Delhi District Court
Fir No. 75/2013 State vs . Rahul Ps Anand Parbat Page No. 1 Of 29 on 27 January, 2023
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE-04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-000865-2013
SC No. 57024/2016
FIR No. 75/2013
PS : Anand Parbat
State
Vs.
Rahul
S/o Sh. Prem Singh @ Balbir Singh
R/o H.No. 401, Gali No.7, Karan Vihar,
PS Aman Vihar, Delhi.
Date of Institution of case : 04.07.2013
Date of decision : 27.01.2023
Final order : Accused is convicted for
the offence punishable
u/s 392 IPC
JUDGMENT
1. Brief facts of the case are that on 06.05.2013 at about 8.08 PM, DD No. 41A was marked to ASI Dalbir and accordingly, ASI Dalbir alongwith Ct. Raja Rao went to FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 1 of 29 the place of information i.e. Gali No.4, Near Wine shop, New Rohtak Road where they met complainant Ashok Kumar Rathore and HC Jai Lal. Complainant Ashok Kumar Rathore produced accused Rahul before ASI Dalbir Singh as well as one recovered knife and sealed box of mobile phone. ASI Dalbir Singh recorded the statement of complainant Ashok Kumar Rathore. Thereafter, ASI Dalbir checked the said box which was found containing one black colour Samsung mobile phone, charger, battery and ear lead of white colour. ASI Dalbir Singh prepared the sketch of knife and also measured the said knife and total length of said knife came to be 25 cm. Thereafter, ASI Dalbir Singh kept the said knife in a cloth pullanda and pullanda was sealed with the seal of APRVT-IV and seized vide seizure memo. ASI Dalbir Singh also kept the said mobile box as well as mobile and other accessories in a cloth pullanda and pullanda was sealed with the seal of APRVT-IV and was seized through seizure memo. Thereafter, ASI Dalbir Singh prepared rukka and handed over the said rukka to Ct. Raja Rao who accordingly went to PS, got the FIR registered, came back to the spot and handed over the copy of FIR and original rukka to IO ASI Dalbir Singh. On the spot, IO ASI Dalbir Singh had prepared rough site plan at the instance of complainant Ashok. IO had interrogated the accused Rahul and effected his arrest and also conducted his personal search and also recorded his disclosure statement. Thereafter accused was medically examined and was sent to lock up and IO deposited the case property in malkhana. During FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 2 of 29 investigation, IO recorded the statement of witnesses and after completion of investigation, he prepared charge- sheet.
2. After completion of investigation, chargesheet was filed before concerned Ld. M.M. on 01.07.2013. Vide order dated 02.07.2013, passed by Ld. MM the present case was committed to the court of Sessions in accordance with Section 323 Cr.P.C for 04.07.2013 and on 04.07.2013 the present case was assigned to the Sessions Court for trial.
3. On 07.09.2013, order on charge was passed by Ld. Predecessor and charge for offence punishable under Section 392 read with Section 397 IPC was framed against the accused namely Rahul. The charge was read over and explained to the accused in vernacular and he was asked as to whether he want to plead guilty or claim trial. After understanding the charge, accused pleaded not guilty and claimed trial.
4. Thereafter, the prosecution has examined PW1 HC Bharat Bhushan, PW2 Sh. Ashok Kumar Rathore, PW3 HC Jail Lal, PW4 HC Raja Rao and PW5 SI Dalbir.
5. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
6. PW1 HC Bharat Bhushan deposed that on 06.05.2013, he was posted at PS Anand Parbat as Duty officer from 4 PM to 12 in the night. On that day, at about 8.08 PM, he received a call from PCR regarding stabbing a person at Gali No.4 Anand Parbat and he recorded the said information vide DD No. 41A Ex.PW1/A and handed over the copy of the same to ASI Dalbir Singh for further FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 3 of 29 action. He further deposed that on the basis of rukka received from Ct. Raja Rao sent by ASI Dalbir Singh he got registered the FIR no. 75/2013 Ex.PW1/B. He also identified his signatures on certificate u/s 65 of Indian Evidence Act Ex.PW1/C.
7. During cross-examination, this witness has deposed to be correct that the PCR call was attended by him in which it has been stated that "caller ko chaku mara hai".
