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Delhi District Court

State vs . 1. Raman @ Chiku on 27 April, 2013

  IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
   JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 44/2013
Unique Case ID: 02404R0107582012


State                       Vs.    1.     Raman @ Chiku
                                          S/o Pawan
                                          R/o H. No. A­183, Railway
                                          Colony, near Railway Station 
                                          Azadpur, Delhi. 
                                          (Convicted) 

                                     2.   Vicky 
                                          S/o Sube Singh 
                                          R/o H. No. 74­B, Jhodia Chowk,
                                          Rana Building, Azadpur, Delhi. 
                                          (Convicted) 

FIR No.                     :             8/2012
Police Station              :             Keshav Puram 
Under Section               :             392/394/397/411/34 IPC

Date of committal to Sessions Court  : 30.4.2012
Date on which orders were reserved  : 16.4.2013
Date on which judgment pronounced : 16.4.2013

JUDGMENT

Brief Facts:

(1) As per the allegations on 10.1.2012 at about 1:00 PM near Prem Bari Pul, just before the Nehar, the accused Raman @ Chiku State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 1 of 60 and Vicky along with their associates Ravi and Brij Kishore (both juvenile) committed robbery on the complainant Mahesh of his brown coloured purse containing Rs.210/­, some documents and photograph and also removed his mobile phone make Nokia 2700 bearing No. 9971337953 and his bicycle as well and while committing the said robbery they have also caused voluntary hurt on his person and assaulted him by giving fist and kick blows.

Case of Prosecution in brief:

(2) The case of the prosecution in brief is that on 9.1.2012 a PCR call vide DD No. 61B was received in the Police Station Keshav Puram pursuant to which the Investigating Officer SI Rakesh Duhan reached the spot i.e. near Punjab Kesri, Wazirpur, Delhi, but he could not find anybody there. On 10.1.2012 HC Surender Dutt of Police Station Ashok Vihar came to Police Station Keshav Puram and produced the complainant Mahesh Kumar along with the apprehended person before SI Rakesh Duhan who recorded the statement of SI Rakesh Duhan.

(3) The complainant Mahesh Kumar has stated in his complaint to the investigating officer that on 9.1.2012 he was returning home from his work on his cycle and at about 10 PM and after crossing the Prem Bari Pul he was going wrong side towards State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 2 of 60 the nehar but in the meantime four boys came in front of him and stopped him and after taking him on the side of the road started checking him. He further stated that when he objected, they started beating him with fist and leg blows on which he fell down on the road after which one of them removed his brown coloured purse from the backside pocket of his pants containing Rs.210/­ and some documents and his photograph while the other boy removed his mobile make Nokia 2700 with number 9971337953 whereas the third boy lifted his (Mahesh) cycle on which he raised an alarm and the accused persons started running from the spot. Complainant further told the Investigating Officer that out of the four, two boys ran away towards Punjab Kesri and out of them one boy (i.e. Ravi since juvenile) was apprehended by the complainant with the help of the public persons whereas the other three assailants ran away.

According to the complainant in the meantime somebody from the public made a call to the police and when the police reached the spot, Mahesh was taken to the hospital.

(4) On the basis of the above statement made by the complainant Mahesh Kumar FIR under Section 392/394/34 Indian Penal Code was registered. During investigations the accused persons were arrested and the charge sheet qua the accused Raman @ Chiku and Vicky was filed in the court.

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 3 of 60 CHARGE:

(5) Charge under Section 392/394/411 Indian Penal Code was settled against the accused Raman @ Chiku and Vicky. Further, charge under Section 397/34 Indian Penal Code was also settled against the accused Raman @ Chiku. Both the accused have pleaded not guilty and claimed trial.

EVIDENCE:

(6) In order to discharge the onus upon it, the prosecution has examined as many as twelve witnesses.

Public Witnesses:

(7) PW6 Sangeeta (Lecturer History, Sarvodaya Kanya Vidalaya Rana Partap Bagh) has brought the summoned record pertaining to Raman S/o Sh. Pawan Kumar, R/o N­12­C/429, Kabir Nagar, Rana Pratap Bagh, Delhi. According to her, the date of birth of Raman S/o Pawan Kumar as per admission register is 19.9.1993.

The copy of the admission register is Ex.PW6/A showing the relevant entry at S. No. 48 Page 50 duly marked X. (OSR). The pasting file is Ex.PW6/B running into for pages also containing the copy of date of birth certificate which is Ex.PW6/B­1. (OSR). The witness has not been cross examined by Ld. Defence counsel despite opportunity in this regard and his testimony has gone State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 4 of 60 uncontroverted.

