time. He has deposed that all the writing work was done at the spot. The witness has denied the suggestion that no disclosure statement was made by the accused persons or that no pointing out memo was prepared. He has also denied that he took the complainant to the spot of the incident in his two wheeler scooter or that the complainant was already aware of the names of the accused and when he came to them he gave them their names.

PW6 Ct. Tej Pal has deposed that on 01.06.2011, he was posted at Police Station Subhash Place (earlier Saraswati Vihar) and on that day he was on emergency duty from 8.00 PM to 8.00 AM. According to him at about 09.07 PM, he along with SI Radhey Shyam on receiving the call of the present case reached near K Block Red light, near Petrol Pump, Britania Chowk. According to the witness, from there they reached near NSP police booth where HC Ram Rattan, Ct. Dalip, complainant Dinesh and all the three accused and one TSR bearing no. DL 1R E ­ 8231 found present there. The witness has deposed that HC Ram Rattan handed over the custody of the accused persons along with Rs.480/­, one mobile phone make Samsung and one knife. Thereafter, Dinesh made his statement to SI Radhey Shyam after which the IO prepared the rukka and got the case SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 17 registered through him (witness). According to the witness, the IO inspected the spot and prepared the site plan and prepared the sketch of the knife after making the measurement of the Knife vide Ex.PW3/A and also took the knife and mobile phone make Samsung in to possession vide memo Ex.PW3/B. The witness has further deposed that the cash amount Rs.480/­ which were in the denomination of 4 notes of 100 and 8 notes of 10 were also sealed with the seal of RS and were seized vide memo Ex.PW3/C which bears his signatures at point C. He has further deposed that the said TSR was also seized vide memo Ex.PW3/F and thereafter all the accused persons were arrested vide memo Ex.PW3/D­1 to Ex.PW3/D­3 personally searched vide memo Ex.PW3/D­4 to Ex.PW3/D­6 and their disclosure statements were recorded vide Ex.PW3/E­1 to Ex.PW3/E­3. Thereafter, he alongwith IO returned to the police station alongwith accused persons and case property. The witness has correctly identified in the court the accused persons as well as the case property i.e. knife Ex.P­1, photographs of the currency notes Ex.P­2; photograph of the mobile phone Ex.P­3, photograph showing the TSR Ex.P­4.

In his cross examination by Ld. Defence Counsel, the witness has deposed that he personally did not make his departure entry in the rozanamacha and has voluntarily added that in routine IO use to make the entries regarding departure or arrival. He has deposed that they went to the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 18 spot in a private car belonging to the IO but he does not remember its number. According to him the search of the accused persons was already conducted by HC Ram Rattan prior to their reaching at the spot who produced the recovered article to the IO. He has deposed that he went to the police station with rukka on foot and also return back on foot. According to him the IO had first recorded the statement of complainant at the spot and same was handed over to him to be taken to the police station for registration of FIR. He has deposed that they reached at K Block Red Light at about 9.10 PM and left for the place of apprehension of accused persons at 9.11 PM. He along with IO reached at the spot at about 10.00PM. The witness has denied the suggestion that no investigation was conducted in his presence and that accused persons have been falsely implicated in this case.

PW7 SI Radhey Shyam has deposed that on 01.06.2011 he was posted at Police Station Subhash Place (earlier Saraswati Vihar) and on that day he was on emergency duty in police station. According to the witness, at about 09.07 PM on receiving DD No. 84B copy of which is Ex.PW7/A, he along with Ct. Tej Pal reached near K Block Red light, near Petrol Pump, Britania Chowk and from there they reached near NSP police booth where HC Ram Rattan, Ct. Dalip, complainant Dinesh and all the three accused and one TSR bearing no. DL 1R E ­ 8231 were found present there. The witness has further deposed that HC Ram Rattan handed over him the custody of the accused persons along with Rs.480/­, one mobile SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 19 phone make Samsung and one knife. He has further deposed that Dinesh made his statement to him and he made his endorsement on his statement vide Ex.PW1/B, prepared the rukka and got the case registered through Ct. Tej Pal. According to the witness, after registration of the case Ct. Tej Pal came to the spot and handed over to him copy of FIR and original rukka and then he inspected the spot and prepared the site plan at the instance of the complainant which copy is Ex.PW7/B. Thereafter, he prepared the sketch of the knife after making the measurement of the same which is Ex.PW3/A. According to the witness, the knife and mobile phone make Samsung were seized vide memo Ex.PW3/B and thereafter Rs.480/­ which were in the denomination of 4 notes of 100 and 8 notes of 10 were sealed with the seal of RS and were seized vide memo Ex.PW3/C. According to the witness, the said TSR was also seized vide memo Ex.PW3/F and thereafter all the accused persons were arrested vide memo Ex.PW3/D­1 to Ex.PW3/D­3, personally searched vide memo Ex.PW3/D­4 to Ex.PW3/D­6 and their disclosure statements were recorded which are Ex.PW3/E­1 to Ex.PW3/E­3. The witness has deposed that thereafter the accused pointed out the place of the incident and pointing out memo in this regard was made which is Ex.PW3/G bearing his signatures at point D and thereafter he along with accused persons and the case property returned to the police station. The witness has deposed that on 16.07.2011 complainant Dinesh Kumar produced the receipt of mobile phone make SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 20 Samsung which is Ex.PW3/H and receipt of the said mobile is Ex.PW3/H­1 and acknowledgment of the papers is Ex.PW3/H­2. The witness has deposed that during the investigation he recorded statements of the witnesses and collected the relevant papers and after completion of investigation the charge sheet was filed before the concerned court.

