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Delhi District Court

State vs . Mukesh @ Rajesh on 6 February, 2016

                                           1



                          In the Court of Dig Vinay Singh
               ASJ/Special Judge : NDPS (N­W) : Rohini Courts : Delhi

     In the matter of  : 

                                    SC No.          22/14
                                    State Vs.       Mukesh @ Rajesh
                                    FIR no.         392/13
                                    PS              Keshav Puram
                                    U/s             365/392/397/394/34 of IPC 
                                                    Sec. 25 &  Arms Act, 1959

           State 

                    Versus 

           Mukesh @ Rajesh 
           S/o Sh. Sumer Singh
           R/o B­100, Saraswati Enclave, Sector­10,
           Gurgaon, Haryana.

           Permanent Add. : Village Sakhroad, P.S Bond
                            Distt. Bhiwani, Haryana. 


                                    Date of receipt           :  26.03.2014  
                                    Date of arguments         :  06.02.2016
                                    Date of announcement  :  06.02.2016


                                     JUDGMENT

1. The sole above named accused was sent for trial U/s 365/392/397/394/34 of IPC as also U/s 25 & 27 of Arms Act, 1959.

The allegations against him are that he along with his three more associates, who could not be apprehended till now, abducted the complainant and his friend; robbed them on knife & gun point; caused injuries to them during robbery and then left them, on the night of 26.11.2013.

1.1 The story of prosecution is, that complainant Sunil Kumar and his friend Vikas Aggarwal both were employed in some BPO in Noida and they returned at 3.00 AM in the night on the night intervening 25th & 26th of November, 2013. They left their Cab at near Keshav Puram Metro Station and started walking towards their house. Three offenders alighted from a car and put a pistol and a knife on Vikas Aggarwal and also caught hold of the complainant Sunil Kumar. From the pocket of Sunil Kumar, his purse and his mobile were removed. Sunil Kumar and Vikas Aggarwal both were made to sit in the car of the offenders, which was being driven by fourth offender, on the point of knife and pistol. The bags carried by complainant and his friend were checked. From the bag of complainant, his credit card & debit card were taken, and Rs. 500/­ were removed from his purse. The offenders enquired the PIN number of ATM Card of HDFC Bank of the complainant. When the complainant did not disclose it, he was assaulted. Complainant and his friend both were taken by the offenders in their car and ultimately left somewhere in Badli. But prior to it, when the complainant did not disclose the ATM PIN, with the SC no. 22/14 Dtd... 06.02.2016 Page 2 of 32 3 help of a knife, he was assaulted. One Laptop of DELL company belonging to the complainant was also taken away. The two mobile phones of the complainant and his friend, of make SAMSUNG, were also robbed, before they were left at Badli. After the complainant and his friend were abandoned at Badli, they noticed one PCR Van and told the PCR officials about the incident. PCR officials took the complainant and his friend to BSA hospital. At the hospital, SI Ashok from police station Badli reached. SI Ashok enquired from the complainant and learnt that the complainant and his friend were abducted from Keshav Puram, and then they were taken to police station Keshav Puram where complaint of Sunil Kumar was taken down and the present case was registered.

1.2 During investigation, it was learnt that the debit card of the complainant was used twice, after the complainant was robbed, for refueling some car. The card was found to have been used at two different petrol pumps one at Batra Oil Company and another at Om Service Station, both located near Singhu Border on GT Karnal Road. Investigating officer collected the receipts qua use of the debit card at those two petrol pumps on the night after robbery. From Om Service Station, CCTV footage was also collected, but it was not clear footage. The receipts revealed that the person who refueled the car by using the debit card of the complainant signed the receipts in the name of complainant Sunil. Mobile phones of the complainant SC no. 22/14 Dtd... 06.02.2016 Page 3 of 32 4 and his friend were kept on surveillance, but nothing resulted therefrom.

1.3 However, during investigation, on 28.11.2013 accused Mukesh was apprehended based on secret information from Budh Vihar, Phase­1 at 4.00 PM. At that time, accused was carrying one country made pistol and two live cartridges. He was arrested. The accused disclosed that the vehicle used in the crime was Toyota Etios Car and that the said car was also a robbed vehicle, robbed from the jurisdiction of police station Dwarka. It was learnt that the said car was robbed from Dwarka Sector­9 and regarding it FIR no. 490/2013 was registered at police station Dwarka on 14.11.2013. The actual car number was learnt to be DL 7C G 7844. It may be mentioned that at the time when this vehicle was used for robbing the complainant and his friend, there was a forged number plate of Haryana number on the said car.

