Delhi District Court
State vs 1. Manish on 10 January, 2019
.IN THE COURT OF MS. RAJ RANI, ADDL. SESSIONS JUDGE04,
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
Case No. 52414/16
FIR No: 560/14
U/s: 392/394/397/452/34 IPC & 25/27 of Arms Act
PS : Kanjhawala
STATE Versus 1. Manish
S/o Ram Asrey
R/o H. No. F187,
Laxmi Park, Nangloi,
Delhi.
2. Ibrahim
S/o Sh. Nasruddin
R/o H. No. 177, Laxmi Park,
Nangloi, Delhi
Complainant:
Sh. Sanjay Singh
S/o Sh. Harpal Singh
R/o B12, JJ Colony,
Savda, Delhi
Date of receipt of file in Sessions Court : 12.11.2014
Date of reserve for orders : 07.12.2018
Date of judgment : 10.01.2019
J U D G M E N T:
1. By this judgment, I shall conclude the trial of the case FIR No.560/14, Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 1/26 Police Station Kanjhawala registered against both the accused persons for the offences punishable Under Section 392/394/397/452/34 IPC and 25/27 Arms Act. The offences so committed are well within the cognizance of this Court wherein the accused persons are facing the trial.
2. In brief, the case of the prosecution is that on 21.07.2014, at about 5.45pm, when complainant was present in his clinic and no patient was present there in his clinic. Suddenly, two boys came inside his clinic and out of them, the healthy boy caught his neck from one hand and snatched his wearing gold chain from his another hand and the second boy who was of thin built, took out a katta from his pocket and hit the same on the head of complainant. Thereafter, both the boys ran away from there. Complainant raised alarm while chasing them and the public persons caught both the accused and gave beatings to them. Complainant made a call at 100 number. Thereafter, PCR / CAT Ambulance came at the spot and saved both the accused from the beatings of public and on inquiry, the healthy boy disclosed his name as Ibrahim s/o Nasruddin and the slim boy told his name as Manish s/o Ram Asrey. Local police also reached at the spot. Both the accused were apprehended and katta was recovered from the hand of accused Manish. Statement of complainant was recorded, on the basis of which, present FIR No.560/14 u/s.392/394/397/452/34 IPC was recorded at PS Kanjhawala.
3. After completion of investigation, charge sheet for the offences punishable u/s. 392/394/397/452/34 IPC was prepared and filed in the Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 2/26 court of Ld. Metropolitan Magistrate. After taking cognizance and complying with the provisions of Section 207 CrPC, the present was committed to the court of Sessions.
4. After hearing arguments on the point of charge, charge for the offences punishable under Section 452/392/394/397/34 IPC was framed against both the accused persons and separate charge under Section 25 and 27 of Arms Act was framed against accused Manish by the Ld. Predecessor of this Court, to which both the accused pleaded not guilty and claimed trial. Perusal of the record reflects that as per prosecution case, only accused had used the country made pistol at the time of committing robbery but inadvertently, the charge u/s.397/34 IPC was framed against both the accused by the Ld. Predecessor of this court. Thus, it is made clear that charge u/s.397 IPC be read against accused Manish only.
5. In order to bring home the guilt of the accused persons, the prosecution has examined fifteen witnesses.
PUBLIC WITNESSES:
6. PW2 Amit Haldar deposed that he was residing at B13, Savda, JJ Colony, Delhi81 along with his family and on 21.07.2014 at about 06.00pm, his neighbor Sanjay Singh raised an alarm after coming out from his clinic as two boys were beating him on the point of country made pistol. He informed the police at number 100. Public persons who were present there, caught hold of both the said boys, while they were Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 3/26 trying to escape and a country made pistol was recovered from one of the said two boys. Police arrived at the spot and the public persons had handed over the custody of both the accused alongwith recovered katta to the police. Witness had correctly identified both the accused persons in the court.
7. PW/5 Sarafat Khan deposed that on 21.07.2014, at about 6:05 pm, he was standing at a chowk nearby his house and there, he saw both the accused running and at that time, accused who was of thin built in comparison to other was having a country made pistol in his hand. Some persons were also raising alarm 'Doctor ko goli maar ke bhage hai'. Some boys were playing cricket there and he with the help of those boys and some other persons, apprehended both the accused and he snatched the country made pistol from the accused who was of thin built. He dialled number 100. PCR arrived at the spot and he handed over custody of both the accused and the said country made pistol to the PCR officials. On being interrogated by the PCR officials, he came to know the names of accused persons as Manish and Ibrahim. Manish was the person who was having country made pistol with him. The witness has identified the country made pistol Ex.P1 which was recovered from the possession of accused Manish. Witness identified both the accused persons.