The witness has correctly identified the case property i.e. knife Ex.P1 as recovered from accused Arif; photographs of the currency notes Ex.P­2; photographs of the mobile phone Ex.P­3, the photographs showing the TSR Ex.P­4. According to the witness, the currency notes were recovered from accused Azim and mobile phone were recovered from accused Arif which articles he identify. He further deposed that the TSR was recovered from the possession of accused Mohd. Noor which photographs which is Ex.P­5 also shows the owner of the TSR who had taken the TSR on superdari which he has identified.

In his cross examination by Ld. Defence Counsel, the witness has deposed that the DD No.84B was handed over to him by the Duty Officer and the said DD entry was recorded on the information received from PCR. According to him they left the police station at about 9.10­9.15PM and firstly reached at K Block petrol pump where they came to know from the Duty officer about the apprehension of the accused persons by HC Ram Rattan at Netaji Subhash Place. According to the witness, some other currency notes were also recovered from accused SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 21 persons on search apart from Rs.480/­. Witness has admitted that there is a big market at Netaji Subhash Place and the roads are very busy and the shopkeepers and other public persons were available there but they did not ask any public person to join the investigation prior to taking search of the accused persons. He has deposed that the complainant already present at the spot prior to his reaching. He has also deposed that there was no specific reason for not sealing the mobile phone. According to the witness, prior to recording of statement of the complainant and sending the same as rukka for registration of FIR, all the facts were in his knowledge about the recovery of articles. He deposed that no finger prints were obtained from the alleged recovered articles i.e. mobile phone, currency notes and knife prior to sealing the same. He has admitted that in the DD No.84B the number of TSR is mentioned as DL 1R 8231 and the amount snatched has been mentioned as Rs.30,000/­. He has also admitted that DD No.84 does not mention the name of the complainant. The witness has denied the suggestion that nothing incriminating was recovered from the accused persons or that the accused persons have been falsely implicated in the present case to work out the present case. He has further denied that no disclosure statement was made by the accused persons or that he had obtained signatures of the accused persons on some blank papers under threat in order to use the same against the accused persons. Statement of Accused and Defence Evidence:

After completing the prosecution evidence, statements of SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 22 accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have has denied. According to the accused they have been falsely implicated in this case and that nothing was recover at their instance or from their possession. However, the accused persons have not examined any witness in defence.

FINDINGS:

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 have perused the written memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the accused persons:

In so far as the identity of accused Mohd. Noor, Mohd. Arif and Mohd. Azim is concerned, they have been specifically named in the FIR which is Ex.PW1/A having being apprehended soon after the incident after the police patrolling party followed them and were able to apprehend them. They have also been identified in the court by the victim Dinesh Kumar. The accused Mohd. Noor has been identified by the victim as the driver of the TSR and the accused Mohd. Arif and Mohd. Nazim as the person who were sitting in the TSR. The victim Dinesh Kumar (PW4) has identified SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 23 the accused Mohd. Arif as the person who put the knife on his neck on right side and snatched his mobile make Samsung (Ex.P3) which mobile was recovered at the time of apprehension of the accused minutes after the incident in the presence of the victim. The victim has proved that the said mobile was purchased by him on 2.11.2010 i.e. eight months prior to the incident which receipt is Ex.PW3/H1 and the brochure is Ex.PW3/H2. The victim Dinesh has identified the accused Azim as the person who took out his Rs. 480/­ from his pocket of shirt which amount had also been recovered from the accused (the currency notes were released to the superdar and the photocopy of the said currency notes are collective Ex.P2).