(8) PW9 Mahesh is the victim and has deposed that he is original resident of Pratapgarh and he is presently residing at the given address in Delhi. He has deposed that he was working in a factory at Mangolpuri Industrial Area at B­60, Phase­II. He has further deposed that on 9.1.2012 after finishing his duty at about 10 PM he was going to his house on his cycle when at about 10 PM he reached near Prembari Pull and was going on the wrong side, suddenly four boys came from the Azadpur side and surrounded him. He has further deposed that the first boy pushed him down whereas the remaining boy gave him fist and leg blows and removed his brown coloured purse containing Rs.210/­ and some papers. He has further deposed that they also removed his mobile make Nokia 2700 bearing SIM No. 997133953 and also took his cycle make Atlas having a seat of red colour and also bearing his name Mahesh painted with a white paint on the chain cover. He has further deposed that he received injuries on his face and nose and started bleeding on which he raised on alarm on which the said boys started running away but the public persons who were passing through the area caught hold of one of the boys and gave him a thrashing. According to him one person who was passing through the area in a Maruti car also made a call on 100 number. He has deposed that in the meanwhile the said person disclose his name as Ravi (juvenile State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 5 of 60 accused). According to him, a PCR van came to the spot and removed him and also Ravi to BJRM hospital where he was provided treatment. He has further deposed that they were first taken to Police Station Ashok Vihar but since the jurisdiction fell into Keshav Puram hence they were taken there where his statement was recorded which is Ex.PW9/A bearing his signatures at point A. According to him he was again taken to the spot where he showed the place of incident to the police and the site plan was prepared vide Ex.PW9/B bearing his signatures at point A. He has further deposed that on 10.1.2012 he went to the police station and handed over the bill of purchasing of mobile make Nokia 2700 which the Investigating Officer seized vide memo Ex.PW9/C. He has further deposed that he did not have any bill regarding purchasing of cycle hence he could not hand over the same to the IO. According to him on 11.1.2012 he had joined the Investigating Officer and a raid was conducted in the area of Azadpur. According to him, near the railway line one boy was sitting and he immediately identified him as the same boy who was one of the assailants. According to him, Ravi was also with them at that time and he too had pointed out to the said boy whose name they later on came to know as Raman. He has further deposed that after the said boy was apprehended, police apprehended him vide memo Ex.PW9/D bearing his signatures at State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 6 of 60 point A his personal search was conducted vide Ex.PW9/E bearing his signatures at point A. According to the witness accused was interrogated by the police wherein he disclosed his involvement in the present case and also disclosed that he could get the cycle stolen from him from his house which disclosure statement is Ex.PW9/F. He has further deposed that the accused Raman led them to his house from where he got recovered the Atlas cycle. He has further deposed that he immediately identified the same as his name Mahesh was mentioned on the same. The seizure memo the cycle is Ex.PW9/G bearing his signatures at point A. He has further deposed that on 19.1.2012 he was called to the court of Ld. MM where he identified his mobile and purse. The said proceedings are Ex.PW9/H bearing his signatures at point A. According to him on 20.1.2012 he was called at Kingsway Camp Observation Home for Boys where he identified one of the assailants. The said proceedings are Ex.PW9/I bearing his signatures at point A. Witness Mahesh has correctly identified the accused Raman and Vicky in the court. (9) In his cross examination by Ld. Defence Counsel, the witness Mahesh has deposed that he was working in a gatta factory at Mangol Puri as a Mason / Mistri. He has further deposed that his working hours on the date of incident were from 9.00 a.m. till 9.30 p.m. He has further deposed that he cannot exactly tell as to who State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 7 of 60 caught hold of his hands and as to who had assaulted him and states that it was the accused Vicky who had removed his mobile. He has further deposed that he had told the police in his statement that it was Vicky who had removed his mobile. According to him the accused Vicky was not apprehended in his presence. He has further deposed that he left Mangol Puri factory at 9.30 p.m. and almost reached his house when the incident took place. He has further voluntarily deposed that the distance of place of the incident is very less that is about the same distance as between this Court and the road situated in front of the Court. He has also submitted that he normally reached his room at around five minutes before 10.00 p.m. He has explained that there is divider in the road and therefore he could come to the wrong side of the road by jumping over it. He has deposed that about 20­25 persons gathered at the spot. According to him the police officials had interrogated some public persons who had apprehended Ravi. He has further deposed that he cannot tell the names and addresses of the said public persons because they were not known to him and he is also not able to tell the name of person who had made a PCR call. He has further deposed that his statement was recorded at Police Station Keshav Puram at about 12.00 midnight. He has further deposed that his shirt had also become smeared with blood on account of the injury but the police did not seize his shirt which was smeared with blood. He has further State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 8 of 60 deposed that he cannot tell the number of papers which he had signed and has voluntarily deposed that he had signed many papers. He further deposed that he does not recollect the time when they reached the house of Raman and has voluntarily deposed that it was afternoon and must have been around 12.00 noon. He has further deposed that he did not see anybody in his house and has voluntarily explained that he thought there was nobody in his house. He has further deposed that it was a small room which was a pucca constructed room. He has deposed that police did not join any neighbour in his presence. He admits that the public persons had collected on seeing the police. He has further deposed that he did not recollect as to how many public persons had accompanied him. He has further deposed that they had gone to Azadpur in a police gypsy. According to him he had told the police that he was bleeding from the nose.

(10) The witness Mahesh has denied the suggestion that there was a traffic dispute because he was moving on the wrong side of the road endangering the lives of others to which the accused Ravi had objected. He has further denied that it is for this reason that he got the accused falsely implicated only because they were friends of Ravi. The witness has denied that he never came to the spot or that all documents were prepared while sitting at the Police Station and he only signed the same on the asking of senior officers. The State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 9 of 60 witness has denied that no disclosure statement was made by the accused or that the same was recorded by the Investigating Officer of his own. He has further denied that the accused Raman was not apprehended in his presence in the manner as deposed by him. He has also denied that no cycle was got recovered by Raman or that nothing was recovered from the possession of the accused or at their instance. He has also denied that he received injuries on his nose when he fell down after the registration of the FIR. The witness has further denied that he had identified the accused Vicky in the jail during the TIP after being shown his photograph in the Police Station by the Investigating Officer.

Medical Evidence:

(11) PW3 Dr. Shipra Rampal (Radiologist BJRM Hospital) has deposed that on 28.02.2012 the accused Vicky was produced before the medical board for ossification test. According to the witness she conducted the radiological examination of Vicky and gave her report and the said report of the board is Ex.PW­3/A showing that the estimated age of the accused Vicky on the date of examination was between 20­22 years. The witness has further deposed that on 10.01.2012 one Mahesh was produced in BJRM Hospital for X­Ray of nasal bones. According to the witness the said X­Rays were placed before her on 11.01.2012 on the basis of State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 10 of 60 which she gave her report which is Ex.PW3/B. She has further deposed that she has brought the X­Ray Plate No. 69 and the same is Ex.PW3/C. (12) Dr. Shipra has also proved the signatures of Dr. Rajesh and Dr. Chetan on the MLC of victim having seen them writing and signing in office course of duties. According to the witness on 09.01.2010 at about 11.50 p.m. the victim Mahesh had been brought to BJRM Hospital by ASI Narender with PCR with alleged history of physical assault and he was examined by Dr. Chetan JR under the supervision of Dr. Sandeep CMO. The witness has deposed that as per observations made by the doctors on MLC Ex.PW3/D there was a history of nasal bleeding when the patient was brought to the hospital. According to the witness abrasions were seen over glabilla and swelling over nose was were also noticed on which he was advised X­Ray for nasal bone and nasal packing and the injuries have been opined as 'Grievous'.

(13) The witness was cross­examined by Ld. Defence counsel wherein the witness has deposed that he did not personally examine the patient Mahesh on 09.01.2012 and he is deposing on the basis of official report.

(14) PW4 Dr. Javed Salam (Junior Medical Specialist, BJRM Hospital) has deposed that on 28.02.2012 accused Vicky was produced before the medical board for ossification test. According to State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 11 of 60 the witness he has conducted the physical examination of Vicky and gave his report and the said report of the board is already Ex.PW­3/A showing that the estimated age of Vicky on the date of examination was between 20­22 years. The witness has not been cross examined by Ld. Defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (15) PW5 Dr. Abhilasha K.K. (Dental Surgeon, BJRM Hospital) has deposed that on 28.2.2012 accused Vicky was produced before the medical board for ossification test. She has further deposed that she conducted the dental examination of Vicky and gave her report which report is Ex.PW3/A showing that the estimated age of the Vicky on the date of his examination was between 20­22 years. The witness has not been cross examined by Ld. Defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.

Police / Official Witnesses:

(16) PW1 HC Chet Lal has brought the DD register containing DD No. 29A. He has further deposed that as per record on 09.01.2012 at about 11.00 p.m., Control Room informed that a thief has been apprehended at Netaji Subhash Place and in that State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 12 of 60 regard, DD No. 29A was recorded. He further deposed that HC Surender and Ct. Umesh left for the spot. Copy of DD No. 29A is Ex.PW1/A. He was not cross examined on behalf of the accused. (17) PW2 HC Surender Dutt has deposed that he was on emergency duty at PS Ashok Vihar. He has further deposed that DD No. 29A was received by him on which he along with Ct. Umesh was to leave the police station and in the meantime, PCR along with accused Ravi Kumar reached PS and they handed over the custody of said Ravi Kumar to him. He has further deposed that he along with Ct. Umesh reached and accused Ravi Kumar reached the spot, near Prem Bari Pul, near Tikona Park. According to him he went to the BJRM hospital and collected the MLC of injured Mahesh, as PCR van already removed him to BJRM hospital. He has deposed that he made inquiries from Mahesh and told that at about 10.00 p.m., 3­4 boys came to him at Tikona Park, near Prem Bari Pul and committed robbery of his cycle and mobile phone. According to him he apprehended accused Ravi Kumar at the spot with the help of public and subsequently at about 12.00 midnight on 10.01.12, he handed over the MLC to SI Rakesh of PS Keshav Puram to him and thereafter he returned to Police Station Ashok Vihar and got recorded DD No. 9B regarding his arrival and filing of DD No. 29A.