8. Complainant Sanjay Singh who was examined as PW 7 has deposed that he was residing at the first floor of B12, JJ Colony, Savda, Delhi and on the ground floor of same building, he was having a clinic in which patients were treated by Dr. Parveen. On 21.07.2014, at about Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 4/26 5:45pm, he was present at the said clinic. At that time, no patient was there, as such he was alone. There, suddenly, two boys entered the said clinic and accused Ibrahim (whose name he came to know later on after his apprehension), caught hold his neck with his one hand and snatched the gold chain which he was wearing in his neck, with his other hand and his other associate (whose name later on he came to know as Manish) took out a country made pistol and hit the butt of country made pistol on his head. Thereafter, both the accused fled away from his clinic. He also came out the said clinic and chased accused persons to a short distance, raising alarm and thereafter both the accused were apprehended by the public persons and they were beaten by the public. Thereafter, he came back to his clinic. He dialled number 100. PCR, local police as well as one ambulance reached at the spot. PCR officials handed over the custody of both the accused along with country made pistol to the local police. His statement/complaint Ex.PW7/A was recorded by the police. He had sustained injury on his head. IO prepared sketch Ex.PW6/A of the katta, and thereafter, seized the same vide seizure memo Ex PW 6/B. IO got the FIR registered on his statement and prepared site plan EX PW 7/B at his instance. He and both the accused were got medically treated at SGM hospital. Accused Manish and Ibrahim were arrested vide arrest memos Ex.PW6/C and Ex.PW6/D and their personal search was conducted vide memos Ex.PW6/E and Ex.PW6/F. His purse was also recovered from the possession of one of the accused whose name he did not remember and same was also seized by the IO after being identified by him vide seizure memo Ex.PW7/C. Witness identified the case property i.e katta Ex.P1 with which accused Manish had inflicted Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 5/26 injury on his head, one purse containing Rs. 180/ cash and the photocopy of DL of witness and some other documents which were recovered from accused Manish as Ex.P2 (Colly). Witness identified both the accused persons.
POLICE WITNESSESS
9. PW1 HC Anand has deposed that on 21.07.2014, he was working as Duty Officer at PS Kanjhawala from 04.00 pm to midnight and on receipt of Rukka Mark 'A' from ASI Ashok Kumar through Ct. Arun Kumar, he got the FIR registered through Computer Operator Ct. Pardeep and gave its copy Ex.PW1/A alongwith Rukka after endorsement Ex.PW1/B to Ct. Arun Kumar. The certificate u/s 65B of the Evidence Act in respect of the FIR bearing signature of Ct. Pardeep which he identified having seen him writing and signing in the usual course of their duties at the police station is Ex PW 1/C.
10. PW3 Ct. Pardeep has deposed that on 21.07.2014, he was posted at PS Kanjhawala as constable/computer operator. On that day, duty officer HC Anand Kumar arrived in the CIPA Room and handed over him a tehrir on the basis of which, he had typed the present FIR on computer and handed over its print out alongwith original tehrir to HC Anand Kumar. Certificate u/s 65B on Indian Evidence Act Ex. PW 1/C and computerized copy of FIR Ex PW 1/A.
11. PW 4 HC Sunder Pal deposed that on 21.07.2014, he was posted at Central Police Control Room and his duty was on Channel No. 147 to Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 6/26 attend the calls made at 100 number. On that day at about 18:05 hours, he received a call from Mobile No. 9211356975 and the name of the caller was reflected as S. Khan on the system and caller informed him, "Ghevra Colony BBlock do ladke goli chala kar bhag rahe hai". He filled PCR form Ex.PW4/A and passed this information further. Certificate under Section 65B of the Indian Evidence Act regarding the said computerized PCR form is Ex. PW 4/B.
