Delhi District Court
State vs Vicky on 29 November, 2016
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: ID No.DLSE010000292010
SC No.2504/2016
FIR No.244/10
PS Govind Puri
State Versus Vicky
S/o Shri Hansraj
R/o H. No.299, Valmiki Mohalla,
Tughlakabad Village,
New Delhi110019
__________________________________________________________
Date of Institution : 25.09.2010
Date of transfer of the case
to this court : 02.03.2015
Date of arguments : 08.11.2016
Date of judgment : 29.11.2016
JUDGMENT
1. As per case of prosecution, on 04.07.10, ASI Mange Lal (PW9) received information at about 6:30 PM from wireless operator Lady Ct. Usha in DO room regarding beatings by boys and also causing knife injuries at House No.146/5, Chhuriya Mohalla, TKD Village. He recorded the said information vide DD SC No.1375/2016 1 of 14 No.19A Ex. PW9/C and sent the same to SI Hans Raj (PW11) through Ct. Jagjeevan (PW1) for necessary action.
2. On receipt of DD No.19A Ex. PW9/C, SI Hansraj Bainsla (PW11) alongwith Ct. Jagjeevan reached at Tughlakabad, Chhuriya Mohalla, where neither the injured nor any witness was found. They came to know that injured had gone to hospital, therefore, they went to Trauma Centre, AIIMS, where Parvez Alam and Mohd. Zahid were found being treated. Parvez Alam had already left the hospital, while Zahid was declared unfit for statement. SI Hans Raj collected their MLCs and came back to Police Station.
3. On 06.07.10, Parvez Alam (PW2) came to Police Station and gave his statement Ex. PW2/A on which SI Hans Raj prepared rukka Ex. PW11/A and gave the same to Ct. Jagjeevan for registration of FIR in the case.
4. Ct. Jagjeevan (PW1) came to Police Station with tehrir and handed over the same to ASI Mange Lal (PW9), who recorded FIR No.244/10 under section 392/394/397/34 of The Indian Penal Code, 1860 (in short "IPC") Ex. PW9/A. He made endorsement on tehrir vide Ex. PW9/B and thereafter, gave the copy of FIR and original tehrir to Ct. Jagjeevan for handing over the same to IO for further investigation. Ct. Jagjeevan came to the SC No.1375/2016 2 of 14 spot and handed over copy of FIR and asal tehrir to the IO of the case.
5. SI Hans Raj Bainsla prepared site plan Ex. PW2/B of the spot of incident at the instance of Parvez Alam (PW2). He also examined Danish, an eye witness of the incident. They informed that three persons caused them beatings by use of knife and cricket bat and also snatched their mobile phones and Rs.150/. He searched for the offenders in the area, but they were not found.
6. On 07.07.10, Parvez Alam (PW2) came to the police station and informed SI Hansraj Bainsla that three boys, who had robbed them are sitting in the park behind school block, Tughlakabad. Pursuant to receipt of said information, SI Hansraj Bainsla (PW11) alongwith HC Jaiveer, Ct. Jagjeevan and Ct. Dayal Singh reached in the area of jungle behind school block, where at the instance of Parvez Alam, accused Vicky was arrested. From the search of accused Vicky, mobile phone make Nokia 7610 belonging to Zahid was recovered which was seized by seizure memo Ex. PW2/E. Two other boys namely Sheesh Pal and Raju were also apprehended, who were found to be juvenile. From possession of Raju, one mobile phone make China guild was recovered which was seized vide seizure memo Ex. PW2/D and from possession of Sheeshpal, one cricket bat was recovered which SC No.1375/2016 3 of 14 was seized vide seizure memo Ex. PW1/A. Accused Vicky pointed out the place of incident and therefore, at his instance, pointing out memo Ex. PW1/B was prepared. Accused Raju and Sheeshpal were handed over to SI Ashok Giri, Juvenile Welfare Officer posted in the Police Station for further proceedings against them.