8. PW-2 Sh. Ashok Kumar Rathore deposed that he was running a mobile shop in the year 2013 and in the month of June, 2013 on the day of incident at around 6-7 PM, accused Rahul came to his shop and asked to show mobile phone. He further deposed that he took out one Samsung mobile phone and shown to accused. Meanwhile, he was busy with other customer, he saw that accused was fleeing with the mobile phone. He chased accused while raising alarm. He further deposed that when accused reached near Theka Sharab near gali no.4, Anand Parbat, he tried to catch accused with the help of other public persons whereas accused took out a knife and shown the same to him. Thereafter, public persons started beating accused. In the meantime, police officials came there. He further deposed that accused was having the box of mobile phone belonging to him in his hand. The said box of mobile phone was taken by the police from the possession of accused and knife was also taken by the police from the possession of accused. He further deposed that thereafter, police took accused, recovered knife and box of mobile phone to PS Anand Parbat and he also accompanied them.
FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 4 of 29 In the police station, police recorded his statement Ex.PW2/A and seized the mobile phone and knife vide seizure memo Ex.PW2/B and Ex.PW2/C. Police also effected the arrest of accused Rahul vide arrest memo Ex.PW2/D and seized the photocopy of bill of the mobile phone vide seizure memo Ex.PW2/E and photocopy of the bill is mark PW1/X.
9. This witness was cross examined on behalf of state as the witness was not disclosing the whole facts of the present case.
10.During cross-examination by Ld Addl. PP for the State, PW2 admitted that incident took place on 06.05.2013. He also admitted that after theft of mobile phone, accused started running towards Kamal T point and accused took out knife and shown him the said knife by saying "mera picha mat karo nahi toh chaku maar dunga". He further admitted that even after the said threatening by accused, he did not stop chasing him. He also admitted that after hearing his alarm police officials present at Theka new Rohtak Road came forward and they apprehended the accused with the help of police. He also admitted that on the box of the mobile phone make Samsung Champ Delux was mentioned and police prepared the pullanda of the box of the mobile phone and sealed the said pullanda and police also prepared the sketch of said knife Ex.PW2/F and also measured the said knife and after sealing seized the said knife and police also prepared the site plan at his instance.
11.PW2 also identified the said knife as Ex.P1 and one mobile FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 5 of 29 box containing one black colour samsung phone, charger, battery and earphone lead as collectively Ex.P2.
12.During cross-examination on behalf of accused, this witness deposed that he was not having any license for running mobile shop. He voluntarily stated that there was no need for any license for running mobile shop. He also deposed that the shop was a rented one. He denied the suggestion that accused Rahul had not committed any such robbery of mobile from his shop. He also deposed that no CCTV camera was installed at his shop. He also stated that 5 to 6 other customers were present at that time in his shop and he alone chased accused Rahul. He denied the suggestion that accused had not pointed out any knife towards him. He also denied the suggestion that accused was not apprehended in the manner as deposed by him. He further stated that IO did not record the statements of said customers who were present at his shop at the time of occurrence. He also stated that many public persons gathered who had given beatings to accused. He also stated that it was not within his knowledge if IO had examined any of said public witnesses. He also denied the suggestion that no such occurrence took place in the manner as deposed by him or that no such recovery was effected from the possession of accused. He also stated that it is not within his knowledge if accused is suffering from mental disorder or that he is being treated for the said mental disorder from RML hospital or from IBHAS. He also denied the suggestion that accused being suffering from mental disorder was standing in front of his shop and when FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 6 of 29 he requested him to move away from the shop, he started using abusive language against him and the customers present over there or that due to the said abusive language, the public persons started thrashing accused or that later on with the connivance of IO, he had implicated accused in this case.