12. PW6/Ct. Arun Kumar deposed that on 21.07.2014, he was posted at PS Kanjhawala and was Beat Constable of Shavda JJ Colony. On that day on receiving DD No. 47B, he along with ASI Ashok Kumar reached at B 12, Shavda JJ Colony. There, ASI Shamsher Singh, Incharge, PCR Van met them and he produced two boys whose name revealed to be Ibrahim and Manish and one country made pistol. One person namely Sanjay Singh also met him. IO prepared sketch Ex. PW 6/A of the said Katta after measuring the same. Thereafter, IO prepared a tehrir and handed over the same to him. He took the same to Police Station for registration of FIR. After registration of FIR, he came back at the spot and handed over the copy of FIR and original tehrir to IO. The said Katta was seized by the IO vide seizure memo Ex. PW 6/B. After preparing a pullanda and sealing the same with the seal of 'AK', he kept the seal with him after the use. Both the accused namely Manish and Ibrahim were arrested vide arrest memos Ex. PW 6/C & PW 6/D respectively and their personal search were conducted vide memo Ex. PW 6/E & PW 6/F respectively. Accused persons pointed out the place of occurrence and were medically examined at SGM Hospital. Thereafter, they reached the Police Station and the accused persons Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 7/26 were put in the lockup. He further deposed that the pullanda of the katta was sealed with the seal of AKB and after use, seal was handed over to him. He took the rukka to the police station and after getting the FIR registered, again reached at the spot. IO prepared site plan at the instance of complainant. Case property was deposited by the IO in the Malkhana. One purse containing Rs.180/, DL of complainant and some documents were recovered from the possession of accused Ibrahim. Same was seized by the IO vide seizure memo already Ex PW 7/C and after seeing the seizure memo Ex PW 7/C, witness again said that the said purse was recovered from the possession of accused Manish and not from accused Ibrahim. The witness identified the katta Ex.P1 as the same katta which was seized by the IO in his presence, on being produced by PCR officials. He has also identified one purse containing Rs. 180/ cash and the photocopy of DL of witness and some other documents Ex.P2 (colly.) as the same which were recovered from accused Manish in his presence.
13. PW8 W/Ct. Rekha deposed that on 21.07.2014, she was posted as CPCR to attend the calls made at number 100. on that day, at 17:59:20 hrs, she had received a call from mobile no. 9958677985 and the name of the caller reflected on the system was Amit Haldar and the caller informed her, "JJ Colony Savda Mother Diary ke pass, ek admi jiske pass katta tha, chain cheen kar le gaya aur maar peet ki hai, jo injured hai". She filled PCR form Ex.PW8/A.
14. PW9 SI Shamsher Singh has deposed that on 21.07.2014, he was posted as ASI PCR, Outer Zone, Delhi. His duty was on PCR Van Libra Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 8/26 38 as Incharge. On that day, on receiving a call, he did not reach at the spot but on the way, he saw that public persons were chasing two boys. Another Van Libra 34 had also received a call in this regard and had reached at the spot. On 21.07.2014, on receiving information, he along with his staff and PCR van reached near B12, JJ Colony, Delhi. There, he saw that public persons giving beating to two boys. Accused Manish was having a katta in his hand. He apprehended both the accused with the help of staff and public persons and took the katta from the hand of Manish. Meanwhile, ASI Ashok Kumar alongwith other staff reached the spot from PS Kanjhawala. He handed over the custody of both the accused and the said katta to ASI Ashok Kumar. IO ASI Ashok Kumar checked the said katta and its barrel was empty. IO prepared the sketch of the said katta Ex.PW6/A. Thereafter, the said katta was seized by the IO vide seizure memo Ex.PW6/B. IO recorded statement of complainant Sanjay Singh and prepared a tehrir and handed over the same to a constable for getting the FIR registered. Thereafter, accused Manish and Ibrahim were arrested vide arrest memo Ex.PW6/C and Ex.PW6/D respectively and their personal search were conducted vide memos Ex.PW6/E and Ex.PW6/F respectively. Witness identified one country made pistol Ex.P1 which was recovered from the possession of accused Manish by him and was seized by the IO on being produced by him.
15. PW10 Ct. Lalit Kumar has deposed that on 21.07.2014, he was posted at PS Kanjhawala as Constable and on that day, he was working as DD writer from 05:00pm to 09:00am next morning ie. 22.07.2014. On that day, at about 06.05pm, he recorded DD No. 47B and at about 06.10 pm, he recorded DD no. 48B. Attested copies of the said DD entries are Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 9/26 Ex.PW10/A and Ex PW10/B respectively. He has voluntarily stated that on Ex.PW10/A, the date instead of 21.07.2014, inadvertently wrongly mentioned as 21.07.2010. photocopy of the DD register is ExPW10/C.