Certified copy of DD No. 9B is Ex.PW2/A. He has not been cross examined on behalf of the accused.

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 13 of 60 (18) PW3­A Ct. Ravinder has deposed that he was posted at Police Station Ashok Vihar and on that day he was working as DD writer from 12.00 midnight to 8.00 a.m. According to him at about 12.25 a.m. HC Surender got recorded arrival entry and investigation conducted by him, vide DD No. 9B. Attested copy of the same is Ex.PW2/A. The witness has not been cross examined by Ld. Defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.

(19) PW7 Ct. Jagdish has tendered his evidence on affidavit which is Ex.PW7/1 bearing his signatures at point A and B. He has relied upon DD No. 61 B dated 9.1.2012 which is Ex.PW7/A and DD No. 86B dated 9.1.2012 which is Ex.PW7/B. The witness has not been cross examined by Ld. Defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (20) PW8 HC Naresh Kumar has tendered his evidence on affidavit which is Ex.PW8/1 bearing his signatures at point A and B. He has relied upon the entry of Register No.19 vide mud No. 2424/12 dated 11.1.2012 which is Ex.PW8/A (running in two pages) and mud no. 2445/12 13.1.2012 which is Ex.PW8/B. The witness has not been cross examined by Ld. Defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 14 of 60 (21) PW10 Ct. Suneet Kumar has deposed that on 09­10.01.2012 he was posted as Constable at Police Station Keshav Puram. He deposed that on 11.01.2012 he joined the investigations of this case along with SI Rakesh. He has further deposed that he and SI Rakesh left the Police Station at around 8.00 a.m. and he went to Metro Station Keshav Puram where they met the complainant Mahesh and he joined in the investigations. He has further deposed that they went to Observation Home for Boys Kingsway Camp Mukherjee Nagar from where they picked up the juvenile accused Ravi. According to the witness SI Rakesh sent a message to HC Jitender to join them and hence HC Jitender joined them at Azadpur after which they themselves, HC Jitender, SI Rakesh, complainant Mahesh and accused Ravi went towards the railway lines Azadpur which was pointed out by Ravi as the place where he and the other boys normally met. According to the witness he pointed out towards 4­5 boys standing there and pointed out one boy. He has further deposed that they apprehended the said boy who on interrogation disclosed his name as Raman @ Chiku. He has further deposed that on interrogation Raman disclosed his involvement in the present case and also the fact that the stolen cycle was lying in his house. According to the witness the stolen purse and mobile were with Vicky and Birju. The arrest memo of accused Raman is Ex.PW9/D, his personal search is Ex.PW9/E and State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 15 of 60 disclosure statement is Ex.PW9/F. According to the witness he took them to his house from where he got recovered an Atlas cycle with Mahesh painted on the chain cover. He has further deposed that the cycle was taken into possession and seized vide memo Ex.PW9/G. He has further deposed that they returned to JJ Home Mukherjee Nagar and left Ravi over there. According to him the accused Raman took them to houses of Brij Kishore (juvenile) and Vicky but they could find them there. He has further deposed that accused Raman then took them to the spot of incident and pointed out the spot where the incident had taken place on which Investigating Officer prepared the pointing out memo which is Ex.PW10/A. He has further deposed that he then returned to Police Station where his statement was recorded. According to the witness on 12.01.12 he again joined the investigation of this case on which date he along with HC Jitender and SI Rakesh along with Raman had gone to Azadpur Jhuggi cluster for the search of remaining accused despite which they could not locate the other accused. He has further deposed that the search slip of the accused Raman was prepared and thereafter he was produced before the Ld. Ilaka Magistrate from where the accused was sent to JC. According to the witness as secret information was received by SI Rakesh regarding the accused on which on the same day he along with HC Jitender and SI Rakesh on which they went to Shalimar Bagh bus stand where they met the State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 16 of 60 secret informer and from there they went to Azadpur bus stand and kept a watch. The witness has deposed that at around 3.00 p.m. two boys got down from a bus and on the pointing out of the secret informer they apprehended them and on interrogation the boy whom he had apprehended disclosed his name as Brij Kishore whereas the boy who was apprehended by SI Rakesh disclosed his name as Vicky. Witness has correctly identified the accused Vicky in the court. According to the witness both the accused disclosed their involvement in the present case. He has further deposed that accused Vicky also disclosed that he was having the possession of the stolen mobile and could get the same recovered. The witness has deposed that thereafter the accused were arrested. He has further deposed that accused Vicky then led them to their house from where he got recovered a mobile phone make Nokia of black colour from his house and the Investigating Officer took the same into possession. The witness has deposed that the Investigating Officer checked the same and discovered that it was having the IMEI No. 352703042639537 with a battery. According to the witness he thereafter converted the same into a pullanda and sealed the same with the seal of RD and prepared the seizure memo Ex.PW10/E. The witness has deposed that they then went to the house of Birj Kishore (Juvenile) from where he got recovered a brown coloured purse containing the photograph of Mahesh. He has further deposed State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 17 of 60 that the Investigating Officer converted the same into a pullanda and sealed the same with the seal of RC and seized the pullanda vide Ex.PW10/F and thereafter they went to the spot where at the instance of the accused Vicky the Investigating Officer prepared the memo of pointing out which is Ex.PW10/G. According to the witness they thereafter went to BJRM Hospital where medical examination of both the accused were conducted and both the accused were sent to Observation Home for boys at Kingsway Camp. The witness has identified the case property i.e. mobile of black colour make Nokia 2700 bearing IMEI No. 352703042639537 which his Ex.P1; the cycle make Atlas with the seat of red colour and Mahesh painted with white colour on the chain cover which is Ex.P2 and one purse of brownish / tan colour which is Ex.P3.