It has been argued by the Ld. Defence Counsel that no Judicial Test Identification Parade of the accused had been got conducted and the alleged identification of the accused by the victim was at the instance of the local police, and therefore should not be relied upon. I may observe that the incident in question took place on 1.6.2011 at about 8:30 ­ 8:45 PM and soon after the incident while the victim was thrown out of the TSR by the accused persons he (victim) had noted down the last digits of the number of the TSR which number he disclosed to the police officials who were coming in a scooter who thereafter managed to overpower the said TSR and apprehended the accused persons near the Wazirpur Depot after which the victim also reached there and identified all the three accused persons. The apprehension and arrest of the accused having taken soon after the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 24 incident and it was the victim himself who identified them as the assailants and therefore under these circumstances there was no requirement of conducting of the Judicial Test Identification Parade proceedings. This being the background, I hereby hold that the prosecution has been able to prove and establish the identity of all three accused. Allegations against the accused:

The entire case of the prosecution rests upon the statement of the victim PW3 Dinesh Kumar who has been exhaustively cross examined at length by Ld. Defence Counsel wherein he has stood his ground. He has specifically identified the accused Arif and Azim because they were sitting near to him and were the ones who actually assaulted him. He has also identified the accused Mohd. Noor as the one who was driving the TSR and had seen him clearly when he had negotiated with him on fare. The victim has specifically denied the suggestion in his cross examination that he has identified the accused persons on the asking of the police. Here, I may observe that while being thrown out from the TSR he had managed to see the last digits of the TSR which he immediately gave gave to the police officials who were on patrolling duty on the basis of which lead given to them by the victim, the TSR in question was traced within a matter of minutes, a few kilometers away from the spot where the victim was thrown out. The victim has also proved that when he reached the spot where the accused had been apprehended and detained, when on the asking of the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 25 police he (Dinesh) identified all the accused persons as the persons who had committed the incident upon him. The victim Dinesh in his testimony has also explained that while his articles i.e. mobile and cash had been recovered at the spot where the accused were apprehended but the detailed search i.e. personal search of the accused had been taken at the police station. The relevant portion of the examination­in­chief of the PW4 Dinesh Kumar (victim) is as under:

On 01.06.2011 at about 8:30­8:45 PM I was returning from MP Bhawan after completion of my work i.e. white wash. After taking the bus from Karol Bagh I had alighted at Punjabi Bagh power house. At Punjabi Bagh Power house I took lift in auto No. 8231 in which two persons were already in the auto apart from the driver of the auto. At this stage witness has correctly identified the accused Noor by pointing out towards the accused in the court as the person who was driving the auto, the accused Arif and Azim as the persons who were sitting in the TSR (by pointing out towards them correctly).

I requested the driver of the TSR to give me lift as per the fare to the Shakurpur to which he agreed.

When we reached at Britannia bridge, accused Arif put a knife on my neck on right side and snatched my mobile SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 26 phone make SAMSUNG. Accused Azim took out my Rs 480/­ from my pocket of the shirt.

When we reached near petrol pump on Britania bridge accused persons threw me out from the TSR. When I was thrown by the accused persons from the TSR I noted down the last digit number of the TSR and I noticed two police officials on the scooter and I told them about the incident happened with me. Those police officials chased the said TSR and ultimately both the police officials apprehended the said TSR along with the accused persons near the Wazirpur depot. I also reached there and I identified the accused persons where my statement was recorded. Same is EX PW 4/A bearing my signatures at point A. When the search of the accused Arif was carried out, from his possession a knife and my mobile phone were already recovered by the police officials. I identified my mobile phone and knife on the point of which I was robbed.

It is evident from the aforesaid that Firstly the complainant/ victim Dinesh Kumar is a resident of Shakurpur and not previously known to the accused.

Secondly in his testimony before the Court he has specifically SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 27 stated that on 1.6.2011 at about 8:30 - 8:45 PM when the incident took place, he was returning from MP Bhawan after completing the work of white­wash. According to him, he took a bus from Chanakya Puri to India Gate and from India Gate till Karol Bagh from where he took a bus till Punjabi Bagh Power House and alighted at Punjabi Bagh. He has further stated that from Punjabi Bagh he took a lift in the TSR in question last digits of which were 8231 which he could noted down after he was thrown out by the accused.

Thirdly the victim has explained that the incident had taken place near Britania Bridge i.e. after they came down from the flyover while they were still inside the TSR which had come down from Britania Flyover towards the chowk/ crossing and it was the accused Mohd. Noor who was driving the TSR whereas Arif and Azim were sitting in the TSR on the back side and it was the accused Arif who put a knife on his neck and snatched his mobile phone whereas accused Azim took out Rs.480/­ from the pocket of his shirt.