16. PW11 HC Raj Kumar has deposed that he started working as MHC(M) at PS Kanjhawala on 19.08.2014 and as per record, on 21.07.2014 ASI Ashok Kumar had deposited one pullanda sealed with the seal of AKB and one purse of black colour containing photocopy of the DL of complainant, Rs. 120/ cash, photograph of complainant, card of the clinic of the complainant and some other documents, in the malkhana vide entry no. 1983 in register no. 19 and at that time, HC Rajbir was working as MHC(M). The said entry bearing no.1983 was in the handwriting of HC Rajbir. He has deposed that he could identify the handwriting of HC Rajbir as he had seen him writing and signing during the course of his duty when he was taking charge of malkhana from him which took about 4 months. HC Rajbir has expired. The copy of said entry is Ex.PW11/A. On 16.09.2014, ASI Ashok Kumar deposited two live cartridges of 8mm/315 bore in the malkhana vide entry no. 2061 in register no.19 Ex.PW11/B and at that time, he was working as MHC(M). On 17.10.2014, as per the instruction of IO, he handed over the pullanda sealed with the seal of AKB along with said two live cartridges to Ct. Somdev vide RC No.157/21/14 for depositing the same in FSL Rohini. After depositing the said exhibits in FSL, Ct. Somdev returned one copy of RC alongwith acknowledgement of FSL to him. Photocopy of the RC is Ex.PW11/C and photocopy of the acknowledgement of FSL is Ex.PW11/D. He has further deposed that on 28.01.2015, Ct. Sarjeet deposited two pullandas in sealed condition alongwith the result of FSL Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 10/26 in the malkhana. The pullandas were kept by him in the malkhana and he handed over the result of FSL to ASI Ashok Kumar and made the entry in this regard in register no. 19.
17. PW13 SI Ashok Kumar has deposed that on 21.07.2014, he was posted at PS Kanjhawala and on receipt of DD No. 47B, copy of which is Ex.PW10/A, at about 06.20pm, he alongwith Constable Arun had gone to B12, Savda, JJ Colony, where, ASI Shamsher of PCR had produced two boys and a country made pistol before him. Sh. Sanjay, S/o Sh. Harpal Singh had also met him there and got his statement Ex.PW1/B recorded. He had prepared the sketch of pistol on white paper Ex.PW6/A. He had placed the said pistol into a cloth parcel which was sealed with his seal of AKB and seized the same vide memo Ex.PW6/B. He had then endorsed rukka Ex.PW13/A, below the statement of Sanjay Singh and had given it to Ct. Arun Kumar for getting the FIR registered at the police Station. He had prepared the site plan Ex.PW7/B. The complainant and both the said boys, whose names were found to be Manish and Ibrahim, had injuries on their person. After the arrival of Ct. Arun from police Station after registration of FIR, three injured persons were sent to Sanjay Gandhi Memorial Hospital, Mangolpuri for their medical examination and treatment. They all have gone to the hospital in PCR van. Prior thereto, the accused persons were arrested vide memos Ex.PW6/C and Ex.PW6/D. Their personal search were taken vide memos Ex.PW6/E and Ex.PW6/F. The accused persons had made disclosure statements Ex.PW13/B and Ex.PW13/C. A wallet containing currency notes of Rs.180/ and a photo Icard of complainant Sanjay Singh was recovered from the possession of accused Manish which Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 11/26 were seized vide memo Ex.PW7/C. The accused persons were brought to the police Station after their medical examination and put into lockup. He had recorded the statements of witnesses and deposited the case property in the Malkhana. The parcel of pistol was sent to FSL Rohini through one constable. He had got collected the report of Ballistics expert and the parcel of weapon from FSL. The challan was thereafter prepared and filed in court. Before its preparation, he had obtained sanction mark X of DCP for prosecution of the accused persons under Arms Act. He has correctly identified one country made pistol Ex P1, one leather purse of black color containing cash amount of Rs.180/ and photocopy of Driving License of Sanjay Singh and some other papers as Ex.P2 as the same which were recovered from accused Manish.