13.PW-3 HC Jai Lal has deposed that on 06.05.2013 he was posted at PS Anand Parbat and was having duty in Beat No.9. On that day at about 7.55 pm when he was present near the wine shop, Gali No.4, he saw that one person was running from the side of Kamal T-point towards gali no.4. He further deposed that the said person was having one box of mobile phone in his left hand and one knife in his right hand and was chased by one another person who was shouting chor-chor. He further deposed that when the person who was having mobile and knife reached in front of wine shop (theka), the person who was following him, apprehended him with his assistance. He further deposed that one box of mobile phone and one knife was recovered from the possession of accused Rahul. He further deposed that IO/ASI Dalbir Singh alongwith Ct. Raja Rao also reached there. Accused with recovered articles was handed over to IO, who opened the mobile phone box and one mobile phone of black colour, charger, one battery and one earphone lead of white colour were found in that box. He further deposed that IO prepared the sketch Ex.PW2/F of said knife on white paper. He further deposed that the total length of the said knife was 25 cm. He further deposed that in his presence, IO had recorded statement of Ashok and FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 7 of 29 prepared rukka. He further deposed that IO had also kept the said mobile, charger, battery, earphone lead and box into a cloth pullanda and said pullanda was sealed with the seal of RVT-IV and seized the same vide seizure memo Ex.PW2/B. He further deposed that IO handed over rukka to Ct. Raja Rao who got the FIR registered and came back to the spot and handed over copy of FIR and original rukka to IO. He further deposed that accused was arrested vide arrest memo Ex.PW2/D and his personal search was conducted vide memo Ex.PW3A and accused made disclosure statement Ex.PW3/B and IO also sealed the knife after keeping it in a cloth pullanda and seized the same vide seizure memo Ex.PW2/C. He also identified the knife Ex.P1 and mobile phone containing black colour Samsung mobile, charger, battery and earphone lead as Ex.P2 (colly).
14.During cross-examination on behalf of accused, PW3 stated that at the relevant period of time, he was beat officer of area of Gali No.4, Rohtak Road. He also stated that he was already present near the wine shop and again clarified that they were standing there during patrolling in the area as beat officer. He also stated that it was at about 7.55 pm and 5-10 customers were present at the wine shop. He further stated that there was no other vendor selling snacks, cold drink, water bottle etc nearby the shop. He also stated that the distance between the place where he was standing and Kamal T point is about 100 meters. He also stated that the accused was apprehended by public person who was chasing accused, with his help. He also FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 8 of 29 stated that as soon as accused was apprehended, ASI Dalbir alongwith one constable reached at the spot. He also stated that the accused was not taken to the beat or anywhere else immediately after his apprehension but was handed over to IO ASI Dalbir alongwith case property. He stated that no public person from wine shop was called by IO ASI Dalbir Singh to join investigation, in his presence. He admitted that writing work was not done by IO in any nearby shop. He also stated that after completing the written proceedings, his statement was recorded by IO and was discharged. He also stated that the PS was at the distance of about 1km from the spot and he went to PS on bike after being discharged. He denied the suggestion that neither he was present at the spot nor accused was apprehended by him or that nothing was recovered from the possession of accused. He also stated that he had not noticed any abnormal behaviour (lunacy) of accused at the time of proceedings.
15.PW-4 HC Raja Rao has deposed that on 06.05.2013, he was posted at PS Anand Parbat and was on night emergency duty from 8 PM to 8 AM with ASI Dalbir. On that day, at about 8.08 PM, on receipt of DD no. 41A by ASI Dalbir, he reached at place of information i.e. gali no.4, new Rohtak Road, Delhi near wine shop and met complainant Ashok Kumar Rathore, who produced one person whose name was disclosed as Rahul alongwith recovered knife and sealed box of mobile phone. IO recorded his statement. He further deposed that IO checked the aforesaid mobile phone box and it found containing FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 9 of 29 one black coloured samsung mobile phone, charger, battery and earphone of white colour. He further deposed that IO prepared sketch of knife Ex.PW2/F. He further deposed that total length of knife was 25 cm. IO prepared pullanda of said knife with the help of cloth and sealed it with the seal of APRVT IV and seized the same vide memo Ex.PW2/C. He further deposed that IO had also prepared pullanda of recovered mobile phone box containing mobile phone and its accessories with the help of cloth and sealed the same with the seal of APRVT IV and seized the same vide memo Ex.PW2/B. He further deposed that IO prepared rukka and handed over the same to him for registration of case, who accordingly went to PS, got the case registered and came back to the spot alonwgith copy of FIR and original rukka and handed over the same to IO. He further deposed that IO interrogated the accused and arrest him vide memo Ex.PW2/D and conducted personal search of accused vide memo Ex.PW3/A and also recorded his disclosure statement vide memo Ex.PW3/B. He also identified the knife as Ex.P1 and mobile phone containing black colour Samsung mobile, charger, battery and earphone lead as Ex.P2 (colly).
