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[Cites 19, Cited by 0]

Delhi District Court

State vs . on 18 May, 2012

     IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                   ROHINI COURTS, DELHI

SC NO.268/10
FIR NO. 266/07
U/S 392/397/411/34 IPC
PS Uttam Nagar
Unique Case ID No. : 02404R0009702008

               State 

               Vs. 

     1. Rajender Singh @ Monu s/o Jogender Singh

       r/o H.No. A­62, Shiva Enclave, Uttam Nagar, N.Delhi.

     2. Naresh s/o Dhanpat

       r/o R­22, Vikas Nagar, Uttam Nagar, N.Delhi.

     3. Vijay s/o Vishambar Dayal

       r/o H.No. B­49, J.J. Colony, Shiv Vihar,

       Uttam Nagar, N.Delhi.

Date when committed to the court of Sessions :23.07.2007
Date when case reserved for judgment        : 11.05.2012
Judgment pronounced on                        : 18.05.2012

JUDGMENT:

1. The case of the prosecution in brief is that on 29.03.2007, HC Ramesh Chand along with Ct. Manoj Kumar, Ct. Babu Singh and Ct. Shiv Shanker, were on duty for checking incidents of snatching SC No.268/10 Page 1/36 etc at Metro Station Uttam Nagar West, main Najafgarh Road, at about 4 p.m, and at about 5.10 p.m, one three wheeler scooter no.DL1RD­3218 of yellow colour came from the side of Najafgarh and was moving towards Uttam Nagar which was stopped for checking, then the two pillion riders started running away as soon as the said TSR was stopped, who were overpowered, whose name transpired as Vijay and Rajender Singh and name of the driver of the TSR was Naresh and on the search of accused Rajender Singh, from the right side pocket of his pant, one dagger was recovered and from the right pocket of the pant of Vijay, one mobile phone without SIM card was recovered and he could not explain the possession of the mobile phone despite interrogation and the driver of the TSR namely Naresh, on interrogation, disclosed that the said TSR has been taken by him on hire basis and the said mobile, as per interrogation of Vijay, was looted along with Rs.250/­ by them at night time at Balaji Chowk after showing the said passenger the dagger and the passenger was made to get off the TSR there and the SIM card of the said mobile was kept by the side of a pillar near his house and on which the said Head Constable requested 3/4 public persons to join the proceedings but none agreed and thereafter, the sketch of the said knife was prepared and it was sealed with the seal of RC and was seized and the FIR was got registered and investigation was entrusted to the said Head Constable, who arrested the accused and SC No.268/10 Page 2/36 recorded their disclosure statements and the chip of the mobile phone was recovered, from which the phone number transpired as 9911249965 and the rightful owner of the said mobile phone was searched and one Rakesh Singh was joined in the investigation, who identified all the three accused as the persons who, on 28.03.2007, at night time, had committed robbery and gave beatings to him in the TSR and accordingly, Section 397 IPC was added to the case and the charge sheet was filed against all the three accused.

2. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 25.07.2008, framed charge against all the accused u/s 392/34 & 397 IPC and a separate charge u/s 411 IPC against accused Vijay, to which they pleaded not guilty and claimed trial.

3. The prosecution, in order to prove its case, has produced as many as 9 witnesses, which have been discussed below.

4. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and examined Sh. Pritpal Singh and Sh. Vijay Kumar as DW1 and DW2 in their defence, who deposed that accused Rajender Singh and accused Vijay were with them respectively on 28.03.2007, right from 4 or 4.30 p.m or 3 or 3.30 p.m respectively and they deposed that accused had been falsely SC No.268/10 Page 3/36 implicated in the case, but both the defence witnesses, in their respective cross examination, admitted that they did not take any action against false implication of the accused nor reported the matter to the higher police authorities nor they advised or took themselves any action in a court of law nor they could assign any reason for not taking any action against the false implication of the accused.

5. I have heard Ld. APP for the state, Sh. A.K. Chawla, Advocate for the accused and perused the record.

6. PW1 Rakesh deposed that on 28.03.2007, between 11 p.m and 12 mid night, he was coming back after finishing his work at Rajender Nagar and when he reached Uttam Nagar, he hired one TSR wherein two persons were already sitting in the TSR and he also joined them as the passenger for going to his residence at Balaji Chowk, Mohan Garden and when they reached near Aggarwal Sweet shop, near Balaji Chowk, half kilometer away from his house, at about 11 p.m, the TSR was stopped by the driver at the instance of one of the two boys, who gave him beatings and that the driver and the two boys, who were sitting in the TSR, are present in the court and that accused Rajender showed him the knife and put it on his chest and snatched his mobile phone bearing no.9911249965 make Nokia and Rs.250/­ cash and accused Vijay and Rajender forcibly SC No.268/10 Page 4/36 snatched his above said belongings by pointing out knife and giving him beatings and the accused persons went away in the said TSR after robbing him and that he went to his house but he did not lodge any complaint to the police as he sustained injury and it was odd hours in the night and he narrated the incident to his wife Smt. Praba Devi and on the following day, he went to the PS after receiving a phone call at about 8 p.m, where police showed him his mobile phone and he produced the bill of the mobile phone to the police which is already Ex.PW3/A which was seized by the IO vide memo Ex.PW1/A and he identified the accused persons at the PS as driver of the TSR and two other persons who were sitting in the said TSR at that time and that the identification memo is Ex.PW1/B and thereafter he produced the case property which was on superdari with him and the mobile phone was identified and exhibited as Ex.P1.