(22) In his cross­examination by Ld. Defence Counsels, the witness has deposed that he never made any separate departure entry as and when he joined the investigations and has voluntarily explained that the Investigating Officer had made a joint entry. According to the witness the Investigating Officer had arranged a private vehicle but he is unable to tell the number of the said vehicle. He has explained that in total they were five police persons when they reached the house of Raman and in so far as he recollects the State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 18 of 60 mother of accused Raman was present at the house which was a small house of pucca construction. According to the witness the Investigating Officer made inquiries from the neighbours but no notice was given to them by the IO. He has deposed that they reached the house of Raman at about 1:00 PM and in his presence the Investigating Officer did not record the statement of the mother of accused Raman. The witness has deposed that he was not known to any of the accused prior to their apprehension. According to the witness they reached the house of Vicky at about 3:30­3:45 PM. He does not recollect the address where accused Vicky was residing on rent but sister of the accused Vicky and his mother were present. The witness has denied the suggestion that he never joined the investigations or that all documents were prepared while sitting at the Police Station and he only signed the same on the asking of the senior officers. He further denied that no disclosure statement was made by the accused Raman and Vicky or that the same was recorded by the Investigating Officer of his own. The witness has further denied that the accused Raman and Vicky were not apprehended in his presence in the manner as deposed by him. (23) PW11 HC Rajender Prashad has deposed that on 10.1.2011 he was posted as Duty Officer at Police Station Keshav Puram from 12:00 Midnight till 8:00 AM and at about 2:00 AM SI Rakesh Kumar handed over to him a rukka on the basis of which he State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 19 of 60 registered an FIR through the Computer Operator photocopy of which is Ex.PW11/A. According to the witness after registration of the FIR he made an endorsement on the rukka which is Ex.PW11/B. In his cross examination, the witness has denied the suggestion that the FIR has been ante­dated and ante­timed on the asking the investigating officer.

(24) PW11 HC Jitender has deposed that on 10.1.2012 he was posted as Head Constable at Police Station Keshav Puram and at about 12.30 midnight he was called by SI Rakesh and informed that there was some robbery incident near Ashok Vihar and he joined the investigation of the case. According to the witness the victim of the case Mahesh and one of the accused namely Ravi who was apprehended by the public persons were present in the police station as they had been left there by the officials of police station Ashok Vihar. The witness has deposed that statement of the victim was recorded and converted into a tehrir by SI Rakesh and FIR was registered on the basis of the same. According to the witness the accused Ravi was then apprehended and his personal was taken after which Investigating Officer recorded his version and thereafter they left the police station at about 2.30­2.45AM and reached at the spot of incident at Prem Bari Pul and prepared the site plan at his instance. According to the witness the victim was relieved from the State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 20 of 60 spot itself after preparation of site plan and recording of the statement of the Investigating Officer and accused Ravi was brought to the police station where he was interrogated and he disclosed that he could tell the whereabouts of his other associates who could be found at Village Azadpur and Rameshwar Nagar. The witness has deposed that they went there along with Ravi but could not find the other boys and then came back to the police station and informed his family about his apprehension. The witness has deposed that Ravi was then produced before the Juvenile Justice Board during the day and from there one day custody of Ravi was taken. The witness has further deposed that after 2.00PM he along with SI Rakesh and Ravi and the victim who had joined SI Rakesh went to Adarsh Nagar Terminal and Rameshwar Nagar and Azadpur Village and also Railway Colony where Ct. Sumit also joined them. The witness has deposed that at Railway Lines Azadpur, Ravi pointed out towards four to five boys standing there and pointed out one boy and the said boy was also pointed by Mahesh and thereafter they apprehended the said boy who on interrogation disclosed his name as Raman @ Chiku R/o Jhuggies near the Railway Line and disclosed his involvement in the present case and also the fact that the stolen cycle was lying in his house. The witness has deposed that Raman also disclosed that the stolen purse was with Birju and the stolen mobile was with Vicky. According to the witness thereafter the accused State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 21 of 60 Raman was arrested and personally searched and his disclosed statement was recorded vide memos Ex.PW9/D, Ex. PW9/E and Ex.PW9/F respectively. The witness has deposed that thereafter Raman took them to his house from where he got recovered an Atlas cycle with Mahesh painted on the chain­cover and with a red coloured seat cover and the cycle was taken into possession and seized vide memo Ex.PW9/G. The witness has deposed that the accused Raman then took them to the spot of incident and pointed out the spot vide Ex.PW10/A. The witness has deposed that on a secret information received by SI Rakesh at around 3:00 PM on the pointing out of secret informer they apprehended two boys and on interrogation the boy whom Ct. Sumit had apprehended disclosed his name as Birju and the boy who was apprehended by SI Rakesh disclosed his name as Vicky present and they both disclosed their involvement in the present case. The witness has identified the accused Vicky in the court. According to the witness the apprehension memo of accused Vicky who at the time of his apprehension disclosed that he was a minor is Ex.PW10/B, his personal search was conducted vide Ex.PW10/C and from his personal search the stolen mobile make NOKIA 2700 was also recovered which was checked by the Investigating Officer and the same and discovered that the IMEI No. 352703042639537 with a State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 22 of 60 battery and the same was seized vide memo Ex.PW10/E. The witness has deposed that the version / disclosure statement of Vicky was recorded vide Ex.PW10/D. The witness has further deposed that they also went to the spot where at the instance of the accused Vicky the Investigating Officer prepared the memo of pointing out which is Ex.PW10/G. The witness has correctly identified the accused persons and also the case property in the court. (25) In his cross examination by Ld. Defence counsels, the witness has deposed that he went to the room of SI Rakesh Duhan at about 12.30 midnight and that time SI Rakesh Duhan, HC Surender Dutt, Victim Mahesh and accused Ravi were already present there. According to him they reached at the spot of incident at about 2.30­2.45 AM and that the statement U/s 161Cr. P. C. of Mahesh was recorded at the spot at about 3.00AM. According to him there was a street light at the time when they reached the spot. He has denied that the site plan was not prepared in his presence that is why the same does not bears his signatures. He deposed that he along with SI Rakesh, accused Ravi returned to the police station at about 7.30. The witness has deposed that he along with SI Rakesh, Ct. Sunit, victim Mahesh and Ravi went to the house of Raman and at that time father and mother of Raman met them. According to the witness first time he went to the house of Vicky on 10.01.2012 and he had seen only one room in the house of Vicky and the mobile State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 23 of 60 phone was recovered from the pocket of Vicky and nothing was found from his house. The witness has deposed that the FIR was registered at about 2.00AM. He has further deposed that he was not known to any of the accused prior to their apprehension. According to him they reached the house of Vicky at about 4:30PM. The witness has denied that he never joined the investigations or that all documents were prepared while sitting at the Police Station and he only signed the same on the asking of senior officers. He has denied that no cycle was got recovered by Raman or that no mobile was got recovered by accused Vicky as claimed by him.

