Delhi District Court
State vs : Ajij on 9 July, 2020
IN THE COURT OF MS. SWARANA KANTA SHARMA
DISTRICT & SESSIONS JUDGE, NORTH DISTRICT
ROHINI COURTS, DELHI
Sessions Case No. 601/2017
State versus : Ajij
S/o Anwar
R/o H.No. 20, Nehru Enclave,
Thapa Wali Gali,
Village Alipur, Delhi.
FIR No. : 327/2017
Police Station : Model Town
u/Section : 392/397/411/34 IPC
Date of institution : 10.10.2017
Date of arguments : 06.03.2020
Date of Pronouncement : 09.07.2020
Appearance:
Ms. Neeta Gupta, Ld. Chief Prosecutor for the State.
JUDGMENT :
The SHO of Police Station Model Town has filed charge sheet against accused Ajij and Vishal @ Bhindi after completion of investigation in the court of Ld. Metropolitan Magistrate for their trial for committing offence under Sections 392/397/411/34 IPC. After compliance of provisions of the Section 207 Cr.P.C., learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr.P.C. for trial of the accused persons. During the course of the trial, chargesheet against coaccused Vishal @ SC No. 601/17 State v. Ajij Page 1 of 27 Bhindi was separated from the present proceedings since he was declared juvenile.
2. Brief facts of the case are that on 20.08.2017 at about 12 midnight, in front of Chhatrasaal Stadium, Service Road, towards road leading to Azadpur side, Delhi, within the jurisdiction of PS Model Town, accused Ajij in furtherance of his common intention with his coaccused Vishal @ Bhindi, had committed robbery of mobile phone make Nokia (orange colour) of Lalit Singh, wrist watch Sekonda, mobile phone wire and Rs.320/ from the person of Lalit Singh. On the same date, time and place, accused Ajij was found in possession of robbed broken Sekonda watch and white colour wire of mobile phone knowing or having reason to believe that such articles were robbed.
3. Arguments on charge were heard by the Ld. Predecessor of this Court and prima facie case for offence punishable under Section 392/411/34 IPC was made out against accused Ajij. Accordingly, charge was framed against accused on 08.11.2017 by the Ld. Predecessor of this Court. Accused Ajij pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined six witnesses. PW2 Lalit Singh (complainant) is the star witness of the prosecution.
SC No. 601/17 State v. Ajij Page 2 of 275. PW1 ASI Bhagwan Singh is the Duty Officer who deposed that on 20.08.2017 at about 12:15 AM, he had received an information regarding quarrel taking place near Chhatrasal Stadium. He had entered the information in DD Register vide DD No. 3A and proved the same as Ex. PW1/A. He stated that on that day at about 5:50 AM, he had received rukka from HC Abdul at the police station, on the basis of which, he had recorded formal FIR No. 327/17 under Section 392/397/411/34 IPC. He proved the FIR as Ex. PW1/B; endorsement on the rukka as Ex. PW1/C; certificate under Section 65B of Indian Evidence Act as Ex. PW1/D.
6. PW2 Lalit Singh is the complainant and star witness of the prosecution who has deposed that on 19.08.2017 at about 12 midnight, he was going to his house at E3/201B, Shivram Park, Nangloi, Delhi from the house of his brotherinlaw Sh. Bahadur Singh. At that time, he was present at the Bus Stop near Metro Station and was waiting for bus or auto rickshaw. Two persons had come on a motorcycle and had asked him about way leading to Gurgaon. The witness identified both the accused persons in the court. He had told them to take left turn from the chowk. He had also told them that he could not find the conveyance for going to his home and had asked them whether they could drop him at some distance ahead. Both the accused persons had made him sit in the middle seat of the bike. Accused persons had taken him on SC No. 601/17 State v. Ajij Page 3 of 27 motorcycle and had driven for a distance of 500 meters. It was dark and the driver of the motorcycle had told him that they would smoke Bidi and had stopped the motorcycle.