7. In his cross examination on behalf of the accused, he replied that he was working as a cook in the parties and on 28.03.2007, he was working in China Market, Karol Bagh and was preparing food for a Langar on the festival of Ashtami and Navami which was organized by his staff members. He further answered that on 28.03.2007, he started preparing Langar from 7 a.m which was over at about 3 or 4 p.m and he remained at China Market till 5 or 6 p.m and thereafter he came at Rajender Nagar Market for other SC No.268/10 Page 5/36 management. He further answered that he left Rajender Nagar in a private bus at about 8.45 or 9 p.m and alighted at bus stand Uttam Nagar at about 10 or 10.15 p.m and started waiting for 15 to 20 minutes for TSR and for taking a TSR, some distance was to be covered from the said bus stand. He further answered that TSR of the accused was already there wherein two passengers were already sitting, who are the two accused persons present in court. He admitted that it was night time when incident took place and it was dark but he denied the suggestion that he cannot identify the accused due to darkness. He could not tell the registration number of the TSR but the same was not of the CNG fuel but its colour was same as that of the three wheelers which were old and were not being run on the CNG fuel. Thereafter the witness, on asking of question by the Ld. Defence Counsel, has touched accused Rajender correctly who showed him the knife. He answered that he was taken to DDU hospital by the police on the next day at night hours for his medical examination. Thereafter a question was asked by the Ld. Defence Counsel to the effect that the witness identified the accused at the instance of the police, though it was disallowed being exercise to mislead the witness and was observed not to be read in evidence, but for the appreciation of the Appellate Court, the answer was taken on record wherein the witness replied in negative and further answered that he identified the accused of his own. He further answered that SC No.268/10 Page 6/36 accused persons were already present in the PS when he reached there. He denied the suggestion that he had named the accused persons at the behest of the police.

8. PW2 Prabah Devi is the wife of the PW1, the complainant, who deposed that about three years ago, her husband Rakesh Singh reached at the house at about 12 mid night and he was frightened and that her husband was working as cook in the marriages and when she asked her husband as to why he was frightened, he told her that he had taken a TSR at Uttam Nagar terminal to come to the house and at that time two passengers were already sitting in the TSR, who, on the way, robbed his telephone and a sum of Rs.200/­ or Rs.250/­ with the help of knife and that he was also given fist blows by the culprits and she did not know anything else about the case. In her cross examination on behalf of the accused, she admitted that whatever her husband told to her, she narrated to the police officials and same thing before the court as well as today and that she has no personal knowledge about the case but she denied the suggestion that she had been tutored by the police.

9. PW3 Sh. Puneet Arora is the owner of the shop of mobile phone, who produced the original receipt book containing bill no.216 dated 14.12.2005, whereby he sold the said mobile bearing IMEI number 357593005127660 to one Rakesh Singh and the SC No.268/10 Page 7/36 receipt is Ex.PW3/A and in his cross examination, he denied the suggestion that the said receipt was ante­timed and was prepared later on at the instance of the IO.

10. PW4 Sh. Inderjeet Singh is the father in law of the complainant Rakesh Singh, who deposed that on 29.03.2007, at about 8 p.m, he received a telephone call from PS and the police officer asked him as to whom the phone number 9911249965 belonged to which he replied that it belonged to said Sh. Rakesh Singh, his son in law and police official informed him that the said mobile phone was recovered from some persons and asked him to send Rakesh Singh in the PS and that he immediately informed Rakesh Singh and sent him to PS. In his cross examination on behalf of the accused, he denied the suggestion that no such phone call was received by him from PS and for this reason he was unable to tell the name of the police official who called him. He further replied that he had not brought any record regarding the phone installed at his house on which the alleged call was received.

11. PW5 HC Anil Kumar was the duty officer who proved the copy of FIR as Ex.PW5/A and DD No.36A as Ex.PW5/B and he was not cross examined on behalf of the accused. PW6 Dr. Rita Baruah proved the handwriting and signatures of Dr. Rahul Singh on the MLC of the complainant Rakesh Singh which is Ex.PW6/A and that SC No.268/10 Page 8/36 of accused Vijay as Ex.PW6/B.