16.During cross-examination, PW4 stated that he had not made any separate department entry while leaving the PS. He also stated that he had no idea of the distance between the PS and the place where they reached after receiving secret information. He admitted that the said place was surrounded by factories and was a crowded area. He further stated that he did not remember the duration of FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 10 of 29 time for which he remained at the spot and he also did not remember if any other public person other than Ashok was present at the spot when he reached there. He further stated that he did not remember if IO had asked any public person to join the investigation, however, IO had not given any written notice to any public person in his presence. He further stated that the mobile phone and knife were produced by the complainant. He further stated that he did not remember if any CCTV camera for footage was searched by IO. He further stated that he could not tell the distance between the place of apprehension of accused and the shop of the complainant as he had not gone to the shop of the complainant. He further stated that IO had recorded the statement of complainant at the spot while sitting on the staircase by the side of gali and there was light at the spot. He further stated that he could not recollect the house number/shop number of said building on whose staircase IO was sitting and as to how many storeys the said building was built up. He further stated that IO had recorded the disclosure statement of accused at the spot.
17.PW-5 Retired SI Dalbir deposed that on 06.05.2013, he was posted at PS Anand Parbat as ASI and was on night emergency duty from 8 PM to 8 AM alongwith Ct. Raja Rao. On that day, at about 8.08 PM, DD No. 41A Ex.PW1/A was marked to him and accordingly, he alongwith Ct. Raja Rao reached at the place of information i.e. Gali No.4, Near Wine shop, New Rohtak Road where they met complainant Ashok Kumar Rathore and HC Jai Lal. He further deposed that complainant produced FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 11 of 29 accused Rahul as well as one recovered knife and sealed box of mobile phone and he had recorded the statement of complainant Ashok. He further deposed that he had checked the said box which was found containing one black colour Samsung mobile phone, charger, battery and ear lead of white colour. He had prepared the sketch of knife Ex.PW2/F and also measured the said knife whose total length was 25 cm. He further deposed that he kept the said knife in a cloth pullanda and pullanda was sealed with the seal of APRVT-IV and seized the same vide seizure memo Ex.PW2/C. He also kept the said mobile box as well as mobile and other accessories in a cloth pullanda and pullanda was sealed with the seal of APRVT-IV and seized the same vide seizure memo Ex.PW2/B. He further deposed that he had prepared rukka Ex.PW5/A and handed over to Ct. Raja Rao who accordingly went to PS, got the FIR registered, came back to the spot and handed over the copy of FIR and original rukka to him. He further deposed that on the spot, he had prepared rough site plan Ex.PW5/B at the instance of complainant Ashok and he interrogated the accused and effected his arrest vide memo Ex.PW2/B and conducted his personal search vide memo Ex.PW3/A and also recorded his disclosure statement Ex.PW3/B. He further deposed that he had recorded the statements of witnesses and thereafter, accused was medically examined and was sent to lock up. He further deposed that he had deposited the case property in malkhana. He also identified the knife as Ex.P1 and mobile phone containing black colour Samsung mobile, charger, FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 12 of 29 battery and earphone lead as Ex.P2 (colly).
18.During cross-examination, PW5 stated that he had not made any separate departure entry while leaving the police station. He also stated that the place of occurrence was half kilometer from PS Anand Parbat. He stated that no public persons were present when they reached at the spot, except complainant, accused and HC Jai Lal. He admitted that the said place is surrounded by factories and is a crowded area. He denied the suggestion that accused was given beatings by the public persons. He further denied the suggestion that no such recovery was effected from the possession of accused. He also stated that it is not within his knowledge if accused had been suffering from mental disorder or that accused was being treated for the said mental disorder from RML hospital or from IBHAS. He denied the suggestion that accused being suffering from mental disorder was standing in front of the shop of the complainant and when complainant requested him to move away from the shop, he started using abusive language against complainant Ashok Kumar Rathore and the customers present over there or that due to the said abusive language, the public persons started thrashing accused or that later on with his connivance, Complainant Ashok had implicated accused in this case. He further stated that no CCTV cameras were installed at the spot. He denied the suggestion that CCTV camera was installed at the shop of complainant or that he had intentionally not collected or placed on record the same. He further stated that he had done the writing work at the place of apprehension of FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 13 of 29 accused. He further stated that the place of occurrence and place of apprehension of accused was 30 meters away from each other. He denied the suggestion that no such writing work was done at the spot or that he had prepared false memos while sitting at PS itself. He fruther denied the suggestion that he had not carried out fair investigation. He admitted that during investigation, when the accused was produced before Ld. MM it was brought to his notice that accused was suffering from mental disorder and was under medical treatment. He further stated that during investigation, he made no efforts to collect said medical documents and to verify the mental condition of accused.