(26) PW12 SI Rakesh Duhan has deposed that on 09.01.2012 at about 10.35 PM a PCR call vide DD No. 61B which is Ex.PW7/A was marked to him on which he along with Ct. Jitender No. 1761/NW reached at the spot near Punjab Kesari Building but nobody was found at the spot and hence he contacted to the control room and it was revealed that the area pertains to PS Ashok Vihar and the call was transferred to that police station. According to the witness he lodged DD No.86B dated 09.01.2012 which is Ex.PW7/B. The witness has deposed that on 10.01.2012 HC Surender Dutt of PS Ashok Vihar came to the police station Keshav Puram at 12.00 midnight and has produced the complainant Mahesh Kumar before him along with his MLC and informed that the area pertains to the jurisdiction of PS Keshav Puram, Delhi. The State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 24 of 60 witness has further deposed that HC Surender also produced one apprehended boy namely Ravi. The witness has deposed that he called HC Jitender to join the investigation and thereafter he recorded the statement of complainant Mahesh Kumar and on the basis of which he prepared rukka Ex.PW12/A and got the FIR registered through HC Rajender / Duty Officer. The witness has deposed that Ravi disclosed his involvement in this case and thereafter his apprehension memo was prepared vide Ex.PW12/B and his version was recorded vide Ex.PW12/C. The witness has deposed that thereafter they reached at the place of incident along with Ravi, Mahesh and HC Jitender and Ct. Jitender. According to the witness at the instance of the complainant he prepared the site plan Ex.PW12/D. The witness has deposed that he thereafter recorded the statement of Mahesh Kumar and also conducted a raid at Azadpur but no one was found there. According to the witness in the evening time complainant Mahesh produced one mobile phone bill to him which was seized vide memo Ex.PW9/C and bills are Ex.PW12/E. (27) The witness has deposed that on the next morning Ravi was again taken in police remand from the observation home and he (witness) along with Ravi, complainant Mahresh, Ct. Sunit and HC Jitender reached at Azadpur and conduct a raid. According to him State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 25 of 60 one boy namely Raman @ Cheeku was apprehended at the instance of Completing Mahesh and Ravi. The witness has deposed that on his interrogation he disclosed about in involvement in this case and he was arrested vide Ex.PW9/D, his personal search was taken vide Ex.PW9/E and his disclosure statement was recorded vide memo Ex.PW9/F and thereafter at his instance one cycle was recovered from his house and the complainant identified the same as belong to him after which he seized the same vide memo Ex.PW9/G. (28) The witness has further deposed that on the next day i.e. on 12.01.2012 Raman was produced in the court and he was sent to Judicial Custody. The witness has deposed that on the same day they received secret information that two assailants were present at the Azadpur Terminal. According to him he along with secret informer, HC Jitender and Ct. Sunit reached at Azadpur Terminal and at the instance of secret informer two persons namely Vicky and Brij Kishore @ Birju and both were interrogated by him and they disclosed about their involvement in this case. The witness has deposed that he took custody of both persons and prepared the apprehension memo of Brij Kishroe vide Ex.PW12/F and Vicky was apprehended vide Ex.PW10/B and his personal search was taken vide Ex.PW10/C after which his version was recorded vide Ex.PW10/D. The witness has further deposed that he also recorded State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 26 of 60 version of Brij Kishore vide Ex.PW12/G. According to the witness one mobile of make NOKIA was recovered from the possession of Vicky and the same was sealed in a cloth pullanda with the seal of RD and seized the same vide memo Ex.PW10/E. One purse was recovered from the possession of Brij Kishore @ Birju which was also kept by him in a sealed cloth pullanda sealed with the seal of RD and seized the same vide seizure memo Ex.PW10/F. He has deposed that Brij Kishore pointed out the place of incident vide Ex.PW12/H. The witness has further deposed that Vicky also pointed out the place of incident vide Ex.PW10/G. The witness has deposed that on 19.01.2012 TIP proceedings of case property was conducted at Tis Hazari Courts on his application and after TIP proceedings he obtained the copy of TIP proceedings and complainant Mahesh correctly identified the mobile and purse during the TIP proceedings. According to him on 20.01.2012 TIP of Vicky was conducted and SI Devi Lal handed over the copy of TIP proceedings to him in which complainant Mahesh identified him correctly. The witness has deposed that on 30.01.2012 TIP of Brij Kishore was conducted and he obtained the copy of TIP proceedings in which complainant Mahesh correctly identified him. He has further deposed that during his investigation he prepared the site plan of the place of recovery i.e. Azadpur Terminal where purse and State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 27 of 60 mobile were recovered vide Ex.PW12/I. He has identified the accused Raman and Vicky in the Court. He has also identified the case property Mobile phone Nokia 2700 bearing IMEI No. 352703042639537 and cycle make Atlas with the seat of red colour Mahesh painted with white colour on the chain cover which are Ex.P1 and Ex.P2.

(29) In his cross examination by Ld. Defence Counsel the witness has deposed that he visited the spot of incident first time on 10.1.2012 at about 4:15 AM but he did not record the statement of Surender Dutt at that time. According to him he recorded the supplementary statement of complainant Mahesh Kumar at the place of incident. He has deposed that there was a street light at the spot of incident and explained that he might not have shown the street light in the site plan. According to him he returned back to the police station on 10.01.2012 at about 7.30PM along with HC Jitender and Ravi and recorded statement of HC Jitender. According to him he asked one or two persons to join the police proceedings but none was agreed and left the place. According to him he along with the other four persons namely HC Jitender, Ct. Sunit, Mahesh and Ravi and Raman reached at the house of Raman. He has deposed that he did not give any notice to the persons who refused to join the investigations. The witness has deposed that first time he went to the house of Vicky on 12.01.2012 along with HC Jitender, State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 28 of 60 Ct. Sunit, Vicky and Brij Kishore @ Birju. According to the witness there were about 20­25 public person at the Bus Terminal Azadpur from where Vicky was arrested. He has deposed that the mobile was recovered from the right pocket of pant of Vickey. He has deposed that the accused Vicky was about to run on seeing them but they apprehended him immediately. Witness has denied that he did not carry out the investigations properly and independently or that all documents were prepared while sitting at the Police Station which were got signed by the official witnesses on the asking of the Senior Officers. He has further denied that no disclosure statement was made by the accused Raman and Vicky or that the same was recorded by the Investigating Officer of his own. The witness has further denied that the accused Raman and Vicky were not apprehended in the manner as deposed by him. He further denied that no cycle was got recovered by Raman or that no mobile was got recovered by accused Vicky as claimed by him.

STATEMENT OF ACCUSED & DEFENCE EVIDENCE:

(30) After completion of the prosecution evidence, the statements of the accused Raman @ Chiku and Vicky were recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to them which they have denied. Both the accused have stated that they have nothing to do with the alleged incident and have been State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 29 of 60 falsely implicated in this case by the police after lifting from their houses. They have further stated that the alleged articles i.e. mobile phone and cycle have been planted upon them. However, they have not examined any witness in defence.

FINDINGS:

(31) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the accused:

(32) The case of the prosecution is that at the time of incident one assailant namely Ravi (since juvenile) had been apprehended at the spot after which he lead the arrest of the accused before this court namely Raman @ Chiku and Vicky. Both Raman and Vicky have been identified in the court by the victim Mahesh as the assailants. In fact Raman was apprehended at the instance of victim Mahesh whereas Vicky has been apprehended later and had also participated in the Judicial Test Identification Parade where he was identified by the victim vide proceedings Ex.PW9/I. This being the State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 30 of 60 background, I hereby hold that the identity of the accused Raman @ Chiku and Vicky stands established.