12. PW8 Retd. SI Randhir Singh was the subsequent IO to whom the case was entrusted for further investigation and he deposed that during investigation, all the three accused present in court were identified by one Rakesh in the PS, who was robbed by them at the point of knife and at the instance of said complainant Rakesh, HC Ramesh prepared the site plan which is Ex.PW8/A. In his cross examination on behalf of the accused, he replied that he did not sign the site plan.

13. PW7 Ct. Manoj Kumar deposed in his examination in chief that on 29.03.2007, he along with Ct. Babu Singh, Ct. Shiv Shanker and HC Ramesh were checking the vehicles under Uttam Nagar West Metro Station and at about 5.10 p.m a TSR came from Najafgarh side having its number as 3218, which was stopped by them and two boys, who were sitting on the back portion of the said TSR, tried to run away but were apprehended by them and they were interrogated and their formal search was conducted and from the possession of accused Rajender, one dagger was recovered from the right pocket of his pant and from the right pocket of the pant of accused Vijay, one mobile phone make Nokia 1100 of grey and black colour was recovered which was having no SIM card and on interrogation from both the said boys and the driver of the said TSR, SC No.268/10 Page 9/36 it transpired that on the previous night in the same TSR, one passenger was robbed by them on the point of said dagger and they took Rs.250/­ cash and said mobile from him and sketch of the dagger Ex.PW7/A was prepared which was sealed with the seal of RC and was seized vide memo Ex.PW7/B and that the mobile phone was also taken into possession vide seizure memo Ex.PW7/C and thereafter IO prepared a rukka and handed over the same to Ct. Babu Singh for getting the case registered, who came back at the spot with the copy of FIR and rukka and accused Vijay present in court disclosed that he had kept the SIM card of the mobile phone near a pillar at his house vide his disclosure statement Ex.PW7/D and thereafter the accused led them to the said place i.e. J.J. Colony, Shiv Vihar and got recovered the SIM card which was inserted in the mobile phone by the IO and IO gave a mobile phone call on the last dialed number, on which a person by the name of Jeet responded and he revealed that the said mobile phone number was of one of his relatives namely Rakesh and then IO asked him to come to the PS with the said Rakesh and in the meanwhile, SI Randhir Singh also reached there and the SIM card was seized vide seizure memo Ex.PW7/E and thereafter all the accused present in court led them to the place of incident where they committed the offence of robbery on the previous night and pointed out the said place vide pointing out memo Ex.PW7/F. He further deposed that prior to that TSR SC No.268/10 Page 10/36 No.3218 was also taken into possession vide memo Ex.PW7/G and all the accused were arrested vide memos Ex.PW7/H to Ex.PW7/N and the disclosure statements of accused Rajender and Naresh are Ex.PW7/O and Ex.PW7/P. He further testified that at the PS said Rakesh met them there, who, on seeing all the three accused, identified them as the same persons who robbed him on the previous night and the memo regarding identification of the accused by Rakesh is already Ex.PW1/B and said Rakesh produced one cash memo with regard to purchase of mobile phone which is Ex.PW3/A and same was taken into possession vide memo Ex.PW1/A and he identified the dagger as Ex.P2 and mobile phone as already Ex.P1. He further identified the TSR from the documents as Ex.T1 to T6.

14. It is noteworthy here that the TSR was on superdari with Ms. Babita, wife of accused Naresh who was summoned to appear to produce the TSR No.DL1RD­3218, whose old number as DER­569. On 15.04.2011, she sought an exemption from appearance and case was adjourned for 18.04.2011 and on 29.04.2011, the said superdar Smt. Babita appeared who could not produced the TSR in terms of her superdaginama dated 30.05.2007, which was in the amount of Rs.30,000/­ to be paid in case of violation of the conditions of the said bond passed by the concerned Magistrate on 30.05.2007 and the superdar deposited Rs.30,000/­ with this court as a result of the violation in not producing the said TSR before the court. Said Smt. SC No.268/10 Page 11/36 Babita further failed to disclose as to whom she had disposed off the said TSR. The IO, the then SHO and MHC(M) were summoned with a direction to produce the photographs of the TSR, if kept, and the chassis number and the engine number of the said TSR, who disclosed that there was no photograph as per direction of the superdaginama given by the said superdar and thereafter, at the request of Ld. Addl. PP, the TSR was directed to be proved by way of secondary evidence and SHO was directed to approach the concerned Transport Authority to know regarding the documents of the said TSR, who filed some computer reports from the transport department, as per which the said TSR had been destroyed and in its place, a new TSR has been registered and again, the details of the destruction of the said TSR were summoned from the concerned officials of the said transport department from where one UDC appeared on 26.08.2011 before this court, who produced the destruction record whereby the said TSR was destroyed on 28.02.2009, at the request of the then owner namely Rajender Kapoor and he produced the concerned document as Ex.T1 to T6 and which were ordered to be read in evidence and the identity of the said TSR shall be deemed to have been established by the said documents and it was by way of these documents that PW7 identified the TSR.