19.On 17.10.2022 prosecution evidence was closed. On 15.11.2022, statement of accused Rahul was recorded u/s 313 Cr.P.C. In his statement u/s 313 Cr.P.C, accused stated that he is innocent and has been falsely implicated and he has no connection with commission of offence of the present case. He further stated that he simply picked up the box containing mobile as he was intending to listen some music on the mobile. He further stated that complainant falsely implicated him in this case with the connivance of police. He further stated that no such knife was recovered from his possession. He also stated that he had not threatened the complainant in any manner and had not used any such knife. He further stated that he was apprehended by complainant falsely and the complainant was under belief that he picked up the said box in order to commit theft, however, he picked up the said box only to FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 14 of 29 listen music from the mobile phone. Accused opted not to lead any evidence in his defence.
FINDINGS & OBSERVATIONS:
20.I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. My findings are as under:
Ocular Evidence:
21.Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness.
Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies.
22.Since the prosecution is placing its heavy reliance on the testimony of PW2 Ashok Kumar Rathore i.e. complainant. It is therefore necessary for this Court to first determine whether the testimonies are reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 15 of 29 have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness- box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
23.Applying the settled principles of law to the facts of the present case, coming first to the testimony of PW2 Ashok Kumar Rathore, according to him, he had been running a mobile shop in the year 2013. In the month of June, 2013 on the day of incident at around 6-7 PM, accused Rahul came to his shop and asked to show mobile phone. He further deposed that he took out one Samsung mobile phone and shown to accused. Meanwhile, he was busy with other customer, he saw that accused was fleeing with FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 16 of 29 the mobile phone and he chased accused while raising alarm. He further deposed that when accused reached near Theka Sharab near gali no.4, Anand Parbat and he tried to catch accused with the help of other public persons, accused took out a knife and shown the same to him. Thereafter, public persons started beating accused and in the meantime, police officials came there. He further deposed that accused was having the box of mobile phone belonging to him in his hand. The said box of mobile phone was taken by the police from the possession of accused and knife was also taken by the police from the possession of accused. He further deposed that thereafter, police took accused, recovered knife and box of mobile phone to PS Anand Parbat and he also accompanied them. In the police station, police recorded his statement Ex.PW2/A and seized the mobile phone and knife vide seizure memo Ex.PW2/B and Ex.PW2/C. Police also effected the arrest of accused Rahul vide arrest memo Ex.PW2/D. Police also seized the photocopy of bill of the mobile phone vide seizure memo Ex.PW2/E and photocopy of the bill is mark PW1/X. The complainant/PW1 Ashok Kumar Rathore stood well during his cross-examination and there is no material contradiction in his testimony recorded before the Court.
24.I may also note that the witness PW2 Ashok Kumar Rathore is the victim eye witness and has stood by his version. His testimony has its own efficacy and relevancy and the fact that he was robbed by accused Rahul would show that he was present at the place of occurrence and FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 17 of 29 had seen the occurrence by himself [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye-witness are natural witnesses and they could not have concocted a baseless case against accused. Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist.
