Delhi District Court
State vs . Shiva @ Gujjar Etc. Fir 282/2009 ... on 7 June, 2019
State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016)
IN THE COURT OF AJAY GULATI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF :
Case No. 57659/2016
FIR No. 282/2009
PS Nihal Vihar
U/s 392/397/394/411/34 IPC
STATE
VERSUS
1.SHIVA @ GUJJAR @ MAHARAJ, Son of Shri Bhoop Singh, Resident of :
(i) P112, Budh Bazar Road, Mohan Garden, Uttam Nagar, New Delhi.
(ii) Village Gagol, PS Partapur, Meerut.
2. HONEY SHARMA, Son of Shri Anil Kumar Sharma Resident of :
(i) Plot No.5, Sector2, Gali No.2, Mohan Garden, Gandhi Chowk, Uttam Nagar, , New Delhi.
(ii) A2/97, Mohan Garden, New Delhi59.Result: Convicted Page 1 of 43
State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Date of Institution : 17.01.2011 Date of Reserving Judgment : 06.06.2019 Date of Judgment : 06.06.2019 Judgment:
1. Accused Shiva @ Gujjar and Honey Sharma were sent up by the Investigating Officer of FIR No. 282/2009 registered at PS Nihal Vihar to face trial under sections 392/394/397 read with section 34 of the IPC. Accused Shiva @ Gujjar was also chargesheeted u/s 411 IPC.
2. Briefly put, the case set up by the prosecution is that on 20.11.2009, at about 7.15 PM, when the complainant Jitender Verma was going to his office on motorcycle bearing number DL 9S W0439 make Hero Honda CD Deluxe, 4 persons on a black Pulsar motorcycle waylaid him on the road in front of cremation ground Syed Nangloi and tried to rob him. On resistance being shown by the complainant, he was assaulted with a baseball bat bearing the sticker 'Cricket ke Kings' and a 'danda', firstly on his head and then on his hand. As a Result: Convicted Page 2 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) result of the assault on his head, the helmet which he was wearing broke. Subsequent assault with baseball bat was tried to be fended off by the complainant by raising his left hand which resulted in fracture of 'left ulna'. Complainant also received injury on the right knee. 2 of the assailants then picked up the broken helmet of the complainant and alongwith the motorcycle of the complainant, ran away towards the nearby DDA Park. Police Control Room was called up by the complainant and thereafter, complainant was first brought to the police station and then shifted to SGM hospital. The investigation commenced after obtaining the MLC of the complainant.
All the 4 assailants were subsequently arrested on 9.12.2009 when the police had put up a barricade to prevent snatching activities. They were coming towards the barricade on a motorcycle which was driven by accused Honey Sharma (which motorcycle was owned by father of Honey Sharma) and were apprehended after a brief chase when they tried to turn back on seeing the barricade.
Coincidentally, complainant was returning home from the same spot after getting treatment from the hospital and happened to stop at the barricade at the time of arrest of the suspects. He then identified all four of them. 2 of the arrested persons were found to be juvenile i.e. Result: Convicted Page 3 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Hukum Singh and Arun Singla. Recovery of broken helmet and broken baseball bat was effected from the bushes of nearby DDA Park whereas motorcycle of the complainant and a wooden stick were recovered from the house cum dairy of accused Shiva, on his disclosure. Nothing was recovered at the instance of accused Honey Sharma but the motorcycle on which they were riding at the time of arrest, was the same motorcycle which was (allegedly) used in the commission of crime. This motorcycle was seized.
Additional facts as emerging from the Chargesheet are -
On receipt of DD No. 31A on 20.11.2009, ASI Inderpal along with HC Naresh Kumar reached the occurrence spot i.e. opposite the Cremation Ground, Syed Nangloi Road where he came to know that one person had been removed to the hospital by the PCR van. The ASI along with HC Naresh reached PS Nihal Vihar and came to know that Const. Kuldeep had taken one person to Sanjay Gandhi Hospital. The ASI along with the Head Constable Naresh reached Sanjay Gandhi Hospital where he found complainant Jitender Result: Convicted Page 4 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Kumar Verma admitted. His statement was recorded to the effect that at about 7.15 PM, when he was passing through the road in front of Cremation Ground, Syed Nangloi, four young persons riding on a motorcycle came there and stopped him. Out of those four persons, two persons having 'dandas' in their hands alighted from the motorcycle and started giving him beatings with the said dandas as a result of which his motorcycle fell on the road and he sustained injuries on his left hand and right knee. Consequent thereto, said two persons ran away from there while taking away his motorcycle bearing registration No.DL 9S W0439 make Hero Honda CD Deluxe (Maroon in colour). Complainant Jitender Kumar informed the ASI that he had called up the control room. The PCR van came there and took him first to PS Nihar Vihar from where he was shifted to Sanjay Gandhi Hospital by Const. Kuldeep.