15. In his cross examination on behalf of the accused, PW7 SC No.268/10 Page 12/36 replied that colour of the TSR was green and yellow and that the mobile phone was lying in the pocket in closed condition but it was not wrapped in any envelope or polythene and that the SIM was of IDEA company and that the SIM was recovered at about 8.30 or 8.45 p.m but again said that it was recovered after 9.30 p.m. He further answered that no public person was present at the time when the SIM card was recovered but at the time of recovery of mobile phone and dagger, 4/5 public persons were present there who refused to join the investigation.

16. PW9 ASI Ramesh Chand deposed in his examination in chief on the same lines on which PW7 has deposed and he identified the said case property and he was not cross examined despite opportunity given which was declared as "Nil".

17. With this evidence on record, it has been contended on behalf of the accused that neither PW1, the complainant Rakesh, nor PW7 Ct. Manoj uttered anything against accused Naresh, the driver of the TSR and that there is a delay of 36 hours in recording the FIR and a reverse procedure has been adopted that accused were apprehended first and recovery of the mobile phone and SIM card was effected and thereafter the complainant was called and FIR was registered. It was further submitted that there is no identity of TSR on the record nor the concerned TSR was ever produced in the court for its SC No.268/10 Page 13/36 inspection. It is further contended that there is no independent public person either at the time of initial recovery effected and arrest of the accused nor subsequently.

18. On the other hand, Ld. Addl. PP has submitted that it is a foolproof case and the complainant is a stranger to the accused having no reason to implicate them in the present case and that even the deposition of the IO has remained unrebutted on the record as he was not cross examined and that recovery of SIM card is a technical scientific piece of evidence which connected the said mobile phone recovered from the accused with the owner of the mobile phone and which could not have been planted as such and non joining of the public witnesses is not the essential requirement of the law because now­a­days none from the public dares to come forward to help in such matters and that accused had pointed out the place where they have committed the robbery which was not earlier in the knowledge of the police and the conduct of the accused Naresh, who was the driver of the tempo, in pointing out the place where the robbery was committed coupled with the conduct of the wife of accused Naresh in disposing off the said TSR, which was a piece of evidence, and not producing the same before the court of law being the superdar of the same, the inference goes against not only against accused Naresh but also against other two accused.

SC No.268/10 Page 14/36

19. The objection of the Ld. Defence Counsel that there was a delay in the registration of FIR of 36 hours, is fallacious in view of the fact that when the accused were apprehended and the dagger and one mobile phone handset without SIM was recovered by the police party, they were checking the vehicles during the anti snatching drive and it was 5.10 p.m on 29.03.2007 and the case was registered u/s 411 IPC only, as per the complaint Ex.PW9/A and the FIR Ex.PW5/A was registered at 6.40 p.m on 29.03.2007 and the distance between the place of occurrence and the PS was one kilometer and the said complaint Ex.PW9/A was sent at 6.30 p.m and as such, the FIR was recorded at 6.40 p.m immediately after the apprehension of the accused and recovery of mobile handset and a dagger from the possession of the accused and there was no delay. It was during the investigation of this case that the statement of PW1 Rakesh was recorded, who disclosed that incident of his robbing at the point of a dagger was dated 28.03.2007 at about 11 pm or 12 mid night and as he had received injuries, he went to his house and it was odd hours in the night, he did not lodge any complaint to the police and he narrated the incident to his wife Prabha Devi. In the said circumstances, the said contention that there was a delay in the registration of FIR is not at all maintainable and is hereby rejected.

20. The contention that accused were apprehended first and then the complainant was called in a reverse direction, is again fantastic SC No.268/10 Page 15/36 and does not hold much water because there was nothing wrong in apprehending the accused during the checking of vehicles in an anti snatching drive because two accused, who were pillion riders in the TSR, started escaping looking at the police party, which created a doubt in the mind of police officials and they apprehended and searched them and from their respective possession a mobile handset without SIM card and a dagger was recovered, which further created doubt against their conduct as the accused Vijay, from whose possession the said mobile phone without SIM card, Ex.P1, was recovered, could not give any satisfactory answer with regard to its possession, which further gave a cause of action to the IO of the case to get the FIR registered and thereafter the accused disclosed that the said mobile along with Rs.250/­ were robbed by them on the previous night from a person and it is in this context the SIM of the mobile phone was got recovered at the instance of accused Vijay from near an electric pole by the side of his house and the SIM card was inserted in the said mobile and it was made operational and a missed call from his mobile phone was given to know the number of the said mobile phone, which came to be 9911249965 and when the last dialed number from the said mobile phone was dialed, then one Inderjeet responded, who informed that his son in law namely Rakesh, PW1, who was robbed by three persons on the previous night and his said mobile along with cash amount was snatched from SC No.268/10 Page 16/36 him by them and it is in this background that the case was unearthed. Hence, there is nothing strange or out of way in the said investigation conducted by the IO in the said manner and the very nature of the SIM card is such which cannot be planted as any other general item, such as, a weapon of offence or the currency notes and it is admittedly not the case of both the parties before me that any clone of the said SIM card was prepared by the IO or by the PW1, in order to falsely implicate the accused in the present case. Hence, the said contention is also not tenable under the law.