7. PW2 further stated that they all had got down from the motorcycle and the driver of the motorcycle Vishal @ Bhindi had put his hand in his pocket on the pretext of taking out Bidi, but he had taken out knife from his pocket and had put the same on the neck of PW2. Accused Vishal had misbehaved with him and had asked him to raise his hand. The second accused had taken out his purse from the pocket of his pant. He was having cash of Rs.320/ in the denomination of three currency notes of Rs.100/ and one currency note of Rs.20/. The second accused had also taken out lead of his mobile phone and his watch make Skonda from his wrist by snatching it. Accused Vishal @ Bhindi had taken cash of Rs.320/ and mobile phone make Nokia having pink colour cover from the pocket of his pant.
8. PW2 further stated that accused Vishal had stated "Ek do chaaku maar", however, in order to save himself, he had caught hold the hand of accused Vishal in which he was holding knife and had made hue and cry. 34 persons had come in an Alto car there and he told them that accused persons had snatched his articles. In the meanwhile, accused Vishal had run away on his motorcycle after taking his mobile phone and cash of Rs. 320/, but he had kept on SC No. 601/17 State v. Ajij Page 4 of 27 holding second accused. Public persons had started gathering at the spot. Someone from the public had made a call at 100 number. PCR van had come there and they had taken him and the second accused to Police Station Model Town.
9. PW2 further stated that before making the call to the police, the public persons had asked him as to how they could believe his version and he had told them that his purse was with second accused. The public persons had taken the search of second accused and had taken out his purse. They had checked it and had found his driving license and then had believed his version. The public persons had handed over the purse to him and thereafter, they had made a call at 100 number. The purse contained his driving license and some cash which he had not counted at that time. Police had recovered his watch without strap which had broken at the time of snatching and earphone of mobile phone from second accused. Police had interrogated the second accused and he had disclosed the address of accused Vishal.
10. PW2 further stated that thereafter, the police had taken him and accused Ajij to the house of accused Vishal @ Bhindi and he had found motorcycle of accused persons, last digit of which was 4191. He had seen the number of the motorcycle at the time of incident, therefore, he remembered the last digit of the same. Accused Vishal was sleeping in his house at that time and his phone SC No. 601/17 State v. Ajij Page 5 of 27 was kept on the table in his house. He had identified his mobile phone. He had also identified accused Vishal @ Bhindi. Police had apprehended accused Vishal and had taken all of them to police station Model Town. His statement was recorded by the police in the police station which he proved as Ex. PW2/A. Police had seized the Sekonda watch and earphone vide seizure memo Ex. PW2/B. He stated that police had seized his mobile phone vide memo Ex. PW2/C. Police had also brought the motorcycle from the house of accused to police station Model Town. Police had seized the motorcycle vide memo Ex. PW2/D. Police had also taken him to the place of incident and police had prepared the site plan of place of incident. Police had arrested both the accused persons vide arrest memos Ex. PW2/E and Ex. PW2/F and had conducted their personal search vide memos Ex. PW2/G and Ex. PW2/H. He proved the site plan as Ex. PW2/J.
11. PW2 further stated that the police had also recovered one blade type knife from the possession of second accused in the police station when his earphone and watch were recovered from his possession. He did not remember the address of house of accused Vishal as he could not properly see the house of accused Vishal as he was sitting in police vehicle. He proved the seizure memo of blade type knife as Ex. PW2/K. On search of accused Vishal in his house, police had recovered cash amount of Rs.320/ and had seized the cash amount of Rs.320/ vide seizure memo Ex. PW2/L. SC No. 601/17 State v. Ajij Page 6 of 27 He identified the blade used by accused Vishal, who was riding the motorcycle at the time of robbery and proved the same as Ex. P1. He has identified the currency in the sum of Rs.320/ and proved the same as Ex. P2. He has identified his mobile phone, dial of watch and earphone and proved the same as Ex. P3, Ex. P4 and Ex. P5. He did not identify the keys of motorcycle. However, the same has been exhibited as Ex. P6 for identification purpose. He identified the motorcycle of blue colour bearing no. DL10SE9181 and proved the same as Ex. P7.