25.A plain reading of the testimony of injured PW2 Ashok Kumar Rathore confirms the presence of the accused Rahul at the spot and also confirms the role attributed to him. Further, the accused has also stated in his statement u/s 313 Cr.PC that complainant has falsely implicated and he had simply picked up the box containing mobile phone as he was intending to listen some music on the mobile. The accused further stated in his aforesaid statement that he was apprehended by the complainant under the belief that he picked up the said box in order to commit theft whereas he picked up the said box only to listen music from the said mobile phone. The combined reading of testimony of PW2/complainant Ashok Kumar Rathore and the defence taken by the accused in his statement u/s 313 Cr.PC leaves no iota of doubt that accused Rahul was FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 18 of 29 present on the shop of the complainant at the time of commission of alleged offence and that he picked up the box containing mobile phone from the shop of the complainant and started going away. The complainant/PW2 Ashok Kumar Rathore has enumerated the manner in which the alleged offence was committed whereas the accused has not led any defence evidence. In view of the facts and circumstances, I find no reason to disbelieve the testimony of complainant/PW2 Ashok Kumar Rathore and I hold the said witness credible, reliable and trustworthy.
26.The ocular evidence on record in the form of testimony of PW2 Ashok Kumar Rathore, corroborates the prosecution version and establishes the guilt of the accused Rahul.
27.Now, coming to the testimony of other material witness of the prosecution i.e. PW3 HC Jai Lal, it is observed that the said witness has supported the case of the prosecution and deposed in corroboration to the testimony of PW2 Ashok Kumar Rathore and there is no material contradiction in his testimony recorded before the Court. PW3 categorically deposed that on 06.05.2013 he was posted at PS Anand Parbat and was having duty in Beat No.9 and on that day at about 7.55 pm when he was present near the wine shop, Gali No.4, he saw that one person was running from the side of Kamal T-point towards gali no.4 and the said person was having one box of mobile phone in his left hand and one knife in his right hand and was chased by one another person who was shouting chor-chor. He further deposed that when the person who was having FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 19 of 29 mobile and knife reached in front of wine shop (theka), the person who was following him, apprehended him with his assistance. He further deposed that one box of mobile phone and one knife was recovered from the possession of accused Rahul. He further deposed that IO/ASI Dalbir Singh alongwith Ct. Raja Rao also reached there. Accused with recovered articles were handed over to IO, who opened the mobile phone box and one mobile phone of black colour, charger, one battery and one earphone lead of white colour were found in that box. He further deposed that IO prepared the sketch Ex.PW2/F of said knife on white paper. He further deposed that the total length of the said knife was 25 cm. He further deposed that in his presence, IO had recorded statement of Ashok and prepared rukka. He further deposed that IO had also kept the said mobile, charger, battery, earphone lead and box into a cloth pullanda and said pullanda was sealed with the seal of RVT-IV and seized the same vide seizure memo Ex.PW2/B.
28.The said witness i.e. PW3 HC Jai Lal was cross-examined on behalf of accused. During cross examination, nothing favourable has come out in favour of accused and this witness also stood firm during his cross-examination.
29.The overall impact of the testimony of both the aforesaid witnesses i.e. Complainant/PW2 Ashok Kumar Rathore and PW3 HC Jai Lal is that they have deposed in corroboration to each other and there is nothing on record to disbelieve their testimonies.
30.The prosecution has also examined PW4 HC Raja Rao and FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 20 of 29 PW5 IO/SI Dalbir Singh who reached at the spot after the occurrence of the alleged offence and the aforesaid witnesses have also supported the case of the prosecution and deposed in corroboration to the testimonies of other witnesses. The said witnesses were cross examined on behalf of defence but both the said witnesses stood firm and nothing favourable to accused has come out from their respective cross-examination.
31.Section 390 IPC defines the term "robbery"- In all robbery there is either theft or extortion.
32.When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
Charge for the offence punishable u/s 397 IPC:-
Section 397 IPC reads as under-
"Robbery, or dacoity, with attempt to cause death or grievous hurt - if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offenders shall be punished shall not be less than seven years"
Section 397 IPC envisages that if at the time of committing robbery or dacoity the offender uses any deadly weapon or FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 21 of 29 causes grievous hurt or attempts to cause death or grievous hurt, the imprisonment with which such offender shall be punished shall not be less than seven years.