1.4 During investigation, accused Mukesh refused to participate in Test Identification Parade. Subsequently, he was identified by the complainant and his friend in police custody. The accused was identified as the person who was driving the car at the time of incident. The accused was also identified as the person who stabbed the complainant at Badli after the car was stopped, and before the complainant and his friend were abandoned. The accused disclosed that the registration certificate of the offending Etios Car was thrown SC no. 22/14 Dtd... 06.02.2016 Page 4 of 32 5 in bushes near Kundli at Singhu Border and got the said registration certificate recovered. It may however be mentioned that the said car could not be recovered. No robbed article was recovered from the possession of this accused. After filing of chargesheet, mobile phone of one of the victim was however found abandoned. 1.5 During investigation, the pistol and live cartridges were sent to the FSL and the FSL authorities opined that the pistol was a 'firearm' and the cartridges were live and within the definition of 'ammunition', as defined in the Arms Act, 1959. Requisite Sanction U/s 39 of Arms Act was obtained. The other three offenders could not be apprehended.

1.6 On completion of investigation, chargesheet was filed against accused Mukesh.

2 Accordingly, a charge U/s 365/392/394/34 of IPC; U/s 397 of IPC and; U/s 25 & 27 of Arms Act, 1959 was framed against the accused. The accused pleaded not guilty to the said charges and claimed trial.

3 In support of its case, prosecution examined total 16 witnesses. 3.1 Out of the 16 witnesses examined by the prosecution, the complainant Sunil Kumar Singh is examined as PW1 and, his friend and victim Vikas Aggarwal is examined as PW3. The investigating officer SI Deepak Bhardwaj is examined as PW14 and, Ct. Virender who joined the investigating officer during SC no. 22/14 Dtd... 06.02.2016 Page 5 of 32 6 investigation is examined as PW12. Rest of the witnesses are more or less formal in nature.

3.2 PW2 Dr. Deepti Bhalla examined complainant Sunil Kumar vide MLC Ex.PW2/A. On the body of Sunil Kumar, three incised wounds, a superficial cut, and three abrasions were noticed. The injuries were opined to be simple. This witness also deposed that blood stained shirt of the injured was taken into possession by the hospital authorities and was sealed with the seal of hospital which was handed over to the investigating agency.

3.3 PW4 HC Suresh Chand, got the FIR of the present case registered as Ex.PW4/A and made endorsement on the rukka Ex.PW4/B. 3.4 PW5 HC Daya Shankar was the incharge of the PCR Van who met the victims at in front of Rohini Jail, Badli and took them to hospital and also informed the PCR Headquarter about the fact. 3.5 PW7 HC Bhagwan Singh lodged DD no. 11A at police station S.P. Badli when information about the incident was received in the police station S. P. Badli from PCR Headquarter after PW5 informed the PCR Headquarter after he met the victims in front of Rohini Jail, S.P.Badli. The DD no. 11 is proved as Ex.PW7/A & A­1. 3.6 PW9 HC Raj Kumar was the Malkhana Moharrar of police station Keshav Puram, who proved deposition of case property in the malkhana, i.e. the blood stained shirt of the complainant, and the pistol and cartridges, which were deposited on 26.11.2013 and SC no. 22/14 Dtd... 06.02.2016 Page 6 of 32 7 28.11.2013 vide Ex.PW9/A & B, respectively. He also deposed that on 20.12.2013, the firearm and ammunition were sent to FSL, Rohini through Ct. Virender (PW12) vide Ex.PW9/C & D. He also deposed about receipt of the FSL result.

3.7 PW11 SI Ashok Kumar deposed that he reached hospital on receipt of DD no. 11A; met the victims at the hospital; and when he learnt that abduction and robbery took place at Keshav Puram, he took the victims to police station Keshav Puram.

3.8 PW13 Sh. Bhupender Singh, Ld. Metropolitan Magistrate conducted the TIP proceedings of accused Mukesh on 29.11.2013, during which the accused refused to participate in TIP despite caution by the Magistrate, vide Ex.PW13/A & B. 3.9 PW15 Ms. Kala Venkat from HDFC Bank, Greater Kailash proved the details of Savings Bank Account and debit card of complainant Sunil, establishing that the debit card of the complainant was used twice on 26.11.2013, at Om Service Station and Batra Oil Company. 3.10 PW16 SI Amit proved the Sanction U/s 39 Arms Act, 1959 qua the 'firearm' and 'ammunition' used and recovered from the possession of accused Mukesh.