12. PW2 further stated that he had reached the house of his brotherinlaw at Model Town at about 8.00 PM on 19.08.2017 and had left for his house at 11.45 PM. At the time of incident, he was standing at the bus stop near Model Town Metro Station. The colour of back cover of his mobile phone was orange but in confusion he had disclosed the colour as Pink. When accused Vishal had stated that "Isko Chaaku Mar", then he had scuffled to save himself and in that process knife was fell down from the hand of accused Vishal. He stated that he has no bill of stolen articles, therefore, he cannot produce the same.
13. The witness was declared hostile by Ld. Additional Public Prosecutor for the State as the witness has given contradictory statement on some points. On being crossexamined by Ld. Addl. PP for the State, PW2 denied that he had given the SC No. 601/17 State v. Ajij Page 7 of 27 statement to the police that his watch, mobile lead and knife were recovered from accused Ajij before coming of PCR at the spot or that he had handed over the watch, earphone and knife to the Investigating Officer in the police station. He voluntarily stated that he had kept holding accused Ajij and had made hue and cry and public persons had gathered there and that they had made a call at 100 number and that PCR had come there and that the PCR officials had recovered his watch without strap and earphone from the possession of accused Ajij and that the police officials had lifted the knife from the ground. He was using SIM of Idea company in the mobile which was robbed and he did not hand over his purse to the police.
14. On being crossexamined by Sh. Kashmir Singh, Ld. Counsel for accused Ajij, PW2 deposed that he did not remember the date and the name of the person from whom he had purchased the watch but he had purchased it for Rs.1200/. About 15 months have passed since the purchase of the watch. He did not take any receipt regarding the purchase of watch. He had purchased second hand watch. He had not demanded any bill of watch from the seller. He did not note down the name, address and mobile number of the seller of watch. He had purchased it for Rs.1200/ and this fact was not disclosed to the investigating officer by him. He voluntarily stated that investigating officer had not asked the same to him. The watch had brown colour strap at the time of snatching. The strap had fallen SC No. 601/17 State v. Ajij Page 8 of 27 down on the ground after breaking from the watch when his watch was snatched by the accused. He could not tell whether the strap was of rexine or of leather. The strap was not plain.
15. PW2 further deposed that he did not sustain any injury or scratch mark due to snatching of watch on his hand. He had signed all the seizure memos in the police station. He had not read those documents before signing. He had purchased the earphone from Patriwala at Peera Garhi Chowk for Rs.50/.
16. PW2 further deposed that 34 other public persons were also present at the bus stop when he was waiting for the bus or auto rickshaw. He had not seen helmet on the head of accused persons. He had not asked accused persons to allow him to sit on the last seat of the motorcycle. He denied that accused persons had not given him any lift on the day of incident, therefore, he had not asked them to allow him to sit on the last seat. He denied that the accused persons had not asked him the way leading towards Gurgaon. He had not sustained any injury on his neck due to keeping of knife. His Tshirt was little bit torn from the neck during scuffle. Police did not seize his Tshirt. The accused had run away after leaving the knife at the place of incident. 3/4 public persons had come in Alto Car from the side of Model Town towards Azadpur.
17. PW2 further deposed that the PCR had come within one SC No. 601/17 State v. Ajij Page 9 of 27 or two minutes after making a call at 100 number. Many other vehicles had also stopped at the spot after the incident had taken place. He did not know whether any police official from the police station had come there besides the PCR van. No public person had gone to the police station with them. The caller had told the PCR officials about him and the accused. He did not know whether any statement of the caller was recorded by PCR officials or not. He did not know whether PCR officials had noted down the name and address of said caller or not. The second accused had run away after Alto Car and other vehicles had stopped. He did not ask the passengers of Alto Car and other vehicles to chase the second accused and to apprehend him. The public persons did not dare to chase the second accused. He voluntarily stated that the second accused had run away on motorcycle towards the wrong side. He did not hand over his purse to the PCR officials. 34 persons had taken the search of accused and they had taken out his purse and had found his driving license. He did not know whether police officials had recorded the statement of those public persons or not. He also did not know whether police officials had noted down the names and address of said public persons or had obtained their signatures on seizure memos or not.