21. The further contention on behalf of the accused is with regard to the TSR not produced as a piece of evidence and no identity was fixed of the said auto rickshaw from the victim PW1, who could not even give the registration number of the TSR. In this regard, the Ld. Addl. PP has rightly argued that deposition of PW9, the IO, and that of Ct. Manoj Kumar, PW7, has remained unrebutted on the record with regard to identity of the said TSR whose registration number was deposed by them as DL1RD­3218 which was seized vide seizure memo Ex.PW7/G and admittedly, it was in the name of the wife of accused Naresh Kumar namely Smt. Babita, who was admittedly the superdar of the said TSR and who executed the superdaginama dated 30.05.2007 in the name of concerned court of MM with an undertaking to produce the same before the court at the time of evidence. The said Smt. Babita, wife of accused Naresh, not SC No.268/10 Page 17/36 only failed to produce the said TSR before the court, but remained silent, as mentioned in my order dated 29.04.2011, and in this background the said TSR was allowed to be proved by way of secondary evidence vide my order dated 20.05.2011 and in this process, it transpired that old number of the said TSR was DER­569 and Sh. Ram Kishan, UDC of the Transport Department appeared and produced the record with regard to destruction of the said TSR on 28.02.2009 at the request of the then owner namely Rajender Kapoor and the said documents were exhibited as Ex.T1 to Ex.T6 and it was ordered that identity of the said TSR is deemed to have been established by all the witnesses who are concerned with the said TSR by the said exhibited documents vide my order dated 26.08.2011. The natural inference is that it was the superdar Smt. Babita, being the wife of accused Naresh, who was interested in destroying the TSR as a piece of evidence in the case and her said conduct on behalf of all the accused as a circumstantial piece of evidence must be read against all the accused and the TSR has been rightly proved by way of secondary evidence.

22. The next contention that the recovery of the SIM card was from an open place and at the time of apprehension of the accused on 29.03.2007 and recovery of dagger from the possession of accused Rajender, no public witness was joined, does not carry much weight in view of the fact that in such cases generally, the SC No.268/10 Page 18/36 general public is reluctant to help the investigation apprehending some mishappening or untoward incidents with them either at the hands of the police or at the hands of the accused in the said cases and that is in hard reality is the practical reason that nobody wants to poke his nose into other's affairs particularly in metropolitan cities like Delhi. I am fortified in my said view by the judgment of the Hon'ble Supreme Court titled Appabhai and Anr. vs State of Gujarat reported as AIR 1988 SC 696 wherein, in para 10 and 11, it was held as under:

"In the light of these principles, we may now consider the first contention urged by the learned Counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with SC No.268/10 Page 19/36 due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap and Ors. v. State of Haryana 1988 (3) S.C.C. 327 O. Chinnappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed; (at p. 330).
Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter­attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
These may be some of the reactions. There may be still more. Even a man of prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those respects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."

23. Moreover, I have already discussed that it was the recovery of the SIM card which was a technological and scientific thing and was unique in its nature which could not have been planted in order to SC No.268/10 Page 20/36 falsely implicate the accused as alleged on behalf of the accused, and in said circumstances, non joining of a public witness at the time of its recovery is not worth considering and does not help the accused at all.

24. The weakest point in the case of the victim PW1 is the identity of the accused by him as admittedly the accused were not put to the TIP. This argument was not raised by the Ld. Defence Counsel at all but still, as a court of law, I am bound to appreciate the deposition of PW1 independent of the contentions raised by both the parties. The law with regard to identity of any person or a thing and the evidentiary value of the Test Identification Parade has been laid down by the Hon'ble Supreme Court in a series of judgments.

25. Identity of the accused or a thing under the law is a relative term and not an absolute term. Establishing the identity of a person or a thing may range from eye witness account, sense of perceiving the objects, up to the scientific and technological identities established through comparison of finger prints, DNA test etc. It may also include the scent identification of a sniffer dog. All the said aspects of identity are having their own limitations. It is the evidentiary value of the circumstances wherein the identity of a person or thing has been established on record, which is material consideration for relying upon the identity of the accused or a thing. SC No.268/10 Page 21/36 Some of the examples may be cited of the decisions of the Hon'ble Supreme Court highlighting the said proposition of law as under.