3.11 PW6 Satya Pal Singh from Om Service Station simply exhibited receipt Ex.PW6/A, which was generated when the debit card of the complainant was used at the said petrol pump for refueling the vehicle. The witness also deposed that the fuel was taken in a car SC no. 22/14 Dtd... 06.02.2016 Page 7 of 32 8 bearing registration plate HR 26 Z 3822 and that CCTV footage of the time of refueling was also supplied to the investigating officer in a CD Ex.PW6/C. No certificate U/s 65B of Evidence Act has been proved qua the CCTV footage. Even otherwise, the said CCTV footage was not clear enough to establish the identity of offenders. So far as the receipt Ex.PW6/A is concerned, even the said receipt was not generated in presence of this witness and the witness was unable to tell as to who wrote the vehicle number on the receipt, and he was not physically present when the vehicle was got refueled. Admittedly, this witness did not see the present accused at the petrol pump. The receipt bears signature of the customer in the name of Sunil, but then the investigating agency did not choose to obtain the specimen writing and signatures of the accused and did not send them for comparison to the hand writing expert and therefore, there is no link to establish that the accused Mukesh was present at the refueling station when the debit card of the complainant was used in the early morning hours of 26.11.2013 after the robbery.

3.12 PW10 Jugal Batra also deposed that the original receipt of debit/credit card used was handed over to the investigating agency, qua use of the debit card of the complainant at 03:55:26 hours on 26.11.2013 against card no. 8329. The vehicle in which fuel was taken was bearing number plate HR 26Z 3822 and that one Sunil SC no. 22/14 Dtd... 06.02.2016 Page 8 of 32 9 signed the receipt at point A on Ex.PW10/B. From this petrol pump, CCTV footage could not be retrieved.

Admittedly, even in the presence of this witness the card was not used. This witness did not see the accused at the petrol pump. Even the signature of Sunil on this receipt Ex.PW10/B were not sent for comparison with the specimens of the accused and therefore, the testimony of even this witness does not establish presence of accused at the petrol pump while the robbed card of the complainant was used.

3.13 PW8 Ct. Jagjeet accompanied SI Deepak and Ct. Virender when accused was apprehended on 28.11.2013 and from his possession country made pistol and live cartridges were recovered. This witness deposed about the apprehension of accused and the recovery, and he identified the accused and the arms & ammunitions in the court and his signatures on the memos.

3.14 PW12 Ct. Virender also joined the investigation of this case on 27.11.2013 when he served notices U/s 91 Cr.P.C to the concerned persons from the two petrol pumps qua the use of the debit card of the victim. This witness was also a witness to the arrest and recovery of pistol and cartridges from accused Mukesh on 28.11.2013. The witness also was a witness to the recovery of registration certificate of the car on 1.12.2013 at the instance of accused and he identified the case property and the accused as well SC no. 22/14 Dtd... 06.02.2016 Page 9 of 32 10 as his signatures on the memo. This witness also took the firearm and ammunition from the malkhana to FSL, Rohini on 20.12.2013 vide road certificate, and then obtained acknowledgment receipt from the FSL.