18. PW2 further deposed that accused Vishal did not hit him with knife when he had caught his hand in which he was holding knife in order to flee from the spot. He denied that no such incident SC No. 601/17 State v. Ajij Page 10 of 27 had taken place and due to this, accused Vishal did not hit him with knife. He did not try to stop accused Vishal and did not throw anything at him. He denied that no such incident had taken place, therefore, he did not try to stop accused Vishal. He voluntarily stated that there were two accused persons, however, he could apprehend only one person.
19. PW2 further deposed that he had remained in the police station till 10.0011.00 AM and had signed all the documents there. He had signed his statement Ex. PW2/A at point A and B without going through the same as police had explained the statement to him. Police had taken him in the morning to the place of incident and there was light at that time. Police had prepared the site plan Ex. PW2/J at his instance at the spot itself. SI Ompal did not accompany him to the place of incident for preparing the site plan. He admitted that sketch of knife Mark DX does not bear his signatures. PCR officials had lifted the knife with the help of handkerchief from the spot. He did not hand over the purse to local police in the police station. He did not tell the Investigating Officer regarding snatching of his purse by accused persons or recovery of purse from accused by the public persons or handing over of purse by public persons to him.
20. He did not know as to how many documents were signed by him at the instance of Investigating Officer and even he SC No. 601/17 State v. Ajij Page 11 of 27 cannot tell the approximate number of documents signed by him. All the documents were filled up when he had signed the same in police station. He did not read those documents and he did not know as to what was written in those documents. He had signed the documents as per instructions of the Investigating Officer. He remained in the police vehicle when the police had gone to the house of accused Vishal @ Bhindi. He did not enter the house of accused Vishal @ Bhindi. He admitted that police himself had arrested accused Vishal but not at his instance. Police had not conducted the personal search of accused Vishal in his presence.
21. PW2 was declared hostile on the point of entering the house of accused Vishal @ Bhindi and identifying him. On being re examined by Ld. Additional Public Prosecutor for the State, PW2 stated that his statement is correct to the fact that he did not enter the house of accused Vishal @ Bhindi and had remained in the police vehicle. He also stated that his earlier statement regarding identification of Vishal @ Bhindi before police is the correct statement. He admitted that cash amount of Rs.320/ which pertains to him had been recovered from the pocket of accused Vishal @ Bhindi. He voluntarily stated that police had taken search of accused Vishal in the police station and amount of Rs.320/ was recovered from accused Vishal in the police station.
22. On being crossexamined by Sh. Amit Poonia, Ld. SC No. 601/17 State v. Ajij Page 12 of 27 Counsel for accused Vishal @ Bhindi, PW2 denied that he had identified accused Vishal at the instance of police. He admitted that when he was in police vehicle, he was not aware about the house number of accused Vishal @ Bhindi as well as the fact that he is present in his house. He had told the police about the denomination of notes of Rs.320/. He was having some more money in his purse which remained with him and the amount of Rs.320/ was kept in other pocket of the purse. The police had asked from him as to how much amount was missing and then he had told that Rs.320/ were missing from his purse.
23. PW3 HC Abdul stated that on 19/20.08.2017 at about 12.15 AM, on receipt of DD No. 3A, he alongwith HC Kamlesh had reached on the road leading towards Azadpur from Chhatrasal Stadium. He proved the true copy of DD No. 3A as Ex. PW3/A. Complainant Lalit Singh alongwith PCR staff were found present at the spot apprehending accused Ajij. He identified accused Ajij in the Court. The complainant and the PCR staff had produced accused Ajij, one surgical type knife having green colour, one broken SEKONDA watch and one earphone which were robbed by accused. Coaccused Vishal @ Bhindi had fled away from the spot on motorcycle alongwith the robbed mobile phone and cash amount of Rs.320/ of the complainant. They had tried to obtain CCTV footage at the spot but no CCTV had been found installed near the spot.