Medical Evidence:

(33) The case of the prosecution is that during the incident the victim Mahesh has been given fist and leg blows on account of which he has sustained grievous injuries on nose. Dr. Shipra Rampal (PW3) has duly proved the MLC Ex.PW3/D of victim Mahesh prepared by Dr. Chetan under supervision of Dr. Sandeep CMO. She has also proved the X­Ray Report Ex.PW3/B showing that fracture of the nasal bones has been seen and it was simple fracture. She has also proved X­Ray Plate No. 69 vide Ex.PW3/C. She has further proved that at the time victim was brought to the hospital he was having Nasal bleeding and Abrasion over glabilla and Swelling over Nose which are compatible to the injuries shown in the MLC. This being the background, I hereby hold that the prosecution has been able to prove that the victim Mahesh had suffered Grievous injury i.e. Nasal Fracture and medical evidence is compatible to the prosecution case.

Both the accused Raman @ Chiku and Vicky were major (i.e. above 18 years of age):

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 31 of 60

(34) The case of the prosecution is that both the accused wre major at the time of the incident. Vicky had initially claimed juvenility as his defence and was produced before the Juvenile Justice Board but later during inquiry, ossification test was conducted and Dr. Shipra Rampal (PW3), Dr. Javed Salam (PW4) and Dr. Abhilasha K K (PW5) have proved that at the relevant time he was between 20 to 22 years of age and hence he was charge sheeted in the present case. In so far as the accused Raman @ Chiku is concerned, Sangeeta (PW6) has proved his admission register as Ex.PW6/A (admission register) and Ex.PW6/B (pasting file) confirming that his date of birth as mentioned in the school record is 19.9.1993 showing that on the date of incident he was 18 years and 4 months of age (above 18 years).

Ocular Evidence:

(35) It is settled law that 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. (36) The entire case of the prosecution revolves around testimony of eye witness / victim Mahesh (PW9) who had the occasion of clearly observing all the assailants who had given him leg and fist blows out of whom one of them i.e. Ravi (juvenile) was apprehended at the spot of the incident itself by public persons and State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 32 of 60 passerbyes who came to his rescue. The relevant portion of his testimony is reproduced as under:

"I am original resident of Pratapgarh and I am residing at the aforementioned address in Delhi. I am working in a factory at Mangolpuri Industrial Area at B­60, Phase­II.

On 9.1.2012 after finishing my duty at about 10 PM I was going to my house on my cycle when at about 10 PM I reached near Prembari Pull and was going on the wrong side, suddenly four boys came from the Azadpur side and surrounded me. The first boy pushed me down whereas the remaining boy gave me fist and leg blows and removed my brown coloured purse containing Rs.210/­ and some papers. Thereafter they also removed my mobile make Nokia 2700 bearing SIM no. 997133953 and also took my cycle make Atlas having a seat of red colour and also bearing my name Mahesh painted with a white paint on the chain cover. I received injuries on my face and nose and started bleeding on which I raised on alarm on which the said boy started running away but the public persons who were passing through the area caught hold of one of the boys and gave him a thrashing. One person who was passing through the area in a Maruti car made a call on 100 number. In the meanwhile the said person disclose his name as Ravi (court observation: juvenile accused).

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 33 of 60

The PCR van came to the spot and removed me and also Ravi to BJRM hospital where we were provided treatment. We were first taken to PS Ashok Vihar but since the jurisdiction fell into Keshav Puram hence we were taken there where my statement was recorded which is Ex.PW9/A bearing my signatures at point A. thereafter I was again taken to the spot where I shown the place of incident to the police and the site plan was prepared vide Ex.PW9/B bearing my signatures at point A. I was then relieved from the spot.

On 10.1.2012 I went to the police station and handed over the bill of purchasing of mobile make nokia 2700 which the Investigating Officer seized vide memo Ex.PW9/C bearing my signatures at point A. I did not had any bill regarding purchasing of cycle hence I could not hand over the same to the IO.

On 11.1.2012 I had joined the Investigating Officer and a raid was conducted in the area of Azadpur. Near the railway line one boy was sitting and I immediately identified him as the same boy who was one of the assailants. Ravi was also with us at that time and he too had pointed out to the said boy whose name we later on came to know as Raman. After the said boy was apprehended, police apprehended him vide memo Ex.PW9/D bearing my signatures at point A his personal search was conducted vide Ex.PW9/E bearing my signatures at point A. He was interrogated State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 34 of 60 by the police wherein he disclosed his involvement in the present case and also disclosed that he could get the cycle stolen from me from his house which disclosure statement is Ex.PW9/F bearing my signatures at point A. (objected to by Ld. Defence Counsel.). Thereafter the accused Raman led us to his house from where he got recovered the atlas cycle. I immediately identified the same as my name Mahesh was mentioned on the same. The seizure memo the cycle is Ex.PW9/G bearing my signatures at point A. On 19.1.2012 I was called to the court of Ld. MM where I identified my mobile and purse. The said proceedings are Ex.PW9/H bearing my signatures at point A. On 20.1.2012 I was called at Kingsway Camp Observation Home for Boys where I identified one of the assailants. The said proceedings are Ex.PW9/I bearing my signatures at point A. (Court observation: Accused Brij Kishore and Ravi are juvenile and hence the proceedings conducted qua them are irrelevant in the present case and hence the same need not be brought on record).

I can identify both the accused Raman and Vicky. At this stage the witness has correctly identified both the accused Raman and Vicky.

I can identified the case property. At this stage the case property i.e. cycle and mobile which have been released to the witness on supardari has been produced. The mobile State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 35 of 60 of black colour make nokia 2700 bearing IMEI No. 352703042639537 is Ex.P1.

The cycle make Atlas has also been produced by the witness with the seat of red colour and Mahesh painted with white colour on the chain cover is Ex.P2.

The MHC (M) has produced one pullanda duly sealed with the court seal of SSL is opened and it found to contain one purse of brownish / tan colour. The witness has identified the said purse as belonging to him. The purse is found to contain some papers and his own photograph which he has also identified and has pointed out that there is no money in the same. The said purse is Ex.P3."

(37) Witness Mahesh (PW9) has been subjected to sustained cross examination wherein he has explained that he is Mason / Mistri by profession and his working hours on the date of incident were from 9:00 Am till 9:30 PM. He is unable to tell as to who caught hold of his hand and who assaulted him but has very specifically identified the accused Vikcy as the person who removed his mobile phone. He has further explained that at the place of incident there was sufficient light and he could see the faces of the assailants and also explained that he had come to the wrong side of the road and was crossing the road to reach his house when the incident had taken place. He is unable to tell the name of the person State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 36 of 60 who had made a PCR call and has explained that he was a passerbye on the road and has further stated that his shirt had also become smeared with blood on account of the injury but the police did not seized his shirt.