3.15 PW14 SI Deepak Bhardwaj was the investigating officer of this case who deposed that when the complainant and his friend along with SI Ashok came to police station Keshav Puram in the night of 25 th & 26th November 2013, and the complainant gave his statement. He got the FIR registered and took up the investigation. The blood stained shirt of the complainant, duly sealed, was brought by SI Ashok from the hospital, which he took into possession vide memo Ex.PW11/A. He prepared siteplan Ex.PW14/B; collected the documents qua use of debit card of the complainant from the concerned petrol pumps and; obtained the CCTV footage from one of the petrol pumps. Thereafter, the accused was arrested on 28.11.2013 at 4.00 PM from Budh Vihar, Phase­1 and from his possession, one country made pistol and two live cartridges Ex.P­1 & P­4 and P­5 were recovered. Sketch of the pistol and cartridges, Ex.PW8/A, was prepared and they were sealed with his seal and taken into possession vide memo Ex.PW8/B. The accused was arrested vide memo Ex.PW8/C. He made disclosure statement which was noted down. During investigation, the accused was put to TIP but he refused to undergo TIP and he was subsequently identified by the SC no. 22/14 Dtd... 06.02.2016 Page 10 of 32 11 victims in the police station during police custody. Pursuant to disclosure statement of the accused, the registration certificate of the offending vehicle Ex.PW12/C was recovered on 1.12.2013 from Kundli village, Singhu border, vide seizure memo Ex.PW12/B. The FSL result is also proved as Ex.PW14/D, vide which the ballistic expert opined that the country made pistol and cartridges recovered from the accused Mukesh were 'firearm' and 'ammunition' within the definition provided in the Arms Act, 1959. The witness also deposed that after filing of the chargesheet, the mobile of Vikas Aggarwal was recovered from somewhere lying abandoned, by Ct. Virender. 3.16 The complainant PW1 Sunil Kumar Singh and PW3 Vikas Aggarwal, both supported the case of prosecution in Toto. Both of them deposed that on night intervening 25th & 26th November 2013, when they were proceeding on foot towards their house in Keshav Puram after they alighted from a Cab, three offenders came and pointed knife and gun and both of them were bundled into one car which was driven by the accused Mukesh. Both of them were robbed of their mobile phones make SAMSUNG; the laptop of complainant PW1 and; his purse containing money as well as ATM card of HDFC Bank and credit card of the same bank were robbed. The accused and his associates were asking the PIN number of the ATM card, but when the complainant did not disclose the PIN number, he was assaulted by the accused and his associates. It is specifically SC no. 22/14 Dtd... 06.02.2016 Page 11 of 32 12 deposed by this witness that the witnesses were taken in the offending car and then at Badli the car was stopped, where this accused Mukesh came and assaulted Sunil with a knife as he got annoyed because Sunil did not disclose the PIN number of the ATM Card. Both these witnesses specifically identified accused Mukesh in the court as the same person.

4 On completion of prosecution evidence, all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C. The accused generally denied the evidence against him and claimed that he was picked up by the police from Tis Hazari Court on 26.11.2013 where he had come to attend a date of hearing; nothing was recovered from his possession and; no other article was got recovered by him from anywhere. Accused claimed that he is an innocent man and he has been implicated falsely. However, accused did not come out with any reason as to why he would be falsely implicated by the witnesses of this case. No reason is imputed against any witness which could have acted as a motive for the witnesses to have deposed against the accused falsely, particularly, the public witnesses Sunil and Vikas. The accused did not opt to lead any evidence in his defence.

5 I have heard Ld. Amicus Curiae for the accused and Ld. Prosecutor for the State.

6 It is argued by the Ld. Amicus Curiae for the accused that PW1 Sunil SC no. 22/14 Dtd... 06.02.2016 Page 12 of 32 13 Kumar & PW3 Vikas Aggarwal, during their cross examination admitted that it was night time and dark when the incident took place and therefore identity of accused is not established in this case beyond doubt. It is also argued that no robbed property was recovered from the accused which could connect the accused with the crime.

7 As mentioned above, admittedly no robbed article could be recovered from the possession of this accused or at his instance. The laptop, the debit card, the credit card, the purse or, the mobiles were not recovered from accused or anywhere else. One mobile phone of Vikas was found abandoned somewhere after this accused was chargesheeted. The offending vehicle in which the robbery took place has also not been recovered in this case. Admittedly, the offending vehicle was bearing a forged number plate of Haryana number, at the time of incident, whereas it was a robbed car from Delhi with Delhi registration number. Vikas and Sunil could not note down the vehicle number from the number plate at the time when the vehicle was used in robbery. In any case, it was bearing a forged number plate. In absence of recovery of that vehicle, the vehicle could not be physically identified during evidence by Vikas and Sunil. However, the said vehicle was identified by PW1 & PW3 through photographs of the offending vehicle as Ex.PW1/B1 to B6. These photograph Ex.PW1/B­1 to B­6 are photographs obtained by the SC no. 22/14 Dtd... 06.02.2016 Page 13 of 32 14 CCTV cameras installed at one of the petrol pumps from where fuel was taken by the offenders. In these photographs, though the number plate of the car is not legible and the person sitting inside the car are also not visible, but these photographs are clear enough to enable PW1 & PW3 to identify the car in the photographs. In such circumstances, even if for the sake of arguments the recovery of registration certificate of the offending vehicle bearing no. DL 7C G 7844 at the instance of this accused is taken as unrebutted, the same cannot establish the identity of the vehicle used during the robbery of this case. Whether the registration certificate of the above mentioned vehicle was recovered at the instance of present accused or not, need not be gone into by this court since, it would be a fact required to be established by the prosecution in the said case of robbery of car under FIR no. 420/13 of police station Dwarka South. 8 Turning to the CCTV footage and the debit/credit card receipts recovered from the two petrol pumps, as mentioned above the CCTV footage could be collected from one of the petrol pumps only. Even that CCTV footage was admittedly not clear enough to establish the identity of this accused Mukesh or his associates or the identity of the car. No certificate U/s 65B of Indian Evidence Act qua the said CCTV footage was obtained from the Om Service Station or has been proved. PW6 Satya Pal Singh during his cross examination admitted that he did not retrieve or supply the footage from the SC no. 22/14 Dtd... 06.02.2016 Page 14 of 32 15 cameras installed at the pump. He deposed that investigating officer obtained the CCTV footage in some pen drive and then it was copied in CD. That pen drive was obtained from one Rajender Singh Handa, the accountant of Om Service Station. But Rajender Singh Handa neither gave any certificate U/s 65B of Indian Evidence Act, nor he was examined. Therefore, the said CCTV footage is of no help to the prosecution. Who obtained the footage in the pen drive from the CCTV Camera DVDR, is not even known.