Fourthly the victim has categorically identified the place where he was thrown out from the TSR after the same was slowed down by the accused Mohd. Noor i.e. near the petrol pump from where he could manage to note the last digits of the TSR.

Fifthly the victim has thereafter stated that within five minutes of the incident he noticed that two police officials coming on a two wheeler scooter to whom he had told about this incident and also gave them the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 28 number of the TSR and the direction in which the TSR had gone on which the police officials went towards the said direction. He has further proved that the police officials who were on two wheeler scooter, managed to overpower the TSR and when he reached the spot, he identified all the three accused and from the search of accused Arif, his mobile phone and the knife which was shown to him was recovered whereas from the search of accused Azim, Rs.840/­ which were robbed from the victim, were recovered. The above statement of victim Dinesh Kumar (PW4) finds due corroboration from the testimony of HC Ram Rattan (PW3) who was on patrolling duty with Ct. Dalip and has specifically corroborated the testimony of the victim to the extent that when he reached near petrol pump the victim Dinesh Kumar met him and informed about the incident and also gave him the last digits of the TSR on the basis of which they went towards the direction where the TSR had gone and could manage to overpower the TSR near Wazirpur Depot Official Gate. A Judicial note can be taken of this fact that Britania flyover, Shakurpur Petrol Pump and the Wazirpur Depot are falling on the same route/ road and there is a distance of hardly five to ten minutes between two places if the traffic is average. A further note can be taken of the fact that the traffic on the Ring Road at the time of the incident would be at its peak when the entries of the heavy vehicles start on the Ring Road after 9:00 PM.

Sixthly the victim Dinesh Kumar (PW4) has also proved that he went to Wazirpur Depot in a different vehicle along with police officials. SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 29 This aspect stands duly established from the testimony of Ct. Tej Pal (PW6) and ASI Radhey Shyam (PW7) who have proved that on receiving the information at about 9:07 PM regarding the incident in question where they found the complainant Dinesh Kumar who had identified all the three accused.

Seventhly the Ld. Defence counsel has tried to demolish the testimony of the victim on the ground that the victim could not have seen Mohd. Noor who was driving the TSR as Mohd. Noor was having his back towards the victim being the driver of the TSR. In this regard the victim has specifically stated that at Punjabi Bagh from where he took the TSR he had negotiated with the driver of the TSR and there was sufficient light in the area due to which reason he was in a position to identify the accused Mohd. Noor. Even otherwise there can be no dispute on the identity of the accused since all the three accused were apprehended while they were still in the TSR and identified by the victim at the spot itself and more so since the articles robbed from the complainant were recovered from their possession which includes the knife was used by accused Arif in committing the robbery.

Lastly the fact that the DD No. 84­B mentions the number of the TSR as DL­1R­8231 and the amount robbed as Rs.30,000/­ are of no consequence since the victim has already explained that he could manage to note down only the last digits of the TSR. Even otherwise, the amount which has been mentioned in the DD is not relevant and it is what was told SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 30 by the victim to the police and in the Court which is most relevant. The first information being sent through telephone/ wireless the possibility of the wrong noting of the amount cannot be ruled out and I hold that this will not fatal to the case of the prosecution.

This being the background I hereby hold that the sequence of events stand established and the allegations made against all the accused i.e. Mohd. Noor, Arif and Azim stands established and proved. Recovery of the weapon of offence and stolen articles:

The case of the prosecution is that the victim Dinesh Kumar had boarded the TSR as per the agreed fare from Ring Road Punjabi Bagh for going towards Shakurpur which TSR was being driven by the accused Mohd. Noor whereas the accused Mohd. Arif and Mohd. Azim were also sitting in the TSR. When the TSR reached at Britania flyover the accused Arif put the knife on the neck of victim and snatched his mobile while accused Azim caught hold of the victim and took out Rs.480/­ from the pocket of his shirt and thereafter the victim requested the accused to at least return the SIM of the mobile, which they did and the victim was thrown out of the TSR by the accused near the Britania flyover but in the meanwhile the victim could note down the last digits of the TSR. Thereafter, he noticed two police officials coming on the scooter on which he told the number of TSR to those police officials who managed to stop the TSR near Wazirpur Depot, while in the meanwhile the victim also reached there SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 31 along with other police officials and identified the accused as the same persons who had committed the incident with him at the Britania Flyover. The mobile phone and the currency notes so robbed from the victim were recovered from the accused at the place of their apprehension itself. Further, the knife used at the time of the commission of the offence was also recovered from the accused at the spot of apprehension. The apprehension of the accused persons at Wazirpur Depot has been duly proved by PW3 HC Ram Rattan who has deposed that he along with Ct. Dalip was on patrolling duty with regard to checking of vehicles at F Block, Red Light and at about 8:30 PM the victim Dinesh came to him and informed them that he was robbed by the assailants while travelling in the TSR No. DL 1R E 8231 after which he left the complainant at the spot where they were checking the vehicles and he himself along with Ct. Dalip rushed towards the directions of the TSR in his scooter and when they reached near the police booth Subhash Place, they noticed the said TSR and overpowered the same. PW3 HC Ram Rattan has further proved that after apprehension of the accused, they called the local police regarding the incident after which the Investigating Officer SI Radhey Shyam along with Ct. Tej Pal came to the spot i.e. police booth. He has also proved that the knife recovered from the accused Mohd. Arif and on its measurement its length was found to be 27 cm, the blade was 16.5 cm and also the mobile phone make Samsung 3310 belonging to the complainant Dinesh. The sketch of the knife Ex.PW3/A was prepared and both the knife and the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 32 mobile phone were seized vide seizure memo Ex.PW3/B. According to PW3 HC Ram Rattan from personal search of accused Mohd. Azim Rs. 480/­ in the denomination of four currency notes of Rs.100 and eight notes of Rs.10 each, which were duly seized vide memo Ex.PW3/B. Apprehension and Arrest of the Accused:

The apprehension and arrest of the accused vide memos Ex.PW3/D1 to Ex.PW3/D3 and their personal search vide memo Ex.PW3/D4 to Ex.PW3/D6 has been duly proved by PW3 HC Ram Rattan which found due corroboration from the testimonies of PW6 Ct. Tej Pal and PW6 SI Radhey Shyam. It also stands established that after the accused were duly interrogated they made their disclosure statements vide memos Ex.PW3/E1 to Ex.PW3/E3. All the police witnesses i.e. PW3 HC Ram Rattan, PW6 Ct. Tej Pal and PW7 SI Radhey Shyam, have corroborated each other on the aforesaid aspect and no material contradictions have been observed in their testimonies on the above. I may further observe that the apprehension of the accused persons was possible within minutes of the incident because the victim/ complainant had remembered the details of the last digits of the TSR number which he gave to HC Ram Rattan and Ct. Dalip coming on a scooter who went in the direction in which the TSR had gone and could manage to overpower the accused and soon the victim also reached the spot and identified all of them and even recovered the cash and mobile robbed by them from the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 33 complainant and also the knife used by them.

The Ld. Defence counsel has vehemently argued that no proceedings had taken place at the spot and the victim himself in his cross­ examination stated that no papers were got signed by him at the spot and all the proceedings took place in the Police Station. In this regard, I may observe that the accused Mohd. Arif was arrested at 10:30 PM, the accused Mohd. Azim was arrested at 10:45 PM and the accused Mohd. Noor was arrested at 11:00 PM and their arrest memos also bear the signatures of their family members reflecting their presence at the time of the arrest of the accused. The victim Dinesh Kumar is a layman and the possibility of his having referred the Police Booth as Police Station cannot be ruled out. Even otherwise, one the accused had been apprehended within minutes of the incident and duly identified by the victim then it becomes immaterial whether they were formally arrested and documentation was done at the Police Booth or at Wazirpur Depot.

Common Intention:

Now, it has to be seen whether Section 34 Indian Penal Code is attracted or not. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 34 perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre­arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 35 leading to the doing of a criminal act in furtherance of such intention. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.

Applying the settled principles of law to the facts of the present case it is evident that there is ample material on record to prove that all the accused persons shared common intention. It is evident that at the time of the incident all the three accused were coming in the same TSR. Accused Mohd. Noor was the driver of the TSR while accused Mohd. Arif and Mohd. Azim were sitting on the back seat. Thereafter when the TSR reached near the Britania chowk while coming down from the flyover, the accused Arif and Azim robbed the victim Dinesh Kumar on the point of knife. It is impossible that Mohd. Noor would not have been aware of the same because he was the one who was driving the TSR and slowed down the same after which the victim was thrown off from the TSR. Had Mohd. Noor not been involved he would have either informed the police of it or would have helped the victim which he did not do. It is writ large from the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 36 fact that while the victim was being robbed by accused Mohd. Arif and Mohd. Azim, the accused Mohd. Noor made no efforts to intervene, rather he kept on driving the TSR at slow speed and thereafter victim was pushed out of the TSR by the accused Mohd. Arif and Azim who were sitting on the back seat of the TSR. The manner in which the offence has been committed proves the common intention attributed to all the three accused persons.