The ASI made his endorsement on the statement of complainant Jitender Kumar and sent the rukka through HC Naresh Kumar for registration of the case for the offence punishable under Section 392/34 IPC whereafter further investigation of the case was assigned to ASI Inderpal. During investigation, the ASI/Investigating Officer (IO) inspected the crime scene, prepared the site plan and Result: Convicted Page 5 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) recorded the statements of the witnesses. The IO searched for the accused persons as well as the motorcycle of the complainant. Information regarding the robbed motorcycle was sent to the National Crime Bureau. On 9.12.2009, the Investigating Officer (IO) along with staff consisting of HC Vijender, Const. Ranvir and Const. Suresh set up a barricade on the road in front of Cremation Ground, Syed Nangloi on 9.12.2009 in search of the motorcycle of the complainant as well as the culprits of the present case. While checking the vehicles, the IO found four persons travelling on one motorcycle bearing registration No. DL 4S ND5894 coming from the side of Chander Vihar, who on seeing the police party, took a Uturn. On suspicion, the IO along with his staff apprehended all of them. Meanwhile, complainant Jitender Kumar also came there and on seeing the apprehended persons, informed the IO that they were the same persons who had given him beatings on 20.11.2009 and had taken away his motorcycle.
The Investigating Officer (IO) interrogated all the four persons who disclosed their names as Honey Sharma, Shiva @ Gujjar @ Maharaj, Arun Singla and Hukam Singh. Arun Singla and Hukam Singh were found to be juveniles. The complainant informed the IO Result: Convicted Page 6 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) that accused Honey Sharma was driving motorcycle bearing registration No. DL 4S ND5894 on the day of incident and had forced him to stop his motorcycle whereas Arun Singla and Hukam Singh who were having 'dandas' in their hands, inflicted blows on his head as a result of which his helmet broke. Complainant further informed that Arun Singla had driven away his motorcycle. The Investigating Officer recorded the disclosure statements of the accused persons and seized the motorcycle bearing registration No. DL 4S ND 5894 which accused Honey Sharma was driving. Juvenile Hukam Singh got recovered the broken helmet of the complainant after taking it out from the bushes of nearby DDA park whereas juvenile Arun Singla got recovered the broken baseball bat from the bushes of DDA park, both of which were seized. It was further disclosed by the accused persons that the other 'danda' and the motorcycle of the complainant were kept in the house of accused Shiva @ Gujjar which were then subsequently recovered from his house. The Investigating Officer prepared the pointing out memo at the instance of the accused persons. Accused Shiva @ Gujjar and Honey Sharma were formally arrested by the IO. Since the doctor opined the nature of injury on the person of complainant Jitender as grievous, Section 397 IPC was also Result: Convicted Page 7 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) added whereafter, on completion of the investigation, challan against the accused persons i.e. Shiva @ Gujjar @ Maharaj and Honey Sharma under Section 392/394/397/411/34 IPC was filed in the court of concerned Metropolitan Magistrate. Inquiry reports in respect of the juveniles Hukam Singh and Arun Singla, were presented before the ld. Principal Magistrate, JJ Board, Kingway Camp, Delhi. Thereafter, the case was committed to the Court of Sessions Charges -
3. On 3.3.2011, Charge for the offences punishable U/s 392/34, 394/34 read with Section 397 IPC were framed against accused Shiva @ Gujjar @ Maharaj to which he pleaded 'not guilty' and claimed trial. Vide order of the same date, accused Shiva @ Gujjar @ Maharaj was also charged for the offence punishable under Section 411 IPC.
Accused Honey Sharma had been declared a proclaimed offender. On his subsequent arrest, vide order dated 24.11.2011, he was also charged for the offences punishable U/s 392/34, 394/34 read with Section 397 IPC.