8.1 So far as the two receipts qua use of debit/credit card are concerned, admittedly qua those receipts only two witnesses were examined by the prosecution i.e. PW6 Satya Pal Singh from Om Service Station, and Jugal Batra from Batra Oil Company. Admittedly these two witnesses were not present at the petrol pump when the robbers used the debit card of complainant after robbery for refueling of the car. Those receipts were not generated in presence of these witnesses. These witnesses were therefore not even in a position to identify whether accused Mukesh was even present as driver or passenger in the offending car when it was refueled by using the robbed debit card of the complainant. Prosecution did not obtain specimen writing or signature of accused Mukesh to be sent for comparison with the so called hand writing/signature on the two receipts.

8.2 Therefore, from the testimonies of these witnesses or from the SC no. 22/14 Dtd... 06.02.2016 Page 15 of 32 16 receipts or from the CCTV footage, the identity of this accused Mukesh as the one who used the robbed card for refuelling does not stand established.

9 That leaves us with the ocular versions of PW1 Sunil Kumar and PW3 Vikas Aggarwal only. In absence of recovery of any robbed article, the ocular testimony of PW1 Sunil Kumar and PW3 Vikas Aggarwal qua the identity of this accused needs to be established convincingly.

9.1 Ld. Amicus Curiae for the accused has laid a lot of emphasis on the point that there was dark at the time of robbery and therefore the witness could not have seen the accused and their identification qua this accused cannot be relied upon, satisfactorily. 9.2 Before deciding the veracity of PW1 Sunil Kumar and PW3 Vikas Aggarwal, let it be mentioned that PW1 Sunil Kumar was injured in the incident of robbery with him. His MLC has been proved by the doctor concerned i.e. PW2 Dr. Deepti Bhalla. In the MLC of complainant, incised injuries were also found. Though the nature of injuries was opined simple by the concerned doctor, but the three incised wounds present over lateral aspect of the left upper arm corroborates the ocular version of PW1 Sunil Kumar and PW3 Vikas Aggarwal who claimed that the present accused Mukesh stopped the vehicle at Badli; came out of the car from driver's seat and; assaulted Sunil for not disclosing the PIN number, with the help of a knife, on SC no. 22/14 Dtd... 06.02.2016 Page 16 of 32 17 his shoulder. Presence of injuries on PW1 Sunil Kumar establishes the fact that he was indeed present at the place of incident. Testimony of an injured witness has a special status in law. 9.3 In the case of Mano Dutt v. State of U.P., (2012) 4 SCC 79 at page 90 it is held as follows;

"31. We may merely refer to Abdul Sayeed v. State of M.P. [(2010)

10 SCC 259 : (2010) 3 SCC (Cri) 1262] where this Court held as under: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] , Appabhaiv. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559] , Bonkya v. State of Maharashtra[(1995) 6 SCC 447 : 1995 SCC (Cri) 1113] , Bhag Singh [Bhag SC no. 22/14 Dtd... 06.02.2016 Page 17 of 32 18 Singh v. State of Punjab, (1997) 7 SCC 712 : 1997 SCC (Cri) 1163] , Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] , Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v.State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube well. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established SC no. 22/14 Dtd... 06.02.2016 Page 18 of 32 19 in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 :

(2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and SC no. 22/14 Dtd... 06.02.2016 Page 19 of 32 20 discrepancies therein."