SC No. 601/17 State v. Ajij Page 13 of 2724. PW3 further deposed that the complainant and accused Ajij were brought to the police station in the PCR van where HC Kamlesh had recorded statement of the complainant Ex. PW2/A. HC Kamlesh had prepared the rukka and got the present case registered. He stated that after registration of the present case, further investigation was assigned to SI Ompal. HC Kamlesh had produced accused Ajij and SI Ompal had recovered broken watch, phone lead and the knife from the possession of accused Ajij. SI Ompal had prepared the sketch of the knife. The said knife was turned into a pullanda sealed with the seal of OPS and was taken into possession vide seizure memo Ex. PW2/K. The broken SEKONDA watch and the mobile lead were also taken into possession by SI Ompal vide memo Ex. PW3/B.
25. SI Ompal had also prepared the site plan at the instance of the complainant by visiting the spot. Accused Ajij was arrested vide memo Ex. PW2/F. Personal search of accused Ajij was carried out vide memo Ex. PW2/H. Accused Ajij had made disclosure statement Ex. PW3/C. He stated that at the instance of accused Ajij, his coaccused Vishal @ Bhindi (JCL) was apprehended at House No. 101, Jatwali Chopal, Alipur Delhi and he was also arrested vide arrest memo Ex. PW2/E. The complainant had also identified accused Vishal @ Bhindi (JCL) who was involved in the robbery alongwith accused Ajij who had fled away from the spot on the motorcycle with mobile phone and cash in the sum of SC No. 601/17 State v. Ajij Page 14 of 27 Rs.320/.
26. On search of the pocket of accused Vishal @ Bhindi (JCL), one NOKIA mobile phone and robbed cash in the sum of Rs.320/ were recovered and the same were taken into possession vide seizure memo Ex. PW2/C and Ex. PW2/L. The cash was sealed with the seal of OPS after turning the same into pulinda. Pulsar Motorcycle bearing no. DL10SE9181 used in the robbery was recovered from the house of Vishal (JCL) at his instance. The motorcycle was of black and blue colour. The engine number and chasis number of the motorcycle had been mentioned in the seizure memo by the police official. He stated that the said motorcycle alongwith its key were taken into possession vide seizure memo Ex. PW2/D.
27. Personal search of accused Vishal @ Bhindi (JCL) was carried out vide memo Ex. PW2/G. He proved the disclosure statement made by accused Vishal (JCL) as Ex. PW3/D. He proved the photographs of motorcycle which was used for the purpose of robbery as Ex. PW3/P1 to Ex. PW3/P3. He also proved surgical blade Ex. P1, GC Notes of Rs.320/ as Ex. P2, Nokia Mobile Phone as Ex. P3, Sekonda Watch as Ex. P4, white color lead as Ex. P5 and the keys of the bike as Ex. P6.
28. On being crossexamined by Sh. Deepak Chauhan, Ld. SC No. 601/17 State v. Ajij Page 15 of 27 Counsel for accused Ajij, PW3 stated that he had gone to the spot in government vehicle. The spot is at a distance of half kilometer from the Police Station. The site plan was prepared by SI Om Pal by visiting the spot at the instance of complainant. He was present at that time when the site plan was prepared. He denied that the complainant had not signed the site plan. At the time of arrest of accused Ajij, he alongwith the complainant, HC Kamlesh were present at the spot alongwith IO/SI Ompal. He denied that watch was also recovered alongwith cash in the sum of Rs.320/ and mobile phone from the possession of accused Vishal @ Bhindi.
29. PW4 HC Amit Kumar was the MHC(M) at PS Model Town who deposed that on 20.08.2017, SI Om Pal had deposited the case property with him. He had made the entry in this regard in register no. 19 at serial no. 1603 as Ex. PW4/A.
30. PW5 HC Kamlesh Kumar stated that on the intervening night of 19/20.08.2017 at about 12.15 AM, on receipt of DD No. 3A Ex. PW3/A, he alongwith HC Abdul had reached at the spot i.e. road leading towards Azadpur from Chhatrasal Stadium. Complainant Lalit Singh alongwith PCR staff had met him there who had produced accused Ajij. He has identified accused Ajij in the Court. He had recovered knife, SEKONDA watch and earphone of the complainant from accused Ajij. They were brought to the Police Station in the PCR van. Coaccused Vishal @ Bhindi had fled away on the SC No. 601/17 State v. Ajij Page 16 of 27 motorcycle with phone and cash of the complainant. No CCTV had been found at the spot. He had recorded the statement of complainant Lalit Singh at the Police Station Ex. PW2/A. He prepared the rukka Ex. PW5/A. He had got the present case registered under Section 392/397/411/34 IPC. Further investigation was assigned to SI Ompal and he had handed over the broken watch, earphone of the complainant and the knife to SI Om Pal which were taken into possession by him.