No history of animosity between the victim and the accused:

It is writ large from the record that there is no history of any kind of dispute between the victim / complainant and the accused persons nor it is the defence of the accused that they were known to the victim prior to the incident. Under these circumstances, there is no reason for the victim to have falsely implicated the accused and the argument raised by the Ld. Defence Counsel regarding false implication of the accused by the victim at the instance of the police, does not hold any merit. Contradictions and discrepancies:

Ld. Defence Counsel has pointed out the various discrepancies and contradictions in the testimonies of the various witnesses. It is argued that as per the testimony of the Investigating Officer and other police officials all the writing work was done at the spot where they remained upto 12:30 PM and the statement of the victim was recorded at the spot itself on the basis of which a rukka was sent for registration of FIR who SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 37 returned back with the FIR and it was only thereafter that the sketch of the alleged recovered knife and seizure memo of recovered money was prepared whereas on the other hand the victim has deposed that they remained at the spot for only about ten to fifteen minutes. It is further pointed out that the complainant has specifically deposed that the sealing of the alleged recovered articles did not take place in his present and the search of accused persons had taken place at the police where his statement was also record. It is argued that according to the complainant the the Investigating Officer of the case met him where he reported the matter to HC Ram Rattan (PW3) and he reached the spot in the car of the Investigating Officer whereas the Investigating Officer and other witnesses have deposed that the complainant came to the spot on his foot later on. Ld. Counsel has argued that the Investigating Officer of the present case only sealed the alleged recovered currency notes without any identity and their numbers in the seizure memo and did not seal the mobile phone for which no justified explanation has been given by the Investigating Officer. It has also been pointed out that the Investigating Officer has stated that the seizure memos were prepared at the spot and the complainant witnessed the same at the spot whereas according to the complainant police had obtained his signatures on some papers contents of which were not read over to him and has clarified that no papers were got signed from him at the spot.

I have considered the submissions made before me. Before proceeding to discuss the same on merits. I may observe that the Hon'ble SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 38 Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.

(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 39 person to person.

(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.

(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­ examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.

Applying these settled principles of law to the facts of the present case it is evident that the complainant Dinesh Kumar the victim of incident of robbery was taken by surprise on the incident and the possibility of his being overtaken by the events which he could not have anticipated cannot be ruled out. There was an element of surprise and naturally under these circumstances the mental faculties cannot be expected to be attuned to absorb the details. By and large the victim who is basically a labour involving into manual work, was returning home at the end of the day and being tired cannot be expected to possess a photographic memory to recall the details of the incident. Further, the power of observation differs from person to person and hence, there is a possibility of what may be noticed by SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 40 the victim is different to what had been noticed by the other members of the police party and therefore, the natural variances and discrepancies as highlighted by the Ld. Defence Counsel herein above with regard to the manner in which the witness reached the spot or the number of currency notes or the place the documentation took place, will not fatal to the case of the prosecution.

The Ld. Defence Counsel has also pointed out that the bill/ receipt of the mobile phone is not in the name of the complainant/ victim Dinesh Kumar and in his cross­examination the complainant has stated that the SIM had been returned to him by the accused on his request after snatching the mobile phone whereas there is no such averment in the FIR. In this regard I may observe that no such question appeared to have been put to the victim by the Investigating Officer or else he would have disclosed this fact regarding the SIM being returned to him by the accused. Further, merely because the name of the victim is not mentioned in the purchase bill will not adversely affect the prosecution case one it is proved that the bill/ receipt was produced by the victim and the details of the stolen property tally with the details mentioned in the receipt. The relevant aspect before this Court is the aspect of robbery and there is a valid explanation forthcoming from the victim who has explained that the SIM of the mobile phone was returned to him by the accused after they had committed robbery upon him. These aspects so highlighted by the Ld. Defence Counsel will not fatal the case of the prosecution.

SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 41 It is also argued by the Ld. Defence Counsel that the accused Mohd. Noor was not the owner of the TSR in question and the owner of the said vehicle has not stated that the accused was in possession of the same on the date of incident. In this regard I may observe that it is not relevant as to who is the owner of the said TSR and to whom the owner had given the said TSR. What is important is who was driving the TSR at the time of the incident and the complainant in the present case has duly identified the accused Mohd. Noor as the person who was driving the TSR and hence the question of ownership becomes irrelevant.

FINAL CONCLUSION:

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 other hypothesis SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 42 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.