To the similar effect is the judgment of this Court in Balraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] ."

9.4 Even otherwise, there was no reason for PW1 Sunil Kumar and PW3 Vikas Aggarwal to falsely depose against anybody qua the incident of robbery. The fact that the robbed debit card of Sunil was used twice for Rs. 1000/­ each transaction in refueling of the car also gets established from the statement of account of Sunil which has been proved by the bank official. The said fact also corroborates the testimony of Sunil that he was robbed of his debit/ATM card and other articles on the date of incident. The testimony of PW1 Sunil Kumar and PW3 Vikas Aggarwal also gets corroborated by the PCR official PW5 HC Daya Shankar who met these two witnesses at Badli and, when these two witnesses told about the incident, took the injureds to hospital. There is no delay in disclosing about the incident by these witnesses. They disclosed about the incident at the very first instance to the PCR official and also to SI Ashok from police station S. P. Badli.

9.5 Thus, this court has no reason to disbelieve the version of PW1 Sunil Kumar and PW3 Vikas Aggarwal that they were robbed by the four persons and they were abducted from Keshav Puram and then they were left at Badli, but only after being assaulted. Both these witnesses categorically identified the accused Mukesh as the person who was driving the vehicle when they were abducted and robbed SC no. 22/14 Dtd... 06.02.2016 Page 20 of 32 21 and as the person who stabbed PW1 Sunil Kumar. When suggestion was given to PW1 Sunil Kumar that he identified the accused at the instance of investigating officer, he categorically denied that suggestion. Though in his cross examination, PW1 Sunil Kumar stated that at the place where offenders surrounded him, it was complete dark, but he qualified that statement by stating that there was street light at that place, though it was dim. Though, Sunil also admitted that the light inside the car was not ON when they were taken by the offenders in the car, and also the place where they were dropped by the offenders was dark, but from those answers it cannot be taken that PW1 Sunil Kumar was unable to see any of the offenders clearly. It is an admitted case that after PW1 Sunil Kumar and his friend were abducted, they were taken in the car to different places and then finally left at Badli. It is a matter of common knowledge that on the roads of Delhi, there are street lights. Even otherwise, on the roads vehicles were moving and particularly when vehicles from the opposite direction crosses another vehicle, headlights of the vehicle crossing, indeed gives sufficient illumination within a car to see co­passengers. In the present case, accused Mukesh was driving the car, PW1 Sunil Kumar and PW3 Vikas Aggarwal were made to sit on the backseat of the car with two offenders sitting on their side towards the door of the car, fourth offender was on the front passenger seat. The victims were picked SC no. 22/14 Dtd... 06.02.2016 Page 21 of 32 22 up from near Keshav Puram Metro Station. The road there was sufficiently broad. Then they were taken through some unknown route till Badli. Badli falls after crossing the inner ring road as well as outer ring road of Delhi. Both inner and outer ring road of Delhi have sufficient traffic moving 24 hours. If one passes through these areas at any time in the night and even if the cabin light of the car is kept Off, one can easily see the faces of other passengers in a car. Admittedly, both the victims remained with the offenders of this case for more than half an hour after they were abducted from Keshav Puram and then dropped at Badli. Therefore, it is not a case where victims had a fleeting glimpse of the offenders. The circumstances of this case in which the victims were bundled into the car on the basis of deadly weapons, then were taken to different places and throughout this process PIN number was asked from the victims, gave sufficient opportunities to both these witnesses to clearly see, recognize and remember the physical description and faces of the offenders. As per PW1 Sunil Kumar and PW3 Vikas Aggarwal, it was this accused Mukesh who got annoyed on the PIN number not being disclosed by Sunil and then he stopped the car at Badli; came out of the car; took the knife and; stabbed Sunil. Thus, Sunil as well as Vikas both had more than sufficient time and opportunity to recognize this accused. In the facts & circumstances of this case, TIP was not even required. Both the victims have categorically SC no. 22/14 Dtd... 06.02.2016 Page 22 of 32 23 identified Mukesh as the person who was one of the offenders and this court does not find anything in the testimony of these witnesses to term the identification of Mukesh as unreliable. This court also does not find anything in the testimony of these two witnesses in any manner making the case of prosecution suspicious. 10 There are some contradictions in the testimony of these witnesses, but none of those contradictions go to the root of the matter. Which offender caught which of the victim and which offender pointed out which of the weapon at the time of robbery are trivial contradictions. One must understand that if a person is robbed on the basis of deadly weapons at such odd hours in night, the victims are bound to get nervous and those nervous witnesses cannot be expected to meticulously remember who caught hold of whom and which weapon was used by which offender, at the time of abduction/robbery. 11 There cannot be any doubt as to the identity of Mukesh for the reason that even though he was not present outside the vehicle when the victims were bundled into the vehicle and he was driving the vehicle at that time, but it was this accused who inflicted knife injuries on Sunil at Badli.