31. Coaccused Vishal @ Bhindi (JCL) was apprehended and arrested from H.No. 101, near Jat Chopal, Village Alipur, Delhi at the instance of accused Ajij and the complainant had identified him vide arrest memo Ex. PW2/E. Personal search of accused Vishal @ Bhindi was carried out vide memo Ex. PW2/G. The accused had made disclosure statement Ex. PW3/D. On search of pocket of accused Vishal (JCL), one NOKIA mobile phone and robbed cash of Rs.320/ was recovered and the same were taken into possession vide seizure memos Ex. PW2/C and Ex. PW2/L. The cash was sealed with the seal of OPS after turning the same into pullanda.
32. He has identified the photographs pertaining to the motorcycle Ex. PW3/P1 to Ex. PW3/P3. He identified the surgical blade Ex. P1, GC Notes of Rs.320/ as Ex. P2, one mobile phone make Nokia having back of orange colour having SIM of IDEA Ex. P SC No. 601/17 State v. Ajij Page 17 of 27 3, one broken SEKONDA watch (dial) Ex. P4, one white colour earphone Ex. P5 and two keys of bike Ex. P6.
33. On being crossexamined by Sh. Deepak Chauhan, Ld. Counsel for accused Ajij, PW5 stated that he had received information about the incident at about 12.15 AM in the night and accordingly, he had reached the spot on motorcycle within 5/10 minutes. He had recorded statement of the complainant in the Police Station but he did not remember the exact time. He had not recorded the statement of any public witness at the spot. He remained at the spot for about 30/45 minutes and thereafter, had left for the Police Station. He denied that there is a metro station near the spot. He admitted that besides the complainant, he had not found any other eye witness at the spot. He denied that there was a police post and petrol pump immediate near to the spot. He further denied that there was a mall and a bank in the mall immediate near to the spot. He stated that personal search of accused Ajij was carried out by SI Ompal after the arrest. He admitted that the place of incident was a running traffic road even till late night.
34. PW6 SI Om Pal Singh is the Investigating Officer of the case who stated that on the intervening night of 19/20.08.2017, after registration of the case on the rukka prepared by HC Kamlesh, further investigation was assigned to him. He had prepared the sketch of the knife (surgical blade) Ex. PW6/A. The said knife was SC No. 601/17 State v. Ajij Page 18 of 27 taken into possession after turning the same into pullanda and was sealed with the seal of OPS vide seizure memo Ex. PW2/K. He has identified accused Ajij in the Court.
35. PW6 further stated that coaccused Vishal @ Bhindi (JCL) was apprehended and arrested from H.No. 101, near Jat Chopal, Village Alipur, Delhi at the instance of accused Ajij and the complainant had also identified him vide arrest memo Ex. PW2/E. Personal search of accused Vishal @ Bhindi was conducted vide memo Ex. PW2/G. Coaccused Vishal @ Bhindi made disclosure statement Ex. PW3/D.
36. On search of pocket of accused Vishal (JCL), one NOKIA mobile phone and robbed cash of Rs.320/ were recovered and the same were taken into possession vide seizure memo Ex. PW2/C and Ex. PW2/L. The cash was sealed with the seal of OPS after turning the same into pullanda. Pulsar Motorcycle No. DL10SE9181 used in the robbery was recovered from the house of Vishal (JCL) at his instance. The motorcycle was of black and blue colour. Its engine number and chasis number had been mentioned in the seizure memo. The said motorcycle alongwith its key was taken into possession vide seizure memo Ex. PW2/D. During the course of investigation, he had recorded statements of witnesses. He had also got deposited the case property in the malkhana. After completion of investigation, he had prepared the charge sheet and SC No. 601/17 State v. Ajij Page 19 of 27 filed the same in the court for trial.