7. Matter was investigated as per law. IO of the case conducted various stages of investigation in the matter. The accused was found involved in the commission of offence in the case. Therefore, on conclusion of investigation, he was chargesheeted to face trial.
8. Accused, on his appearance before the court of learned MM, was supplied copy of charge sheet and complete set of documents and thus, compliance of section 207 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") was made.
9. As the offence under section 397 IPC is exclusively triable by the Court of Session, therefore, the matter was committed to the Court of Session for trial in accordance with law.
10. Prima facie, sufficient material was found to frame charge against accused for offences punishable under section 394 read with section 397/34 IPC, therefore, charge for the said offences was framed against him on 21.04.2011 to which he pleaded not guilty SC No.1375/2016 4 of 14 and claimed trial.
11. In order to bring home the guilt against accused, prosecution has examined twelve witnesses. The details of which are given as under: i. PW1 Ct. Jagjeevan Ram is the witness, who joined the investigation of the case alongwith SI Hansraj on 04.07.10 and 07.07.10.
ii. PW2 Parvez Alam is the victim and sufferer in the case. This is the witness, on the basis of whose statement Ex. PW2/A, FIR was registered. The accused alongwith his associates were also apprehended at the instance of this witness.
iii. PW3 Mohd. Jahid is also a victim in the case. In the alleged incident, the accused persons had snatched his mobile phone make Nokia 7610 and also inflicted injuries upon him. iv. PW4 Shahid Ali is the supardar of the mobile phone Ex. P1. v. PW5 Mohd. Danis is an eye witness of the incident. vi. PW6 HC Daya Kishan, PW7 HC Dinesh and PW8 HC Jayveer Rathi are the witnesses, who joined the investigation of the case on 07.07.10 alongwith IO SI Hansraj Bainsla. In the presence of these witnesses, the accused persons were apprehended and robbed articles were recovered.
vii.PW9 ASI Mange Lal, the duty officer, is a formal witness of the SC No.1375/2016 5 of 14 prosecution.
viii.PW10 R.N. Gupta is also a formal witness of the prosecution. He made verification regarding the receipt which was issued by his shop to Shahid Ali (PW4) regarding sale of mobile phone make Nokia 7610.
ix. PW11 Retd. SI Hansraj Bainsala is the IO of the case; and x. PW12 Inspector Veer Singh is a formal witness of the prosecution.
He is totally unconnected with respect to the incident in this case.
12. Accused during the course of trial admitted MLCs i.e. Ex.
A1 pertaining to injured Parvez and Ex. A2 pertaining to injured Zahid. Statement of counsel for accused was recorded in this regard on 03.03.16. He did not dispute the genuineness of the MLCs and contents of the same. Therefore, in view of the statement given by counsel for accused, formal proof of contents of the aforesaid MLCs was dispensed with.
13. On conclusion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded, wherein all incriminating material/circumstances appearing against him was put to him, to which he claimed innocence and alleged false implication.
14. Accused denied to lead any evidence in his defence.
Therefore, defence evidence was closed.
15. I have heard and considered the submissions advanced by SC No.1375/2016 6 of 14 Shri M. Zafar Khan, learned Additional Public Prosecutor for State and Shri Jitender Tyagi, learned counsel for accused and carefully perused record of the case.