18. PW15 SI Parmeshwar has deposed that in January 2015, he was posted as a staff officer of Ms. Shweta Chauhan, then Addl. Deputy Commissioner of PoliceI, Outer District Delhi and he had seen her writing and signing in the usual course of his duties. He had seen the sanction under Section 39 Arms Act for prosecution of accused Manish for committing the offence punishable u/s 25 of the Arms Act in the file of this case. It bears the signature of Ms. Chauhan. The case file was presented before her and she had accorded the sanction Ex PW 15/A after going through the same.
MEDICAL WITNESS
19. PW12 Dr. P.C Prabhakar, CCMO, Sanjay Gandhi Memorial Hospital has deposed that he had been deputed by Dy. Medical Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 12/26 Superintendent, SGM Hospital to attend the court on behalf of Dr. Vinit Ashish and Dr. Brijesh Singh. He had seen MLC No. 13508/2014 pertaining to one Sanjay S/o Harpal, who was examined by Dr. Vinit Ashish on 21.07.2014 at 7.30 pm, with alleged history of physical assault. On local examination, one lacerated wound on right parietal region 0.5cm x 0.5cm was observed. The MLC Ex.PW12/A is in the handwriting of Dr. Vinit Ashish. He has depsoed that he could identify the signature and handwriting of Dr. Vineet Ashish as he had seen him writing and signing in the course of his official duty as he was posted at SGM Hospital since Aug 2005. Dr. Vineet Ashish has left the hospital and his present whereabouts were not known.
FORENSIC WITNESS
20. PW14 Puneet Puri, Assistant Director (Ballistics) FSL, has deposed that on 17.10.2014, one sealed parcel sealed with the seal of AKB of this case was received in FSL through Ct. Somdev and same was marked to him for examination. The seals on the parcel were intact and as per the specimen seal provided with FSL form. Two 8mm/.315 inch cartridges were received for test firing and on opening the parcel, one country made pistol of .315 inch bore was taken out and marked as Ex.F1 by him. On examination, he found that the country made pistol marked Ex.F1 was in working order. Test fire was conducted successfully by using one out of two 8mm/.315 inch cartridges, received for test firing. The country made pistol marked Ex F1 was a firearm as defined in Arms Act, 1959. The exhibit was then resealed with the seal of PP FSL Delhi. His detailed report Ex.PW14/A was signed by him on Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 13/26 both sides of report at point A.
21. Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under: Sr. PW No. Name of the Details of witnesses No. witnesses