33.Perusal of the testimony of PW2 Sh. Ashok Kumar Rathore reveals that PW2 did not allege that the accused had used the knife while committing the theft. According to the testimony of PW-2, the accused came to his shop and asked to show mobile phone, he took out one Samsung mobile phone and shown the same to accused. Meanwhile, he (PW2) was busy with other customer and PW2 saw that accused was fleeing with the mobile phone. PW2 chased him while raising alarm and accused reached near the Theka Sharab near gali no. 4, Anand Parbat and when he tried to catch the accused with the help of other public persons, accused took out a knife and shown to him. Thus, accused had committed the theft without brandishing or using any weapon.
34.The case of the prosecution that the accused had stolen the mobile phone by showing a knife cannot be accepted. PW2 has categorically deposed that the accused ran away with Samsung mobile phone from the shop and when he chased the accused, then accused took out a knife and shown to him. Thus, the testimony of PW-2 is very clear that accused had not used the knife at the time of committing the theft.
35.Reliance is placed upon judgment delivered in Ravinder Pasawan v. State: 2014 (1) JCC 78, Hon'ble High Court had confirmed the finding that the accused had tried snatching a chain from the victim and when she tried FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 22 of 29 catching hold of him and raising an alarm, he whipped out a knife and two other accomplices had pushed her. While considering the appeal under Section 397 of the IPC on the said facts, this Court held as under:
"12. As regards, the submission that recovery of knife from the possession of the appellant has not been believed by the learned Trial Court, same is devoid of substance, inasmuch as, no finding has been given by the learned Trial Court regarding recovery of knife from the possession of the appellant. The charge against the appellant was also under Section 397 IPC, however, since there was no evidence to prove that at the time of snatching the chain from Bhagwan Devi, the appellant had used the deadly weapon, therefore, use of deadly weapon at the time of committing robbery was not proved. That being so, he was convicted only for offence under Section 392 IPC."
36.Reliance is also placed upon judgment delivered in Swapan Kumar Khan v. State of WB: (2104) Cal 1 LT 299, a Division Bench of the Calcutta High Court had held that Section 397 of the IPC is an offence of a higher degree as compared to Section 394 of the IPC and in absence of grievous injury, conviction under Section 397 of the IPC, is unwarranted.
37.Reliance is also placed upon judgment delivered in Suresh Kumar v. State: (1989) ILR I Delhi 82, Hon'ble High Court while coming to the finding that the appellant had snatched the golden chain from the complainant's neck and had voluntarily caused hurt to PW1, held that the FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 23 of 29 provisions of Section 397 of the IPC would not be applicable since the appellant had not used the dagger while committing the robbery.
"1... It is true that at the time of commission of the robbery the witnesses do not say that appellant was having any dagger in his hand visible to the victim or to the witnesses. It is only when appellant had run away from the spot, was being followed and had recited near the railway lines that appellant had threatened the pursuing constable and the public witness with the dagger in his hand and had also caused injury to the constable with that dagger... 2 ..Thus he has definitely committed an offence punishable under Section 394 I.P.C. Provisions of Section 397 I.P.C. would not be applicable to the facts of the present case because at the time of committing the robbery the appellant had not used the dagger. Appellant could be guilty of such culpability if the appellant was carrying the dagger in the full view of the victim at the time of the commission of the robbery. Such was the case of Phool Kumar v. Delhi Administration, 1975 Crl. Law Journal (1) In the said case the accused at the time of committing the robbery was carrying in his hand knife open to the view of the victims and it was held that it was sufficient to bring home the culpability of the accused under Section 397 I.P.C. It was also held that any other over act such as brandishing of the knife or causing of grievous hurt with it is not necessary to bring the offender within the ambit of Section 397 IPC. In Thavasi, 1972 Crl. Law Journal 445 (2) the facts were that no deadly weapon was used at the FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 24 of 29 time of committing the robbery but the said weapon was used for inflicting injuries only when the accused was about to be apprehended by an overwhelming crowd. It was held that provision of Sections 397 of the Act were not applicable in as much as the deadly weapon was not used while committing the robbery. This judgment on all fours applies to the facts of the present case. The dagger in question was not open in the hand of the appellant at the time of committing the robbery, so he cannot be punished with the help of Section 397 I.P.C."