16. Out of twelve witnesses examined by the prosecution, PW2 Parvez Alam and PW3 Mohd. Zahid are the victims / injured in the case, while PW5 Mohd. Danish is an eye witness of the incident. PW2 Parvez Alam deposed that on 04.07.10 at about 4:45 PM, he alongwith his maternal uncles namely Zahid and Danish were playing cricket at a vacant place in the jungle nearby Tughlakabad. In the meantime, three boys belonging to Valmiki Mohalla, Tughlakabad Village came there and took cricket bat from him on the pretext of playing cricket. Thereafter, one of the boys snatched his mobile phone make China guild bearing No.9971074269 from his right side pocket of his wearing pant. Another boy caught hold his maternal uncle Zahid and snatched his mobile phone make Nokia 7610 and money. When Zahid objected, the third boy named Vicky gave knife blow injuries on his arm and stomach. He also caused cricket bat blow injury on the head of Zahid. He stated that the boy Vicky, who caused injury to his maternal uncle Zahid was having burn and cut marks on his arm. He further deposed that Danish was also beaten with cricket bat on his head by another assailant. He stated that the boy, who caused SC No.1375/2016 7 of 14 injuries with cricket bat on the head of Danish was having a snake engraved on his arm. The third assailant, who snatched mobile phone of Zahid named Raju had his name engraved on his hand. He stated that the said Raju also snatched his money amounting to Rs.150/. Thereafter, they all ran away from the spot and reached at Trauma Centre, AIIMS in three wheeler. He stated that Zahid was admitted in the hospital, while Danish was discharged after giving medical aid. He stated that he immediately left from the hospital to his relatives for arrangement of money for further treatment of Zahid. He deposed that on 06.07.10, he went to Police Station Govind Puri and informed the police regarding the incident. The police recorded his statement Ex. PW2/A.
17. PW2 Parvez Alam further deposed that on 07.07.10, when he was searching for accused persons in the area of Tughlakabad jungle, he saw four boys sitting behind Tughlakabad school and talking to each other. He called the police at 100 number. The police officials of Police Station Govind Puri came at the spot and apprehended all the four boys at the instance of Parvez Alam (PW
2). Accused Vicky and Sheeshpal and Raju (juveniles) were apprehended, while the fourth boy was not found involved in the incident, therefore, he was let off. One mobile phone make Nokia belonging to Zahid was recovered from the possession of accused SC No.1375/2016 8 of 14 Vicky, while another phone make China belonging to witness Parvez Alam was recovered from Raju. Cricket bat belonging to the witness was recovered from the possession of Sheeshpal. IO seized both the mobile phones and cricket bat vide seizure memos Ex. PW2/C, Ex. PW2/D and Ex. PW1/A respectively. Accused Vicky was arrested vide arrest memo Ex. PW2/E. His personal search was conducted vide memo Ex. PW2/F. Accused Vicky was correctly identified by witness Parvez Alam in the court. He also correctly identified mobile phone make Nokia 7610 Ex. P1 which was recovered from the possession of accused Vicky. He also identified cricket bat Ex. P2 which was used by accused persons in committing the crime in the case. He further identified mobile phone make China guild Ex. P3 which was snatched by accused persons in the incident and recovered from the possession of Raju.
18. PW3 Mohd. Zahid has fully supported and corroborated the testimony of PW2 Parvez Alam on all material particulars. He deposed on the same lines as deposed by PW2 Parvez Alam. He correctly identified accused Vicky as the person, who had caused knife blow to him. In his deposition, PW3 Mohd. Zahid. stated that accused Vicky had caught hold of him and snatched his mobile phone make Nokia 7610 from right pocket of his pant. He also identified mobile phone Ex. P1 in the court which was snatched SC No.1375/2016 9 of 14 from him by accused Vicky. He further identified the other mobile phone Ex. P3 belonging to Parvez Alam and cricket bat Ex. P2 which was used in the commission of offence in the case.
19. PW5 Mohd. Danish, an eye witness of the prosecution, has also supported and corroborated the testimony of PW2 Parvez Alam and PW3 Zahid on material aspects. He identified accused Vicky as the person, who gave knife blows to Zahid. He identified the mobile phones Ex. P1 and Ex. P3 which were snatched from Parvez Alam (PW2) and Zahid (PW3). He further identified cricket bat Ex. P2 which was used by accused persons in the commission of offence in the case.
20. PW2 Parvez Alam, PW3 Mohd. Zahid and PW5 Mohd. Danish have fully supported the prosecution case and corroborated each other on all the material points during their deposition. They were cross examined at length, but nothing came in their cross examination to doubt their veracity. The aforesaid witnesses did not have any previous enmity with the accused persons. They have deposed about the facts whatever happened to them and they saw with their naked eyes. They remained consistent and firm during their deposition. Their testimony remained uncontroverted and un challenged.