(38) I have duly considered the testimony of the Mahesh and it is evident from the same that at the time of the incident when he raised an alarm the boys started running away and one of the boy i.e. Ravi (since juvenile) had been apprehended at the spot by public persons and was handed over to the police who reached the spot prusuant to PCR call. Witness Mahesh has proved the proceedings regarding apprehension of Ravi (since juvenile), apprehension and arrest of accused Raman and recovery of stolen cycle make Atlas having a seat of red colour and also bearing name of Mahesh painted with a white paint on the chain cover (Ex.P2) from the possession of accused Raman. He has also proved the Judicial Test Identification Parade proceeding of mobile of black colour make nokia 2700 bearing IMEI No. 352703042639537 (Ex.P1) whose purchase bill he had handed over to the Investigating Officer on 10.1.2012 who seized the same vide memo Ex.PW9/C. Here I may observe that particulars contained in the bill matched with the mobile phone which has been allegedly got recovered by the accused Vicky from his house in respect of which Judicial Test Identification State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 37 of 60 Parade proceedings were also conducted and the victim Mahesh has correctly identified the same.

(39) The testimony of victim Mahesh also finds due corroboration from the testimonies of Ct. Sunil Kumar (PW10), HC Jitender (PW11) and SI Rakesh Duhan (PW12) in so far as the aspect of apprehension and arrest of the accused persons, recovery of stolen stolen cycle make Atlas having a seat of red colour and also bearing name of Mahesh painted with a white paint on the chain cover (Ex.P2) and stolen mobile of black colour make Nokia 2700 bearing IMEI no. 352703042639537 (Ex.P1), is concerned. (40) In the testimonies of the above witnesses there are various discrepancies with regard to the time when the police party has visited the house of accused Raman and Vicky is concerned and the description of the said properties. In this regard reference is being made to the case of 'Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat', reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court where the Hon'ble Supreme Court has observed that the powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another on account of difference in observation power / perception of the various witnesses. Further, State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 38 of 60 most of the time witnesses inform about the time on the basis of their own approximation and assessment. In this background the discrepancies occurring in the testimonies of the various witnesses with regard to the time and also with regard to the description of the properties are minor and will not be fatal to the case of the prosecution.

(41) It is also pointed out by the Ld. Defence Counsels that despite opportunity, deliberately no public witness has been joined either at the time of apprehension and arrest of the accused Raman and recovery of stolen cycle from his possession and also apprehension and arrest of accused Vicky and recovery of stolen mobile phone from his house. Further in so far as the non­joining of public witnesses is concerned, it is common experience that public persons are generally reluctant to join police proceedings. There is general Apathy and Indifference on the part of public to join such proceedings. This position of law was reiterated in 'Aslam and Ors. (Mohd.) Vs. State' reported in 2010 III AD (Delhi) 133. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish Vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 39 of 60 Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai vs. State, AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend Police Station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of bicycle at the instance of accused Raman @ Chiku and recovery of mobile phone at the instance of accused Vicky. Their testimony cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, (1996)3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khimavs. The State of Saurashtra, AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two authorities were also relied upon by Hon'ble High Court in Aslam & Ors. (Mohd.) Vs. State, 2010 III AD (Delhi) 133.

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 40 of 60 (42) I may observe that in so far as the victim Mahesh is concerned, there is no history of his being known to the assailants in any manner nor there is any history of animosity between him and the accused. The place of incident is a motorable road with heavy traffic round the clock and sufficient light in the form of electric poles. The victim had been given repeated fist and leg blows as a result of which he received injury on his nose and there was sufficient opportunity for him during this to have seen the the accused persons. Further one of the assailants has been apprehended at the spot itself (i.e. juvenile Ravi) and it is who led the police to the other accused along with the victim whom the victim Mahesh has independently identified (i.e. accused Raman). There is no reason to doubt his version in respect of the same. The identity of the accused persons having established and the recovery of the stolen cycle being effected from the house of accused Raman and recovery of stolen mobile from the house of Vicky at his instance IMEI number of which matched with the details given in the bill handed over to the Investigating Officer by the victim, I hold that the prosecution has been able to prove and established the allegations against the accused Raman @ Chiku and Vicky.

Disclosure of the Accused / Recovery of Stolen Cycle and Mobile Phone:

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 41 of 60

(43) The case of the prosecution that pursuant to his arrest on

11.1.2012 the accused Raman @ Chiku disclosed his involvement in the present case and also the fact that the stolen cycle was lying in his house. The accused Raman also disclosed that the stolen purse was with Birju and the mobile phone of the victim was with Vicky. The disclosure statement of the accused Raman @ Chiku was recorded vide Ex.PW9/F after which the accused Raman took the police party to his house from where he got recovered an Atlas cycle with the word 'Mahesh' painted on the chain­cover and with a red coloured seat cover which cycle was taken into possession and seized vide memo Ex.PW9/G. Further, at the instance of accused Raman @ Chiku the accused Vicky was apprehended from whose possession one mobile make NOKIA 2700 was recovered having the IMEI No. 352703042639537 with a battery, which the accused disclosed as belonging to the victim. The said mobile phone was thereafter seized vide memo Ex.PW10/E. (44) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 42 of 60 relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

(45) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

1. Anything, state of things, or relation of things, or capable of being perceived by the senses,

2. Any mental condition of which any person is conscious.

(46) It further provides five illustrations as to what would constitute a fact which are as under:

(a) That there are certain objects arranged in a certain order in a certain place, is a fact

(b) That a man heard or saw something, is a fact.

        (c)           That a man said certain words, is a fact.

        (d)           That a man holds a certain opinion, has a certain  

intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact. State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 43 of 60 (47) A co­joint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".

(48) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King­Emperor reported in 74 Ind App 65: State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 44 of 60

AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under:­ "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"

".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 45 of 60 held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...." "........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

(49) After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 46 of 60 distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 47 of 60 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.

(50) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 48 of 60 Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.

(51) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned.

However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 49 of 60 by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place"

where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"

(52) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 50 of 60 facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.

(53) Applying the settled principles of law to the facts of the present case, it is evident that it was not within the knowledge of the police that the robbed cycle of the victim whose description and details (have a red coloured seat and the words 'Mahesh' painted with the white paint on the chain cover) was in the possession of accused Raman @ Chiku. It was also not within the knowledge of the police that the mobile phone of the victim whose IMEI details and number had been given by the victim to the police was with the accused Vicky. What turns on the fact that accused Raman @ Chiku led the police to his house from where he got recovered the cycle of the victim, which place was not in the knowledge of the police previously. The said cycle had been duly identified by the victim Mahesh which is Ex.P­2. The fact that Raman @ Chiku got recovered the cycle of the victim, is a strong pointer towards the guilt of accused Raman @ Chiku. Further, it has been proved by the various prosecution witnesses that from the possession of accused Vicky the mobile phone make NOKIA 2700 having the IMEI No. 352703042639537 with a battery, belonging to the victim. (54) In this background, I hold that the recovery of the stolen State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 51 of 60 articles i.e. cycle and mobile phone pursuant to the disclosure statements of the accused Raman and Vicky stands proved beyond reasonable doubt and are strong pointer towards the guilt of the accused.