33. Hon'ble Supreme Court in the case titled Malkhansingh and others Vs. State of Madhya Pradesh reported as 2003 CRI. L.J. 3535 while dealing with the aspect of identity of the accused and evidentiary value of the TIP in a rape case has held as follows:

"The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by S. 162 of Cr.PC. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
The substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case the Courts below have concurrently found the evidence of the prosecutrix, a victim of gang rape to be reliable and, therefore, there was no need for the corroboration SC No.268/10 Page 22/36 of her evidence in Court as she was found to be implicity reliable. There is no error in the reasoning of the Courts below. The facts of the case shows that the prosecutrix did not even know the appellants accused and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992 and she deposed in Court on August 27, 1992. The prosecutrix is a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances concurrent finding by Courts that the identification of the appellants by the prosecutrix in Court does not require further corroboration cannot be interfered with."

26. In another case titled Shivraj Bapuray Jadhav and others Vs. State of Karnataka reported as 2003 Crl. Law Journal 3542, the Hon'ble Supreme Court rejected the plea that eye witnesses could not have seen the occurrence because incident had taken place at night two days prior to new moon day and held that when parties are used to live in midst of nature and accustomed to live without light, the witnesses could have identified the accused easily not only from the voices but from the fact that they are known persons and close relatives and living in the neighbouring huts and the incident occurred very near to the huts of deceased and the accused and the SC No.268/10 Page 23/36 presence of the eye witnesses at that time was normal and nothing strange.

27. The said examples of the decisions of the Hon'ble Supreme Court go to establish that it is the presence of the witness at the time of occurrence, his relationship and position qua the accused, time taken by the witness in observing the facts at the time of occurrence, which are important for the identity of the accused and of course, light as a medium of perceiving the things is required but it is not always necessary that identity can only be established with the help of light only.

28. There was no motive with PW1 Rakesh to implicate the accused for a meager amount of Rs.250/­ and only for a mobile phone. He deposed that at about 11 p.m, when the said TSR reached near Aggarwal Sweet Shop, at Balaji Chowk, about half kilometer away from his house, the TSR was stopped by the driver at the instance of one of the two boys, who gave him (the witness) beatings, and the driver and the said two boys, who were sitting in the TSR, are present in the court as accused and it was observed by the court that he (the witness) has correctly identified the accused persons. PW1 further deposed that accused Rajender showed him knife and put it on his chest and snatched his mobile phone and Rs.250/­ cash and accused Vijay and Rajender forcibly snatched his SC No.268/10 Page 24/36 above said belongings by pointing out knife and giving him beatings and thereafter the accused persons went in TSR after robbing him.

29. The said acts of the accused in robbing the PW1, must have taken a considerable time wherein there was sufficient time for PW1 to see and watch the features of the accused and the act of pointing out the knife at his chest and forcible snatching of the mobile and the money from him by the persons, must have been imprinted in his mind and as such, even if the accused were not put to TIP, the deposition and identification of the accused for the first time before the court by PW1 cannot be discarded on this account alone.

30. The deposition of PW1 is otherwise fully corroborated by the deposition of PW2 Smt. Prabha Devi, to whom he narrated the incident immediately being his wife at the said odd hours of the night. PW2 is an illiterate lady and was a rustic villager, who, in her natural flow of deposition, could not tell about the date of incident but deposed that about three years ago, her husband Rakesh Singh, reached at the house at 12 mid night and was frightened and he told her regarding taking a TSR at Uttam Nagar terminal to come to his house and two passengers were already sitting in the said TSR and that her husband further told her that on the way, three accused persons had robbed his phone and a sum of Rs.200/­ or Rs.250/­ with the help of knife and her husband also told her that the culprits SC No.268/10 Page 25/36 had also given one fist blow to her husband and that she did not know anything else about this case. Her testimony could not be assailed by way of cross examination in any manner whatsoever.

31. The testimony of PW1 that he was the owner of the said mobile phone Ex.P1, was proved by PW3 also, who was a dealer in the mobile phones in the name and style of M/s Arora Telecoms at shop No.34, Old Rajender Nagar, New Delhi and he produced the copy of the bill Ex.PW3/A.

32. The deposition of PW1, the victim, is further corroborated by his father in law, PW4 Sh. Inderjeet Singh, who deposed that on 29.03.2007 at about 8 p.m, he received a phone call from PS inquiring him as to whom phone number 9911249965 belonged, to which he disclosed that PW1, his son in law, was the owner of the mobile and he was asked to reach the PS along with PW1. His testimony could not be disturbed at all by way of cross examination on behalf of the accused.

33. The testimony of PW1 further becomes evident by his MLC Ex.PW6/A on record which mentions that he suffered injury below his left eye and it was not suggested to the doctor PW6 that it was a self inflicted injury by PW1, although I am conscious of the fact that concerned doctor has not appeared in the witness box to prove the said MLC technically.

SC No.268/10 Page 26/36

34. Finally, the testimony not only of PW1, but of PW4 Inderjeet Singh, were corroborated by the PW7 Ct. Manoj Kumar and the IO PW9 ASI Ramesh Chand, who were associated with the investigation of the case and whose testimonies have been reproduced above.