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. It stands established that the complainant/ victim Dinesh Kumar is a resident of Shakurpur and was not previously known to the accused. It has also been established that on 1.6.2011 Dinesh Kumar was returning from MP Bhawan after completing the work of white­wash and took a bus from Chanakya Puri to India Gate and from India Gate till Karol Bagh from where he took a bus till Punjabi Bagh Power House and alighted at Punjabi Bagh. It stands established that from Punjabi Bagh he took a lift in the TSR in which two persons were already sitting and when the TSR reached near Britania crossing i.e. after SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 43 they came down from the flyover while they were still inside the TSR which had come down from Britania Flyover towards the chowk/ crossing, the two persons who were already sitting in the TSR snatched his mobile phone make Samsung and Rs.480/­ on the point of knife. It also stands established that thereafter the victim was thrown out from the TSR after the same was slowed down by the accused Mohd. Noor near the petrol pump from where the victim could manage to note the last digits of the TSR. It is further established that the victim made a PCR call and in the meanwhile he notice two police officials i.e. HC ram Rattan and Ct. Dalip coming on a two wheeler scooter to whom he had told about the incident and also gave them the number of the TSR and the direction in which the TSR had gone. It stands established and proved that the police officials went towards the direction in which the victim pointed out to them and near the Wazirpur Depot they were able to locate the said TSR, which they stopped and overpowered the persons sitting over there. It has also been established that in the meanwhile the victim reached the spot along with local police who had also reached the place pursuant to the PCR call and the victim Dinesh immediately identified the three accused as the same persons who had committed robbery upon him. It further stands established that from the search of accused Arif, the mobile phone belonging to the complainant and the knife which was shown to him was recovered whereas from the search of accused Azim, Rs.840/­ which were robbed from the victim, were recovered. The victim has duly identified the accused Mohd. Noor as the SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 44 driver of the said TSR; the accused Mohd. Arif as the person who has put the knife on his neck and robbed his mobile phone and the accused Mohd. Azim as the person who took out Rs.480/­ from the pocket of his shirt. It has also been established that while the victim was being robbed by accused Mohd. Arif and Mohd. Azim, the accused Mohd. Noor made no efforts to intervene, rather he kept on driving the TSR at slow speed and thereafter victim was pushed out of the TSR by the accused Mohd. Arif and Azim who were sitting on the back seat of the TSR. Therefore the manner in which the offence has been committed proves the common intention attributed to all the three accused persons.

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, seizure memos etc. 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 circumstantial evidence and the witnesses of the prosecution have been able to built up a continuous link.

In view of my aforesaid discussion, I hereby hold that the prosecution has been able to prove and substantiate the allegations against SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 45 the accused and hence, I hereby hold that the accused Mohd. Noor and Mohd. Azim guilty for the offence under Sections 392 read with Section 34 Indian Penal Code and accordingly convicted. Further, the accused Mohd. Arif is also held guilty for the offence under Sections 392 read with 397/34 Indian Penal Code and accordingly convicted.

Case be listed for arguments on sentence on 13.1.2012.

Announced in the open court                                 (Dr. KAMINI LAU)
Dated: 9.1.2012                                           ASJ (NW)­II: ROHINI




SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor                Page 46

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­ II (NORTH­WEST): ROHINI COURTS: DELHI Sessions Case No. 46/2011 Unique Case ID: 02404R0191302011 State Vs. 1. Mohd. Noor S/o Mohd. Saleem R/o Jhuggi No. 357 Rakhi Market, Zakhira, Delhi.

(Convicted)

2. Azim S/o Jamil R/o Jhuggi No. M/95/6 Shahjada Bagh, Inderlok, Delhi.

(Convicted)

3. Mohd. Arif S/o Mohd. Hanif R/o Jhuggi No. M/95/231 Inderlok, Delhi.

                                            (Convicted)

FIR No.:                     216/2011
Under Section:               392/397/34 Indian penal Code.
Police Station:              Saraswati Vihar


Date of conviction:          9.1.2012

Arguments heard on: 13.1.2012

Date of sentence:            20.1.2012

SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor       Page 47
 APPEARANCE:

Present:      Sh. Taufique Ahmed, Addl. Public Prosecutor for the 

              State.

              All the three convicts in judicial custody.


ORDER ON SENTENCE:

Vide my detailed judgment dated 9.1.2012 the accused Mohd. Noor and Mohd. Azim have been held guilty for the offence under Sections 392 read with Section 34 Indian Penal Code and the accused Mohd. Arif has also been held guilty for the offence under Sections 392 read with 397/34 Indian Penal Code.