12 PW1 Sunil Kumar has clarified that when they were bundled into the car, it appeared to him that the car was Logan car, but it was subsequently learnt that the car used was Toyota Etios Car. 13 There is no reason for PW1 Sunil Kumar and PW3 Vikas Aggarwal to SC no. 22/14 Dtd... 06.02.2016 Page 23 of 32 24 falsely depose against accused Mukesh or to falsely identify him. 14 The answer of PW3 Vikas that police officials from police station Keshav Puram came to the hospital cannot affect the case of prosecution at all, since it does not matter whether Vikas was able to remember correctly that the police official who came to the hospital was from Badli and not from police station Keshav Puram. 15 Both PW1 Sunil Kumar and PW3 Vikas Aggarwal were subjected to cross examination on behalf of accused but absolutely nothing material came out in the cross examination of these two witnesses as to the truthfulness of the version.

16 PW3 Vikas even claimed that when they were being taken in the car, the light inside the car was switched On once when the offenders were checking the articles in the bag of Sunil. He also categorically stated that he himself saw accused Mukesh driving the car. He also claimed that the place where they were dropped was not dark and there was street light at that time. The accused persons stayed there for about two minutes. He also claimed that they remained in the vehicle of offenders for about 45 minutes to about one hour and the knife injuries were inflicted on Sunil at Badli and at that time, all the four offenders were in the car. He also categorically stated that accused Mukesh looked backward on few occasions at the time when he was driving the car.

17 The above mentioned facts establishes categorically that it was SC no. 22/14 Dtd... 06.02.2016 Page 24 of 32 25 accused Mukesh who was one of the robbers who robbed the victims and during robbery also caused injuries to the victim. However, the question is whether this accused can be convicted for both the sections i.e. Sec. 392 as well as 394 of IPC. Section 394 of IPC provides enhanced punishment where while committing robbery, an accused causes injuries to the victim voluntarily. Whereas, Section 392 of IPC provides punishment for committing robbery, simplicitor. When accused is being held guilty for a provision which provides enhanced punishment, he cannot be convicted U/s 392 of IPC also for the same offence. Case of the prosecution is therefore clearly established, so far as sections 365 & 394 of IPC are concerned against this accused.

18 So far as Sec. 397 IPC is concerned, admittedly it is not the case of prosecution that the accused used the country made pistol at the time of robbery. The use of country made pistol at the time of robbery is attributed to the associate of accused Mukesh, who could not be apprehended. It is now settled law that there is no vicarious liability, so far as Sec. 397 IPC is concerned. Therefore, the role attributed to this accused is that he was driving the car at the time of abduction and at Badli he took knife from his associate and inflicted injuries on Sunil. Admittedly, the knife has not been recovered. The description of knife has not come forth in the testimony of victims. It is now settled law that in absence of recovery of knife and SC no. 22/14 Dtd... 06.02.2016 Page 25 of 32 26 description of knife, the knife cannot be called as a deadly weapon. 18.1 Therefore, so far as use of knife by this accused at the time of robbery is concerned, that does not bring this case within the purview of Sec. 397 of IPC.

19 Turning to the charge U/s 25 & 27 of Arms Act, 1959 against the accused, it is the admitted case of prosecution that at the time of robbery and abduction of the complainant and his friend, this accused was not in possession of any pistol. Pistol was in possession of associate of accused. Even if for the sake of arguments, it is presumed that this pistol was recovered from the possession of accused when he was arrested on 28.11.2013 from Budh Vihar, still charge U/s 27 of Arms Act will not survive against this accused. On 28.11.2013 this accused did not use the pistol or cartridge.