35. From the said evidence on the record, nothing came on the surface imputing the motive to PW1 to falsely implicate the accused persons in the case and the alleged defence of DW1 Prit Pal Singh with regard to accused Rajender Singh and DW2 Sh. Vijay Kumar with regard to accused Vijay, which is based on plea of alibi that at the time and date of incident both the said accused were with the said two DWs respectively, has not only been demolished by their cross examination on behalf of Ld. Addl. PP, as reproduced above, but under the law also the plea of alibi is a double edged weapon meaning thereby that if the person alleging the said defence failed to establish the same with certainty and high probability, the said defence may go against him.

36. In the last, it has been argued on behalf of the accused that there is no deposition or evidence of any of the witness against accused Naresh, who was the driver of the said TSR. In this regard, PW1 not only has identified him as the driver of the TSR in his deposition before the court, but he deposed that accused persons SC No.268/10 Page 27/36 went in the said TSR after robbing him. If accused Naresh was not at all guilty in his mind, he failed to explain as to why he did not help a victim like PW1 who was admittedly his passenger and if he would have done so, then the fight would have been two against two i.e., accused Naresh as driver and PW1 as victim on one hand and accused Vijay and accused Rajender Singh on the other hand as the culprits. He did not do so. He took the said robbers i.e. accused Vijay and Rajender Singh, along with him in the said TSR. It is not a suggestion on his behalf to the witnesses that even he himself was threatened by accused Vijay and accused Rajender to take them in the said TSR so as to justify his conduct in not stopping and helping the PW1 as the victim of the incident. Even after leaving accused Vijay and Rajender, if I take them also as passengers at all, he did not go to report the matter to the police that the said incident had happened in his TSR nor he became a witness in the present case with the police if he was thinking that he was innocent. Further, he was the person with the other two accused who, on 29.03.2007, disclosed to the police the place of incident near Aggarwal Sweet shop, Balaji Chowk, Uttam Nagar, where they robbed a passenger at about 11 p.m in the said TSR at the point of knife on 28.03.2007 and admittedly the said place of incident was not in the knowledge of the police by that time till it was disclosed by the accused and as such, the pointing out memo Ex.PW7/F is not hit by Section 24 & 25 of SC No.268/10 Page 28/36 the Evidence Act and is admissible u/s 27 of the said Act, as the same was related distinctly to the fact of the said place of occurrence discovered thereby. Section 32 & 33 of the Indian Penal Code declare that "words which refer to acts done extend also to illegal omissions" and the said conduct of the accused Naresh in remaining silent is nothing but his illegal omissions whereby not only he helped the other accused, but himself was a participant in the crime with "common intention". I have already drawn negative inference against all the accused while giving my opinion on the act of getting the said TSR destroyed by the superdar Smt. Babita, who was admittedly the wife of accused Naresh. In these circumstances, I am of the considered opinion that but for the help of accused Naresh extended in the said manner, the other two accused would not have become successful in robbing the victim, the PW1, who was working in his capacity as a labour for cooking in the marriages.

37. In view of my said discussion, I am of the considered opinion that prosecution has been successful in bringing home the guilt of the accused persons beyond reasonable doubt and accordingly, all the three accused are held guilty and convicted for the offence u/s 392/34 IPC & accused Rajender Singh @ Monu is held liable to be punished with the minimum mandatory punishment for the said robbery as provided u/s 397 IPC because the same is not a charging section and provides only enhanced and minimum mandatory SC No.268/10 Page 29/36 punishment and is individualistic in nature, as it cannot be applied to others with the help of any provision of joint liability such as Section 34 or 149 of the IPC. The accused Vijay is further held guilty u/s 411 IPC for dishonestly retaining the stolen property i.e. the mobile handset and the SIM card belonging to the victim PW1, having reasons to believe the same to be a stolen property. (Announced in the open court on 18.05.2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.268/10 Page 30/36 IN THE COURT OF SH. RAKESH TEWARI ASJ­VI(OUTER), ROHINI COURTS, DELHI SC NO.268/10 FIR NO. 266/07 U/S 392/397/411/34 IPC PS Uttam Nagar Unique Case ID No. : 02404R0009702008 State Vs.

1. Rajender Singh @ Monu s/o Jogender Singh r/o H.No. A­62, Shiva Enclave, Uttam Nagar, N.Delhi.

2. Naresh s/o Dhanpat r/o R­22, Vikas Nagar, Uttam Nagar, N.Delhi.

3. Vijay s/o Vishambar Dayal r/o H.No. B­49, J.J. Colony, Shiv Vihar, Uttam Nagar, N.Delhi.

ORDER ON SENTENCE:

Present : Ld. Addl. PP for the State.
Sh. A.K. Chawla, Adv. on behalf of the convict.
1. Heard on the point of sentence. It has been submitted on behalf of convict Naresh that he is not previously involved in any case and he is aged about 34 years and is married and his eldest son is mentally retarded besides another son and he has two SC No.268/10 Page 31/36 daughters and he is the only earning member in the family as he has lost his parents.
2. It has been submitted on behalf of convict Vijay that he is 25 years of age and he is not previously involved in any case and recovery from his is of a small amount of Rs.250/­ and old mobile phone and he is married and is having one child.
3. It has been submitted on behalf of convict Rajinder that he is 25 years of age and is not previously involved and is a married person and having a child of three months old.
4. It has been submitted that in the said circumstances, considering the youth of the convicts and the family life a lenient view may be taken.
5. On the other hand, Ld. APP has submitted that a deterrent effect should be given to the punishment so that no person can dare to do such kind of robberies on the streets.
6. First duty of the court is to know as to whether the convicts are entitled to the grant of probation U/S 360 Cr. PC. This case involves a moral turpitude and its a case of robbing a poor person and that too in a public transport. The manner in which the offence was executed further takes out the case of the convicts out of the provisions of Section 360 Cr. PC. This is nothing but enrichment of SC No.268/10 Page 32/36 the convicts by the money earned by shortcut methods wherein they did not care for any regard to the Law and Order. In the circumstances, I am not inclined to grant them the benefit of probation.
7. This court can take judicial cognizance of the fact that during 1950s, 1960s and 1970s, almost all the police stations of Delhi were having the theft and robbery cases of the cycles but now hardly any case in Delhi can be found with regard to theft of cycles, although thousands of people in Delhi are still using the cycles as a means of transport for going to their place of work and thousands of them still may not be in a position to purchase a new cycle which may be worth ten to twelve thousands rupees at present in the market but the said cases faded out as no police official is now ready to register a FIR for such petty thefts or robbery of the cycles. Even how to establish the identity of a cycle is not known to investigation officers at present nor the companies are giving a specific number of the frame of the cycle.
8. Similarly, now a days the mobile phones have become too general and in possession of all that no police official nor the public persons are ready and willing to report the matter regarding the theft of the mobile phones and it has become a fashion of the day that mobile phones are being snatched from the poor persons SC No.268/10 Page 33/36 women and children in the streets by the persons such like that of the convicts present in the court and said victims are looking helplessly but for exceptions as reported in today's newspapers that a lady and a boy dared to nab the culprits who were running away after snatching their mobile and purse in different incidents.

An amount of Rs.250/­ and a old mobile phone may not be worth considering by a person belonging to the affluent strata of the society but it may carry value for a poor person who was working for preparing meals in the marriage parties such like one who is victim of the present case. Merely, an amount was meager is no ground to give a license to the present convicts to take the law in to their own hands and causing unlawful loss to other persons.

9. God knows, considering the enormous increase in the number of motor cars on the roads of Delhi, tomorrow there may not be a FIR registered for the theft or robbery of the same. This case is to be seen in the said circumstances and historical development.

10. This was by a sheer chance that this case was unearthed when the police was on checking duty and a mobile phone hand set was recovered without its SIM card which further created a doubt in the mind of the concerned police official. Admittedly, the convicts were apprehended on the following day and that too with a dagger and the said mobile phone in their possession, from which a natural SC No.268/10 Page 34/36 inference can be drawn that the convicts were involved in such kind of offences on a routine basis, as if robbing the persons in a public transport i.e. TSR was their profession for earning their livelihood. Moreover, the convicts had no repentance because even during the trial they were instrumental in connivance with Smt. Babita wife of convict Naresh, in getting the TSR, used in the commission of the offence, destroyed through proper channel by the transport authority so as to make the non availability of a piece of evidence of the present case.

11. In the said circumstances, all the convicts do not deserve any leniency and if at all any leniency is shown, a wrong message will go to the society that even after a person having no enmity or otherwise interest against the convicts, identifying them as the culprit of the offence, may be set free even after committing such dastardly act of robbing a poor person at the point of knife. I have already held that convict Naresh being the driver of the public transport i.e. the TSR, failed to discharge his special duty as such driver who would have helped the victim but he joined hands with other two convicts in robbing the victim.

12. In the circumstances, convict Naresh and Vijay are sentenced to undergo RI for a period of five years with a fine of Rs.10,000/­ each for the offence U/S392/34 IPC and in default of fine they are further SC No.268/10 Page 35/36 directed to undergo SI for a period of six months.

13. The convict Vijay is further sentenced to undergo RI for a period of two years for the offence U/S 411 IPC.

14. Convict Rajinder is to be punished with the minimum mandatory punishment and he is directed to undergo RI for a period of seven years with a fine of Rs. 10,000/­ for the offences U/S 392/397 IPC and in default of fine, he is further directed to undergo SI for a period six months.

15. All the said sentences shall run concurrently with a benefit of Section 428 Cr. PC if any, to all the convicts.

16. Let, the conviction warrants be prepared accordingly. Copy of this order and the conviction order dated 18.05.2012 be given free of cost to the convicts forthwith.

17. The file be consigned to Record Room.

(Announced in the open court on th 25 May, 2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.268/10 Page 36/36