The case of the prosecution is that the complainant/ victim Dinesh Kumar is a resident of Shakurpur and was not previously known to the accused. On 1.6.2011 Dinesh Kumar was returning from MP Bhawan after completing the work of white­wash and took a bus from Chanakya Puri to India Gate and from India Gate till Karol Bagh from where he took a bus till Punjabi Bagh Power House and alighted at Punjabi Bagh. From Punjabi Bagh he (Dinesh Kumar) took a lift in the TSR in which two persons were already sitting and when the TSR reached near Britania crossing i.e. after they came down from the flyover while they were still inside the TSR which had come down from Britania Flyover towards the chowk/ crossing, the two persons who were already sitting in the TSR snatched his mobile phone make Samsung and Rs.480/­ on the point of SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 48 knife. Thereafter the victim was thrown out from the TSR after the same was slowed down by the accused Mohd. Noor near the petrol pump from where the victim could manage to note the last digits of the TSR. The victim made a PCR call and in the meanwhile he noticed two police officials i.e. HC ram Rattan and Ct. Dalip coming on a two wheeler scooter to whom he informed about the incident and also gave them the number of the TSR and the direction in which the TSR had gone. The police officials went towards the direction in which the victim pointed out to them and near the Wazirpur Depot they were able to locate the said TSR, which they stopped and they, thereafter overpowered the persons sitting over there. In the meanwhile the victim also reached the spot along with local police who had also reached the place pursuant to the PCR call and the victim Dinesh immediately identified the three accused as the same persons who had committed robbery upon him. From the search of accused Arif, the mobile phone belonging to the complainant and the knife which was shown to him was recovered whereas from the search of accused Azim, Rs.840/­ which were robbed from the victim, were recovered.

The victim Dinesh Kumar has appeared in the Court and duly identified the accused Mohd. Noor as the driver of the said TSR; the accused Mohd. Arif as the person who has put the knife on his neck and robbed his mobile phone and the accused Mohd. Azim as the person who took out Rs.480/­ from the pocket of his shirt. On the basis of the testimonies of the various witnesses examined by the prosecution including SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 49 the victim Dinesh Kumar and HC Ram Rattan, this Court has held the accused Mohd. Noor and Mohd. Azim guilty for the offence under Sections 392 read with Section 34 Indian Penal Code and accordingly convicted. Further, the accused Mohd. Arif has held guilty for the offence under Sections 392 read with 397/34 Indian Penal Code and accordingly convicted.

Heard arguments on the point of sentence. The convict Mohd. Noor aged about 38 years is totally illiterate and is a auto rickshaw driver. He has a family comprising of two brothers, three sisters, wife, two sons and three daughters. He is a first time offender and is not involved in any other case. He has already remained in judicial custody for about 7 months and 18 days. The convict Mohd. Azim a young boy of 19 years is totally illiterate and is a labour by profession. He has a family comprising of father, mother, three married sisters, two brothers, wife and one four months old daughter. He is a first time offender and is not involved in any other case. He has already remained in judicial custody for about 7 months and 18 days. The convict Mohd. Arif aged about 27 years is totally illiterate and is a labour by profession. He has a family comprising of two brothers, two sisters, wife, two daughters and one son. He is a first time offender and is not involved in any other case. He has already remained in judicial custody for about 7 months and 18 days.

SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 50 The Ld. Counsels for the convicts have vehemently argued that all the convicts are not involved in any other criminal case and are first time offenders. It is pointed out that the convicts are the helping hands of their respective families and there is nobody to look after their wives and children since the other family members are residing separately. It is requested that keeping in view the family background of the convicts, a lenient view be taken against them. On the other hand the Ld. Addl. Public Prosecutor for the State has prayed that a strict punishment be awarded to the convicts keeping in view the allegations involved.

I have considered the rival contentions. The punishment prescribed for the offence under Section 392 Indian Penal Code is rigorous imprisonment for a term which may extent to ten years and fine and for the offence under Section 397 Indian Penal Code is imprisonment for not less than seven years. All the three convicts are first time offenders and are not involved in any other case. They are the helping hands of their respective families and have no criminal background. Therefore, under these circumstances a lenient view is taken against them and I hereby award the following sentences to them.

The convict Mohd. Noor is sentenced to Rigorous Imprisonment for a period of three years and fine to the tune of Rs. 2,000/­ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 51 period of 15 days.

The convict Mohd. Azim is sentenced to Rigorous Imprisonment for a period of three years and fine to the tune of Rs. 2,000/­ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.

The convict Mohd. Arif is sentenced to Rigorous Imprisonment for a period of seven years and fine to the tune of Rs. 2,000/­ for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.

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.

The convicts are 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.

One copy of the judgment and order on sentence be given to the convicts free of costs and order on sentence be attached with their jail SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor Page 52 warrants.

File be consigned to Record Room.

Announced in the open court                                (Dr. KAMINI LAU)
Dated: 20.1.2012                                          ASJ (NW)­II: ROHINI




SC No. 46/11, FIR No. 216/11, PS Saraswati Vihar, St. Vs. Mohd. Noor                Page 53