21. From the testimony of PW2 Parvez Alam, PW3 Mohd.
SC No.1375/2016 10 of 14 Zahid and PW5 Mohd. Danish, it stands proved on record that it was accused Vicky, who alongwith his associates robbed mobile phone make Nokia 7610 Ex. P1 belonging to Zahid. The accused, while committing robbery of the mobile phone and money of Parvez Alam and Zahid also inflicted injuries upon them. Accused Vicky is alleged to have given knife blows to Zahid. The knife allegedly used by accused Vicky could not be recovered during the course of investigation. The said knife was not produced in the court. Thus, prosecution miserably failed to prove on record that the knife which was used by accused Vicky in the commission of offence was a deadly weapon. Therefore, accused Vicky cannot be held guilty and convicted for committing the offence punishable under section 397 IPC.
22. The accused in the course of trial admitted MLC Ex. A1 pertaining to injured Parvez and MLC Ex. A2 pertaining to injured Zahid. Both the injured were examined by Dr. Shailesh M. Singh. The doctor opined nature of injury on the MLC of Parvez to be simple blunt and on the MLC of injured Zahid to be simple sharp. The accused Vicky, while robbing Parvez Alam and Zahid also voluntarily caused injuries to them thereby he committed the offence punishable under section 394 IPC.
23. PW1 Ct. Jagjeevan, PW6 Daya Krishan, PW7 HC Dinesh SC No.1375/2016 11 of 14 and PW8 HC Jayveer Rathi are the witnesses of arrest of accused Vicky and his associates. They participated in various proceedings at the time of apprehension and recovery of robbed mobile phones, money and cricket bat from the possession of accused and his associates. They have supported and corroborated each other during their deposition in the court. There is no inconsistency in their deposition. They have fully supported the prosecution story.
24. From the testimony of aforesaid witnesses, it stands proved on record that mobile phone make Nokia 7610 Ex. P1 belonging to Zahid was recovered from the possession of accused Vicky. They correctly identified accused Vicky from whose possession mobile phone Ex. P1 was recovered.
25. The defence plea of accused is that he was picked up from the house of his mausi at Faridabad and falsely implicated in this case. His further plea is that no recovery was effected from him and the alleged mobile phone was planted upon him. Accused did not examine his mausi or any other family member of her house or any other person of the nearby locality to prove the fact that he was lifted from the place as claimed by him. He further failed to furnish any motive for his false implication in this case. Thus, the defence plea of accused is found to be without any basis and substance.
26. Contrary to the defence plea taken by accused during the SC No.1375/2016 12 of 14 course of trial, accused in his examination under section 313 Cr.P.C. stated that he was apprehended by the police from Faridabad when he was going to play dhol in a party. He further stated that he was falsely implicated in the case at the instance of his uncle Balraj. He stated that Balraj threatened Sheeshpal and Raju to take his name and due to this reason, they took his name for committing the offence in the case. The plea of accused is plain and simple denial. The prosecution witnesses namely Parvez Alam (PW2), Zahid (PW3) and Mohd. Danish (PW5) have categorically deposed that it was accused Vicky, who caught hold of Zahid and gave knife blow injuries to him. Accused failed to furnish any reason for his false implication by the victims of the crime. The present accused was not apprehended on the basis of disclosure statement of Sheeshpal and Raju, but at the instance of PW2 Parvez Alam. Accused has failed to show any previous animosity with the public witnesses, who have identified him as the offender involved in the commission of offence in the case. Thus, the plea as taken by accused during his examination under section 313 Cr.P.C. is found to be after thought and without any basis.
27. For the reasons discussed above, in my view, prosecution has succeeded to prove its case for offence under section 394 IPC SC No.1375/2016 13 of 14 against accused Vicky beyond all shadow of reasonable doubt. Accordingly, accused Vicky is hereby held guilty and convicted for having committed the offence punishable under section 394 IPC.
28. Let accused be heard separately on the point of sentence.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 29.11.2016 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
SC No.1375/2016 14 of 14