1. PW1 HC Anand Police witness
2. PW2 Amit Haldar Public Witness
3. PW3 Ct. Pradeep Police Witness
4. PW4 HC Sunder Pal Police Witness
5. PW5 Sarafat Khan Public witness
6. PW6 Ct. Arun Kumar Police witness
7. PW7 Sanjay Singh Public witness / complainant
8. PW8 W/Ct Rekha Police witness
9. PW9 SI Shamsher Singh Police Witness
10. PW10 Ct. Lalit Kumar Police witness
11. PW 11 HC Raj Kumar Police witness
12. PW12 Dr. P.C. Prabhakar Doctor
13. PW13 SI Ashok Kumar Police witness
14. PW14 Puneet Puri Forensic witness
15. PW15 SI Parmeshwar Police witness Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 14/26 List of documents.
Sl. Exhibit No. Details of documents Name of
No. witness
1 Ex.PW1/A Copy of FIR
2. Ex.PW1/B Endorsement on rukka HC Anand
3 Ex.PW1/C Certificate u/s. 65B of Indian
Evidence Act
4 Ex.PW4/A PCR form
5 Ex.PW4/B Certificate u/s. 65B of Indian HC Sunder Pal
Evidence Act
6 Ex.P1 Country made pistol Sarafat Khan
7 Ex.PW6/A Sketch of katta
8 Ex.PW6/B Seizure memo of katta Ct. Arun Kumar
9 Ex.PW6/C Arrest memo of accused
Manish
10 Ex.PW6/D Arrest memo of accused
Ibrahim
11 Ex.PW6/E Personal search
12 EX.PW6/F Personal search
13 Ex.P2 Purse
14 Ex.PW7/A Statement of complainant Sanjay Singh
15 Ex.PW7/B Site plan
16 Ex.PW7/C Seizure memo of purse
Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 15/26
17 Ex.PW8/A PCR form W/Ct. Rekha
18 Ex.PW10/A DD no. 47B
19 Ex.PW10/B DD no. 48B Ct. Lalit Kumar
20 Ex.PW10/C Photocopy of DD register
21 Ex.PW11/A Copy of entry in register no.
19 HC Raj Kumar
22 EX.PW11/B Entry in register no. 19
23 Ex.PW11/C Photocopy of RC
24 Ex.PW11/D Photocopy of acknowledge
ment
25 EX.PW12/A MLC of complainant Dr. P.C.
Prabhakar
26 Ex.PW12/B MLC of accused Manish and
& Ibrahim
Ex.PW12/C
27 Ex.PW 13/A Endorsement on rukka SI Ashok
28 Ex.PW13/B Disclosure statement of both Kumar
& the accused
Ex.PW13/C
29 EX.PW14/A Report of FSL Puneet Puri
30 Ex.PW15/A Sanction u/s 39 Arms Act SI Parmeshwar
22. After completion of the prosecution evidence, statements of accused persons under Section 313 Cr.P.C have been recorded, wherein, they alleged that they are falsely implicated in this case and nothing Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 16/26 incriminating was recovered from their possession. It has been stated by the accused persons that when they were going to meet their common friend, the complainant hit/touched accused Manish by his motorcycle near mother dairy, Savda and thereafter an altercation took place between them and complainant being the local resident of that area, in connivance with some other residents, falsely implicated them in the present case. Police had made them to sign number of blank sheets which were later on converted into various memos and weapon has been planted on accused Manish.
23. I have heard the arguments of Ld.Addl. PP for the State and Ld. defence counsel for the accused persons and have gone through the record carefully.
24. Ld. Addl. PP for State has mainly argued that the prosecution has proved its case beyond all shadow of reasonable doubts by leading cogent and convincing evidence. The prosecution has been able to prove that accused persons committed robbery of gold chain and purse of complainant and accused Manish was having country made pistol and also caused head injuries to complainant with the butt of said country made pistol. The prosecution witnesses have been able to prove the recovery of country made pistol Ex.P1 and purse Ex.P2 from the possession of accused Manish. PW2, PW5, PW7 and PW9 have corroborated one another and fully supported the case of the prosecution. The two PCR calls were made by PW2 and PW5, when the accused persons were running after committing robbery and the said calls made by these witnesses are admissible u/s 6 of Indian Evidence Act. Both Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 17/26 accused persons were apprehended on the spot and beaten by public. MLC of accused Manish and Ibrahim Ex.PW12/B & EX.PW12/C corroborate the case of the prosecution qua the beatings given to both accused persons by public. The purse Ex.P2 was recovered from the possession of accused Manish on the spot and same cannot be said to be planted upon him. It has been argued that PW14 proved his report EX.PW14/A, wherein he opined that country made pistol i.e EX.P1 is a firearm as defined in Arms Act 1959 and PW15 proved the requisite sanction u/s 39 Arms Act. As such, accused Manish is also liable to be convicted u/s 25 & 27 of Arms Act. It has been argued that the testimonies of PWs are reliable, cogent and convincing and there is no material discrepancy or inconsistency in their deposition and hence all the accused are liable to be convicted for commission of offences with which they have been charged with.
25. It has been argued by Ld. Counsel for accused persons that in the present case no incriminating corroborative evidence is brought on record by the prosecution. There are discrepancies in the statement of prosecution witnesses and especially there are material discrepancies in the statement of PW5 and PW9. Ld. defence counsel has disputed the recovery of country made pistol on the ground that country made pistol is shown to have been snatched by PW5 from accused Manish but he is not witness to the seizure memo of said country made pistol, which creates a serious doubt on the recovery of country made pistol. It has been argued that PW9 deposed that he snatched the katta from the hand of accused Manish whereas PW5 deposed that he snatched the katta from accused Manish. This is a material contradiction which makes the prosecution Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 18/26 case doubtful. It has been argued that country made pistol was planted upon accused Manish.
26. It has also been argued by Ld. Counsel for accused Manish that Section 397 IPC is not applicable to the facts of the present case as there are lack of proof of necessary ingredients of Section 397 IPC and the necessary ingredient of offence under Section 397 IPC are not attracted against accused Manish. It has been further argued that even the recovery of country made pistol from accused Manish has not been proved by the prosecution. Accused persons are not involved in the alleged incident and they have been falsely implicated in the present case by the police. Nothing incriminating material has been recovered from the possession of accused persons. It has been requested that both accused persons may be acquitted.