19.1 However on 28.11.2013 when this accused was arrested, it is the case of prosecution that this accused was found in possession of the pistol and two live cartridges. In this regard, prosecution has examined PW8 Ct. Jagjeet, PW12 Ct. Virender and PW14 SI Deepak Bhardwaj. All these witnesses consistently deposed that when the accused was arrested on 28.11.2013, he was found in possession of the pistol and two live cartridges. Nothing material could be brought out in the cross examination of these three witnesses in order to create doubt about this part of recovery from SC no. 22/14 Dtd... 06.02.2016 Page 26 of 32 27 the accused. Except bare suggestions given to these witnesses that no such thing was recovered from the accused, nothing could be culled out in the cross examination of these three witnesses to create doubt as to the recovery part and arrest of this accused. 19.2 Ld. Counsel for the accused argued that admittedly at the time of arrest and recovery, no public witnesses was joined and therefore, the recovery cannot be imputed to the accused. It is now settled law that merely because public witnesses are not joined by the investigating agency, its benefit cannot go to the accused and in case the prosecution is able to convincingly establish from the testimonies of police officials also, that recovery was affected, the fact of recovery cannot be discredited or disbelieved. Police official witnesses cannot be termed as unbelievable merely because they are police officials. In the present case, during the cross examination of the three police officials, there is no contradiction forthcoming as to the recovery of pistol and cartridges from the accused. Thus, in absence of any contradiction or any other circumstances creating doubt, the recovery of pistol and cartridges cannot be disbelieved simply on the ground that efforts were not made to join the public witnesses. In this regard, one may place reliance upon the following two cases :­ 19.3 In Criminal Appeal No. 2302 of 2010 titled as Gian Chand & Ors.

vs. State of Haryana, decided on July 23, 2013, Hon'ble Apex court held as follows;

"25. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the police department.

In Rohtash v. State of Haryana JT 2013 (8) SC 181, this court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:

"Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."

(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v.State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of Revenue SC no. 22/14 Dtd... 06.02.2016 Page 28 of 32 29 Intelligence, AIR 2003 SC 4311; and Ravinderan @ John v. Superintendent of Customs, AIR 2007 SC 2040).

26. In State, Govt. of NCT of Delhi v. Sunil. (2001) 1 SCC 652, this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

27. In Appabhai v. State of Gujarat AIR 1988 SC 696, this court dealt with the issue of non-examining the independent witnesses and held as under:

"The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties."

28. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.

29. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross- examination has made it clear that in spite of his best persuasion, none of them were willing to become a SC no. 22/14 Dtd... 06.02.2016 Page 30 of 32 31 witness. Therefore, he could not examine any independent witness.

Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."

19.4 Thus, this court has no doubt to believe and rely on the testimonies of PW8 Ct. Jagjeet, PW12 Ct. Virender and PW14 SI Deepak Bhardwaj and prosecution establishes beyond doubt that when the accused was arrested, from his possession one pistol and two live cartridges were recovered. It may be mentioned here that the accused in his statement claimed that he was apprehended from Tis Hazari and not from Budh Vihar. But then he did not lead any evidence of the fact that he was in Tis Hazari on that day. He had claimed that he went to attend a hearing in Tis Hazari Courts, but then he did not even make an attempt to prove as to in which case he went to Tis Hazari and no attempt was made to prove his presence at that place. No suggestion whatsoever was given during SC no. 22/14 Dtd... 06.02.2016 Page 31 of 32 32 the cross examination of PW8 Ct. Jagjeet, PW12 Ct. Virender and PW14 SI Deepak Bhardwaj that this accused was apprehended from Tis Hazari and not from Budh Vihar.

19.5 The FSL expert has established that the country made pistol and live cartridges recovered from the accused were indeed 'firearm' and 'ammunition' within the definition provided in the Arms Act, 1959. The Sanction has been also proved in the present matter. 19.6 Thus, the prosecution establishes that the accused was found in possession of the country made pistol and two live cartridges on 28.11.2013.

20 The sum & substance of the above discussion is that the accused is found guilty and convicted U/s 365 & 394 r/w 34 of IPC as well as Sec. 25 of Arms Act, 1959.

Announced in the open court on 6th day of February, 2016. Dig Vinay Singh ASJ/Spl.Judge : NDPS (N­W) Rohini Courts/Delhi.