FINAL CONCLUSION:

(55) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 52 of 60

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(56) Applying the above settled principles of law to the facts of present case, it is evident that identity of the accused Raman @ Chiku and Vicky stands established. It stands established that on 10.1.2012 when the victim Mahesh was returning back from his work and reached near Prem Bari Pul, the accused Raman @ Chiku and Vicky along with their associates Ravi (since juvenile) and Brij Kishore (since juvenile) stopped him and physically assaulted him by giving fist and leg blows and robbed his brown coloured purse containing Rs.210/­ and some papers, mobile phone make Nokia 2700 bearing IMEI No. 352703042639537 and SIM No. 9971337953 and bicycle make Atlas having red coloured seat and the words 'Mahesh' painted with white paint on the chain cover and thereafter ran away from the spot. It stands established that while trying to flee from the spot, Ravi (since juvenile) was apprehended by the public persons / passerbyes and the victim Mahesh after which a passerbye in a car informed the police about the incident by State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 53 of 60 dialing 100 number. It stands established that when the PCR Van reached the spot, Ravi (juvenile) was handed over to the police after which both the victim Mahesh and Ravi (juvenile) were taken to the BJRM hospital and provided treatment. It stands established that during investigations on 11.1.2012 at the instance of Ravi (juvenile) the accused Raman was arrested from the area of Azadpur in the presence of the complainant Mahesh who identified Raman as one of the assailants. It stands established that pursuant to the arrest of accused Raman, he disclosed his involvement in the present case pursuant to which he got recovered the stolen cycle make Atlas having red coloured seat and the words 'Mahesh' painted with white paint on the chain cover from his house. It further stands established that during investigations pursuant to a secret information, the accused Vicky and Brij Kishore (juvenile) was arrested from Azadpur Terminal and pursuant to his arrest and during his interrogation Vicky disclosed his involvement in the case and in his personal search the stolen mobile phone of the victim Mahesh make Nokia 2700 bearing IMEI No. 352703042639537 and SIM No. 9971337953 was recovered. It stands established that in the incident, the victim Mahesh received injuries on his face and nose and the medical evidence on record establishes that when he was taken to the hospital he was bleeding from his nose and there were abrasions over glabilla and swelling over nose and nasal fracture which State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 54 of 60 injuries were opined to 'Grievous' in nature which injuries had been caused on account of the fist and leg blows given collectively by the accused to the victim Mahesh.

(57) There are two stages in criminal prosecution. The first obviously is commission of the crime and the second is investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

(58) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All 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 circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 55 of 60 (59) In view of the above, I hereby hold that in so far as the offence under Section 397 Indian Penal Code is concerned, the prosecution has not been able to prove and substantiate the same and hence both the accused Raman @ Chiku and Vicky are hereby acquitted of the same. However, in so far as the offence under Section 392 read with Section 394 and Section 411 Indian Penal Code is concerned, the same stands established and proved and hence both the accused Raman @ Chiku and Vicky are hereby held guilty for the same and accordingly convicted.

(60) Be listed for arguments on sentence on 23.4.2013.

Announced in the open Court                                 (Dr. KAMINI LAU)
Dated: 16.4.2013                                          ASJ (NW)­II: ROHINI




State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram                  Page 56 of 60

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Sessions Case No. 44/2013 Unique Case ID: 02404R0107582012 State Vs. 1. Raman @ Chiku S/o Pawan R/o H. No. A­183, Railway Colony, near Railway Station Azadpur, Delhi.

(Convicted)

2. Vicky S/o Sube Singh R/o H. No. 74­B, Jhodia Chowk, Rana Building, Azadpur, Delhi.

                                          (Convicted) 

FIR No.                     :             8/2012
Police Station              :             Keshav Puram 
Under Section               :             392/394/397/411/34 IPC

Date of conviction :                      16.4.2013
Arguments heard on :                      23.4.2013 & 26.4.2013
Date of sentence   :                      27.4.2013


APPEARANCE:

Present:      Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.

Convicts Raman @ Chiku and Vicky in Judicial Custody with Sh. S. K. Azad and Sh. Rajender Kumar, Advocates. State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 57 of 60 ORDER ON SENTENCE:

As per the allegations on 10.1.2012 at about 1:00 PM near Prem Bari Pul, just before the Nehar, the accused Raman @ Chiku and Vicky along with their associates Ravi and Brij Kishore (both juvenile) committed robbery on the complainant Mahesh of his brown coloured purse containing Rs.210/­, some documents and photograph and also removed his mobile phone make Nokia 2700 bearing No. 9971337953 and his bicycle as well and while committing the said robbery they have also caused voluntary hurt on his person and assaulted him by giving fist and kick blows.

On the basis of the testimonies of various witnesses examined by the prosecution particularly the victims Mahesh (PW9) and also on the basis of other material placed on record, this court vide a detailed judgment dated 16.4.2013 has acquitted both the accused Raman @ Chiku and Vicky of the offence under Section 397 Indian Penal Code but has held them guilty for the offence under Section 392 read with Section 394 and Section 411 Indian Penal Code.

Heard arguments on the point of sentence. The convict Raman @ Chiku is young boy aged about 22 years, unmarried, 8th class pass, doing a private job having a family comprising of aged parents, two younger brothers and two sisters (both married). Apart from the present case, he is also involved in another case i.e. FIR No. 267/11 dated 6.10.2011 under Section 392/394/411/34 IPC Police State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 58 of 60 Station Adarsh Nagar. He has remained in judicial custody in the present case for a period of One Year Three Months & Sixteen Days.

The convict Vicky is young boy aged about 18 years, unmarried, 9th class pass, having a family comprising of aged parents, two brothers and two sisters. He is not involved in any other case. He has remained in judicial custody in the present case for a period of Thirty Days.

Ld. Defence Counsels for the convicts have vehemently argued that the convicts are the sole bread earners of their families and request that a lenient view be taken against them. Ld. Counsel for the accused Raman has submitted that though the convict is involved in one other case but he is not a previous convict. On the other hand the Ld. Addl. Public Prosecutor has prayed for a stern view against the convicts keeping in view the allegations involved.

I have considered the rival contentions. The convicts are young boys in their late teens and early twenties having a families comprising of aged parents, brothers and sisters and are the sole bread earners of their families. In view of the above, any harsh view taken against the convicts would not only be detrimental against the convicts but also their entire families.

Keeping in view the above, a lenient view is taken against the convicts Raman @ Chiku and Vicky who are hereby sentenced to Rigorous Imprisonment for a period of TWO YEARS and fine for a State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram Page 59 of 60 sum of Rs.500/­ for the offence under Section 392 read with 394 Indian Penal Code. In default of payment of fine the convicts shall undergo Simple Imprisonment for a period of TWO DAYS.

Further, both the convicts Raman @ Chiku and Vicky who are hereby sentenced to Rigorous Imprisonment for a period of ONE YEAR for the offence under Section 411 Indian Penal Code.

Both the above sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules.

The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.

File be consigned to Record Room.

Announced in the open Court                                 (Dr. KAMINI LAU)
Dated: 27.4.2013                                          ASJ (NW)­II: ROHINI

State Vs. Raman @ Chiku, FIR No. 8/12, PS Keshav Puram               Page 60 of 60