38.Reliance is also placed upon judgment delivered in Vishal v. State of NCT of Delhi: Crl. A. 648/2011 decided on 20.01.2014, Hon'ble High Court observed as under:-
"5. Besides above, conviction with the aid of Section 397 IPC was not proper as no 'deadly' weapon was used by the appellant at the time of committing robbery. The incident of alleged robbery had taken place inside the bus where none of the offenders used any deadly weapon to overawe or scare the complainant. The appellant was not found in possession of any robbed/stolen article and did not use knife (a) in order to the committing of the theft; or (b) in committing the theft; or (c) in carrying away or attempting to carry away property obtained by theft, to attract Section 390 IPC when theft becomes robbery under above noted circumstances. The knife was allegedly taken out by the appellant when he was being chased to avoid his apprehension. In 'Queen Empress v. Beni', (1901) ILR 23 All 78, wherein Henderson, J. Held that "where several persons were found endeavouring to break into a house, FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 25 of 29 and some of them, being armed, used violence, but only in attempting to escape being arrested it was held that they could not properly be convicted under Section 397 read with Section 511 of the Penal Code, 1860."......
39.Reliance is also placed upon judgment delivered in Ajay @ Munna v. State: Crl.A. 14/2016 decided on 16.06.2017, Hon'ble High Court observed as under:-
"Upon hearing and on perusal of impugned judgment, order on sentence, appellant's Nominal Roll and the evidence on record, I find that the pre-requisite to attract Section 397 of IPC is that a weapon has to be used to facilitate the commission of offence of robbery or dacoity. It is amply clear from the evidence of complainant (PW-1) and that of public witness (PW-5) that appellant had not shown the 'knife' to complainant prior to robbing him of his mobile phone. Strangely, after appellant had robbed complainant of his mobile phone, he had shown „knife‚ to complainant. It has come in the evidence of complainant that such a course was adopted by appellant to facilitate his escape from the spot and this endeavour proved unsuccessful as appellant was apprehended at the spot. There is no doubt that the offence of robbery has been committed by appellant and so, his conviction for the offence under Section 392 of IPC is well deserved. However, the evidence on record does not reveal that appellant had shown or used the "knife" before robbing complainant and so, provision of Section 397 of IPC is not attracted to the instant case. Quite evidently, in the evidence of public witness or complainant's evidence, it FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 26 of 29 has not come that appellant had shown the ''knife'' prior to robbing complainant of his mobile phone. So, trial court has erred in convicting appellant with the aid of Section 397 of IPC."
40.Reliance is also placed upon judgment delivered on 06.01.2020 by Hon'ble Delhi High Court titled as Abid vs State in Criminal Appeal No. 582/2016 and Criminal M.C (Bail) 1593/2019, wherein Hon'ble Delhi High Court has categorically held that when the offender is not using the deadly weapon at the time of commission of robbery, the offender/appellant has only committed the offence punishable u/s 392 IPC and not under Section 397 IPC.
41.In Ashfaq Vs. State (Govt of NCT of Delhi) AIR 2004 SC 1253, Hon'ble Apex Court observed that "What is essential to satisfy the word "uses" for the purposes of Section 397, IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be."
42.In view of the aforesaid discussion and the settled law as discussed above, the necessary ingredients of the offence u/s 397 IPC regarding the use of deadly weapon at the time of commission of actual robbery has not been established in this case against the accused Rahul. What is essential to satisfy the word "uses" for the purpose of section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 27 of 29 of the victim so as to be capable of creating a terror in the mind of victim. However, from the testimonies of victim PW2 Ashok Kumar Rathore coupled with the testimonies of other witnesses on record and other material on record, the prosecution has been able to establish that the accused has used the knife in carrying away the stolen mobile phone and the accused was not armed at the time of commission of offence of robbery and hence, the accused Rahul committed the offence of robbery punishable u/s 392 IPC and not u/s 397 IPC.
43.The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence and the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
44.In view of the abovesaid facts and circumstances, I hereby hold that the prosecution has been able to prove and establish its case beyond reasonable doubt and thus accused Rahul is accordingly convicted for the offence punishable u/s 392 IPC.
FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 28 of 29
45.Copy of this judgment be provided Dasti to both the sides free of cost.
(Passed & announced in open court today) (MANISH KHURANA) Addl. Sessions Judge-04 West District, Tis Hazari Courts Delhi/27.01.2023 FIR No. 75/2013 State Vs. Rahul PS Anand Parbat Page no. 29 of 29