37. PW6 has identified the photographs Ex. PW3/P1 to Ex. PW3/P3 pertaining to the motorcycle. He has also identified the surgical blade Ex. P1, GC Notes of Rs.320/ as Ex. P2, one mobile phone make Nokia having back of orange colour having SIM of IDEA Ex. P3, one broken SEKONDA watch (dial) Ex. P4, one white colour lead (earphone) Ex. P5 and two keys of bike Ex. P6.
38. On being crossexamined by Sh. Deepak Chauhan, Ld. Counsel for accused Ajij, PW6 stated that he had not met the PCR personnel in the Police Station as he had already left. He had not cited PCR personnels as witnesses in this case. He denied that accused Ajij was already arrested by the PCR personnel in this case or that he had not arrested accused Ajij in this case. No other eye witness was found at the spot when he had reached there. The incident had taken place on the patri on the main road and the passersby, autorickshaws and cars were going on the main road for the whole night. The complainant was not medically examined as he had refused for the same. The person of Alto car mentioned in the complaint did not meet him and he is not aware about the same. He had recorded the supplementary statement of complainant Lalit after arrest of accused Vishal @ Bhindi (JCL).
39. In the statement U/s.313 Cr.P.C., accused has denied SC No. 601/17 State v. Ajij Page 20 of 27 the incriminating evidence emerging on record put to him and has expressed his ignorance about the same. He has stated that he has been falsely implicated in the present case. He refused to lead DE.
40. I have heard final arguments on behalf of Ms. Neeta Gupta, Ld. Chief PP for State and Sh. Deepak Chauhan, Ld. Counsel for accused and have gone through the record of the case and relevant provisions of law.
41. Ld. Public Prosecutor for State has argued that all the witnesses including the complainant have supported the case of prosecution and their testimony has established the guilt of accused beyond all reasonable and probable doubt.
42. On the other hand, Ld. Defence Counsel has argued that the prosecution has failed to establish the guilt of accused beyond reasonable doubt as the complainant has turned hostile on some material points and there are contradictions in his statement. He has also submitted that the case property was planted upon the accused and no public person was joined in the said alleged recovery. There is also no evidence on record to prove the guilt of accused and that the police and the complainant have concocted a false story to implicate the accused.
43. It will be useful to reproduce Section 392/411/34 IPC SC No. 601/17 State v. Ajij Page 21 of 27 under which the accused has been charged.
Section 392 of Indian Penal Code provides as under:
"Punishment for robbery: Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunshine, the imprisonment may be extended to fourteen years."
Section 411 of Indian Penal Code Provides as under:
"Dishonestly receiving stolen property:
Whoever, dishonestly receives or retains any stolen property knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 34 of Indian Penal Code provides as under:
"Acts done by several persons in furtherance of common intention: When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons I liable for that act in he same manner as if it were done by him alone."
44. After hearing arguments and having gone through the case record, I am of the opinion that the material witnesses in this case were not only the complainant but also the police officials SC No. 601/17 State v. Ajij Page 22 of 27 including the Investigating Officer who had reached the spot after being informed about the incident. It is the case of the prosecution as well as the concerned witnesses that accused Ajij was apprehended at the spot itself and recovery of the knife was effected from the spot itself as the knife had fallen down on the ground during a scuffle which had taken place between the accused and the complainant who had tried to save himself from the knife blow. It is the case of the complainant himself as per his testimony that accused Ajij was apprehended by him at the spot itself and when the PCR officials had arrived at the spot he was still holding on the accused and the PCR officials were witnesses to the same. The complainant has also deposed categorically that the knife which had fallen down on the ground had been picked up by the PCR officials with the help of a handkerchief. It is, therefore, clear that it was not only the complainant but the PCR officials also who were material witnesses to the recovery as well as apprehending accused Ajij by the complainant.