27. In order to prove its case, the prosecution has primarily relied upon the testimony of PW2, PW5, PW7 and PW9.
28. In the present case, PW7/complainant has clearly stated that both accused persons entered his clinic, accused Ibrahim caught hold of his neck with one hand and snatched his gold chain. Accused Manish hit the butt of country made pistol on his head due to which he sustained head injury. Thereafter, both accused fled away from his clinic. He also came out from his clinic and chased accused persons to a short distance, raising alarm and thereafter both accused were apprehended and beaten by the public persons. The testimony of PW7 is also corroborated by PW2 to the effect that after coming out of his office, PW7 raised alarm, Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 19/26 public persons caught hold of both the accused persons. PW2 deposed that a country made pistol was recovered from one of the said two boys. PW 2 also made call at number 100 which has been proved by PW8 vide PCR form Ex.PW8/A.
29. The testimony of PW7 is also corroborated by PW5 who saw both the accused persons running. PW5 proved that accused Manish was having country made pistol with him. He also called at number 100 which has been corroborated by PW4/HC Sunder Pal who proved PCR call Ex.PW4/A. The testimony of PW2, PW5 and PW7 is also corroborated by PW9 SI Shamsher Singh who was posted as ASI at PCR on 21.07.2014 and he saw public persons chasing the accused persons and giving beatings to them. PW9 deposed that accused Manish was having a katta in his hand. He is the first police official who reached at the spot alongwith PCR staff and apprehended the accused with the help of staff and public persons and took the katta from the hand of accused Manish. On reaching PW13/ASI Ashok Kumar at the spot, PW9 handed over the custody of both accused and said katta to him. The testimony of PW9 qua handing over accused persons to PW13 is corroborated by PW6. PW12 Dr. P.C.Prabhakar proved the MLC Ex.PW12/A of PW7/complainant who corroborated this fact that PW7 received head injuries on right parietal region.
30. Both the public witnesses PW2 and PW5 and police officials PW6, PW9 and PW13 corroborated the prosecution case and have correctly identified both accused persons.
31. It has been argued by Ld. Counsel for accused persons that there are Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 20/26 discrepancies in the statement of prosecution witnesses and especially in the statement of PW5 and PW9.
32. I have carefully examined the deposition of all the material prosecution witnesses. Perusal of testimonies of PW2, PW5, PW6 & PW9 shows that all these prosecution witnesses corroborated the version of PW7 on the date and time of incident, manner in which accused persons were apprehended and beaten by the public when they were running after committing robbery on the person of complainant/PW7. These witnesses in court, have also identified both accused persons namely Manish and Ibrahim. PW5, PW7 and PW9 have categorically stated that accused Manish was having country made pistol in his hand, when he was apprehended by the public. The testimony of PW7/complainant is natural and consistent and nothing could be elicited from him during his crossexamination to shake his credit worthiness.
33. Ld. defence counsel has disputed the recovery of country made pistol on the ground that country made pistol is shown to have been snatched by PW5 from accused Manish but he is not witness to the seizure memo of said country made pistol, which creates a serious doubt on the recovery of country made pistol. It has been argued that PW9 deposed that he snatched the katta from the hand of accused Manish whereas PW5 deposed that he snatched the katta from accused Manish. This is a material contradiction which makes the prosecution doubtful. It has been argued that country made pistol was planted upon accused Manish.
Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 21/26
34. It has also been argued by Ld. Counsel for accused Manish that Section 397 IPC is not applicable to the facts of the present case as there is lack of proof of necessary ingredients of Section 397 IPC and the necessary ingredients of offence U/S 397 IPC are not attracted against accused Manish. It has further been argued that even the recovery of country made pistol from accused Manish has not been proved by the prosecution.
35. I do not find any merit in the arguments raised by Ld. Counsel for defence as to the applicability of Section 397 IPC and the alleged lack of proof of necessary ingredients as what is essential to attract the ingredients of Section 397 is that the robbery being committed by an offender who was armed with deadly weapon which was within the vision of the victim, so as to be capable of creating a terror in the mind of victim. In the present case, PW7 categorically deposed that accused Manish was the person who inflicted injuries on his head with the butt of said country made pistol while committing robbery which was recovered from the possession of accused Manish on the spot and his testimony qua recovery of said country made pistol further stands corroborated by PW2, PW5 and PW9 and other evidence on record.
36. As such, it is clear on record that PW7 has specifically stated that accused Manish used country made pistol during commission of robbery. PW2, PW5 and PW9 proved recovery of country made pistol from possession of accused Manish. PW7 has identified country made pistol EX.P1 as the same weapon used by accused Manish during commission of robbery. So, in view of above, it has proved on record Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 22/26 that accused Manish had used country made pistol at time of commission of robbery. The plea taken by Ld. Counsel for accused persons is liable to be rejected.
37. It has also been argued by Ld. Defence Counsel that as per testimony of PW5, when he had seen accused persons running, he raised alarm and asked the boys who were playing cricket in nearby park to apprehend the accused persons and thereafter they were apprehended. But these boys have not been cited as witnesses which again creates a serious doubt on the prosecution case.
38. As a matter of fact, these boys have not been cited as witnesses but it does not make the prosecution case doubtful in any manner, especially when two other public witnesses i.e PW2 and PW5 have fully supported the case of the prosecution and duly identified both accused persons.
39. The accused persons have come out with the defence that they are not involved in the alleged incident and they have been falsely implicated in the present case by the police. Nothing incriminating material has been recovered from the possession of accused persons.
40. The defence has completely failed to prove its case. The accused persons either by way of crossexamination of the prosecution witnesses or by way of raising the defence have completely failed to discredit and demolish the case of the prosecution. I do not find any merit in the argument raised by Ld. Counsel for accused persons that accused persons have been falsely implicated in the present case as the accused Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 23/26 persons have failed to place on record any material to show as to why police officials would falsely implicate accused persons. If accused persons want this court to believe that they have been falsely implicated in the present case, they should have placed on record some material as to show, what could have been the motive of the police for their false implication. In absence of any such material/ evidence, this court can not believe the plea taken by ld. Defence counsel during the course of arguments.
41. So, there is no reason to disbelieve the testimony of complainant/PW7 especially when his testimony is corroborated by other material evidence. Nothing has come on record to discredit his testimony so as to make him unreliable. Also there is no enmity between injured and accused so, there is no reason for complainant to falsely implicate the accused persons and let go his actual assailants. His testimony is, therefore, sufficient to come to the conclusion that it was accused Manish and Ibrahim, who committed robbery and it was accused Manish, who inflicted injuries on the person of complainant/PW7 with the butt of country made pistol.
42. It has also been established on record that both accused persons were apprehended and beaten by public. MLC of accused Manish Ex.PW12/B and MLC of accused Ibrahim Ex.PW12/C corroborate the case of prosecution qua the beatings given to both the accused persons by the public. The prosecution has established the identity of both accused persons and recovery of country made pistol Ex.P1 and one purse of complainant/PW7 Ex.P2 from accused Manish at the spot is also Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 24/26 proved. However, the robbed gold chain is not recovered from any of the accused persons, but nonrecovery of said gold chain does not make the prosecution case doubtful.
43. In view of above discussions and testimonies of prosecution witnesses, it is manifestly clear that on 21.07.2014, PW7 Sanjay Singh was robbed of one gold chain and a purse by accused persons, out of which, gold chain was not recovered but the purse of the complainant was recovered from the possession of accused Manish at the spot. Both accused persons had committed robbery against complainant (PW7) in which accused Manish used country made pistol and caused head injury to PW7/complainant. Considering the role played by accused persons, the manner and circumstances under which robbery is shown to have been committed, there is no scope of doubt that both accused persons were sharing common intention to commit the offence of robbery. I am convinced that prosecution has been able to establish the charges under section 392/34 IPC and 394 IPC against both the accused persons.
44. The charge under section 397 IPC also stands proved against accused Manish in view of testimony of PW7 who categorically deposed on the lines of prosecution case that accused Manish was the person who inflicted injuries on his head with the butt of country made pistol.
45. In view of the above, accused Manish and Ibrahim are convicted for the offences punishable under Section 392/394/452/34 IPC.
Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 25/26
46. Accused Manish is also convicted for the offence punishable under Section 397 IPC and 25/27 of Arms Act.
47. Let both the convicts be heard on the quantum of sentence.
Digitally signed by RAJ RANI RAJ RANI Date: 2019.01.11 16:03:57 +0530 Announced in the open court (Raj Rani) th on 10 January 2019 Addl. Sessions Judge04(NorthWest) Rohini Courts, Delhi. Sate Vs Manish etc FIR No. 560/14 PS Kanjhawala page no. 26/26