45. The complainant has also stated that when he had raised an alarm, an Alto Car stopped and 34 persons had been informed about the entire incident. He goes on even to state that those persons and the other public persons who had gathered at the spot did not believe him first, and wanted proof that the incident in question had taken place and only after recovery was made from the accused of his purse containing his driving license with them had SC No. 601/17 State v. Ajij Page 23 of 27 believed it. This clearly shows that these public persons were also material witnesses to not only apprehending the accused but also of the recovery of the knife and robbed articles from accused Ajij.
46. The Investigating Officer has not examined any of these material witnesses to support the prosecution case. The Investigating Officer has given no explanation as to why he had failed to examine any of these witnesses who were crucial and independent witnesses to the incident in question.
47. It is not the case of the prosecution that these witnesses had left the spot before they could reach there. Therefore, this makes the case of the prosecution doubtful that the best and independent witnesses were available to the prosecution. However, they had failed to examine them for no reason.
48. The knife in question had been recovered from the spot but the finger prints of the accused were not taken nor they were matched with the finger prints which could have been found on the knife used by the accused. No explanation has been given by the Investigating Officer regarding the same.
49. The complainant has deposed that the accused had put a knife on his neck for the purpose of committing robbery. However, the complainant was not medically examined to find out any scratch SC No. 601/17 State v. Ajij Page 24 of 27 mark on his neck. If the deposition of the complainant is to be believed, he has stated that the accused had kept a knife on his neck and thereafter had snatched his watch, etc. and thereafter a scuffle had taken place between him and the accused. It is but natural that in case the knife was kept on the neck of the complainant, the complainant would have suffered, if not a deep grievous injury, a cut or a bruise. It is the deposition of the Investigating Officer that he had not got the complainant medically examined as he had refused to get himself medically examined. There is no explanation on the part of the complainant as to why he had refused to get himself medically examined. This makes the story of the complainant doubtful that a knife at all was put at his neck by the accused.
50. The case property in question was a purse, cash, earphone and the phone which were allegedly robbed and recovered from the accused. However, the complainant states that he had not even handed over this crucial piece of evidence i.e. the purse to the IO and for reasons best known to the IO, he did not bother to seize this crucial piece of evidence which was allegedly robbed by the accused. The complainant has also stated that he had signed all the documents in the police station without going through the contents of the same. It is not clear as to why the documents were not prepared at the spot. It is also not clear as to why the witnesses of recovery and apprehension of the accused who were present at the spot were not made to sign those documents. Interestingly, the sketch of knife SC No. 601/17 State v. Ajij Page 25 of 27 does not bear signatures of the complainant and no explanation is forthcoming for the same.
51. The complainant has also stated that he had not gone inside the house of accused Vishal @ Bhindi (JCL) from where the alleged recovery of motorcycle was effected since he kept on sitting in the police vehicle.
52. In view of the discussion made above, it is clear that the prosecution has not been able to prove the recovery as well as the incident itself beyond reasonable doubt. Therefore, the accused is entitled to benefit of the same. I find support in my opinion from the case of State of Goa Vs. Pandurang Mohite AIR 2009 SC 1066, wherein it was observed as under: "50. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal (1988 (4) SCC 302)."
53. As a result of my findings on facts discussed above, SC No. 601/17 State v. Ajij Page 26 of 27 accused Ajij is entitled to acquittal of the offences punishable under Section 392/411/34 IPC and he is acquitted.
54. Bail bonds of the accused stand cancelled and his surety stands discharged. Original documents, if any, be released to the rightful owner after getting the endorsement cancelled.
55. Previous bail bond tendered by the accused stands extended for the purpose of Section 437A Cr.P.C. till 15.07.2020.
56. Ld. counsel for the accused has been telephonically informed about the outcome of the case. Ld. Counsel for the accused is directed to ensure that fresh sureties are furnished U/s.437A Cr.P.C. through official email ID of this court i.e. [email protected].
57. File be consigned to Record Room after compliance of bail bond u/Section 437A Cr.P.C.
Announced through Video Conferencing today i.e. 9th July, 2020.
(Swarana Kanta Sharma) District & Sessions Judge (North) Rohini Courts, Delhi SC No. 601/17 State v. Ajij Page 1 of 27