Result: Convicted Page 8 of 43State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016)
4. Before proceeding to discuss the evidence led, it needs a highlight that chief examination of prosecution witnesses was recorded 3 times. Initially, evidence was recorded qua accused Shiva only since accused Honey Sharma had been declared a proclaimed offender. After his arrest, Charge was framed against him also. By that time, 09 prosecution witnesses had been examined. Prosecution witnesses were then examinedinchief again in terms of order dated 24.11.2011 passed by the ld. Predecessor which led to witnesses being again cross examined. However, vide order dated 18.4.2016, ld. Predecessor further held that the reexamination of PW's after commencement of trial of accused Honey Sharma was not proper since the prosecution witnesses had merely adopted their previously recorded chief examination instead of getting the respective statements recorded again. Consequently, prosecution witnesses were again examined in chief.
Evidence:
5. In order to prove the Charge against the accused persons Result: Convicted Page 9 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) beyond all reasonable doubt, prosecution examined 12 witnesses. Role of the witnesses who were examined and the purpose for which they were summoned is briefly mentioned below -
PW 1 Complainant and injured Jitender Kumar Verma; deposed about the alleged crime being the victim.
PW 2 Dr. Brijesh Singh, examined the complainant in SGM Hospital PW 3 HC Naresh, part of investigation with Investigation Officer till registration of FIR PW 4 Const. Kuldeep, took injured/complainant to hospital for his medical examination.
PW 5 HC Baney Singh, duty officer who registered the FIR.
PW 6 Dr. A. Bhasin, Radiologist who examined xray plates of complainant.
PW 7 HC Rakesh Kumar, MHC(M). Deposed regarding case property PW 8 Anil Kumar, owner of motorcycle bearing No. DL 4S ND5894, who was also father of accused Honey Sharma. This motorcycle was allegedly used in the commission of crime. Witness deposed regarding use of his motorcycle by his son accused Honey Sharma Result: Convicted Page 10 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) PW 9 HC Vijender Singh, part of investigation, and arrest of accused persons.
PW 10 Const. Ranvir Singh, also part of investigation and arrest
of accused persons
PW 11 Dr. Manoj Dhingra, opined about the nature of injury as
grievous on the MLC of complainant
PW 12 Investigating Officer ASI Inder Pal
6. PW1, complainant Jitender Kumar Verma in his chief examination, reiterated the entire sequence of facts as narrated by him in his initial statement given to the police (Ex.PW1/A) and thus supported the prosecution case in all material aspects. He deposed that the site plan (Ex.PW1/B) was prepared by the police and also deposed about preparation of pointing out memo Ex.PW1/E. The witness identified the motorcycle bearing registration No. DL 4S ND5894 of accused Honey Sharma in the photographs filed as Ex. P 2. The complainant had also identified his broken helmet (Ex.P4) as well as broken piece of baseball bat of blue colour bearing sticker "Cricket Ke Kings" (Ex. P 5), and another thin long danda of wood (Ex. P 6), Result: Convicted Page 11 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) which were used by the accused persons in assaulting him.
In cross examination conducted for the first time (on behalf of accused Shiva Gujjar), PW 1 deposed that his statement was recorded at the police station by SI Inderpal. Regarding the assault specifically, witness stated that he was first hit by juvenile Arun with a baseball bat and then with a 'danda' by Shiva. He confirmed that accused Honey was driving the motorcycle on which assailants came. He further deposed that accused were arrested at 2.45 pm on 9.12.2009. Witness denied suggestions that accused were identified in the police station and that the documents relating to arrest of the accused persons were prepared in the police station.
In cross examination on behalf of accused Honey Sharma conducted after reexamination, PW 1 deposed about the order in which the accused were sitting on the motorcycle at the time of incident. He further deposed that there were street lights at the scene of crime and there were also big lights at the gate of cremation ground. PW 1 did not remember the number of documents signed by him or the names of other person who signed the memos alongwith him at the time of arrest of accused persons. He also deposed that police had already stopped the accused at the barricade when he Result: Convicted Page 12 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) reached the spot of arrest. However, he could not say with certainty whether on the day of arrest, he was returning from work. He remained at the barricade for 30 - 40 mins.
Witness was recalled in 2017 for reexamination by the ld. Prosecutor wherein he clarified that he was returning from hospital after treatment on the day of arrest of accused and that his statement was recorded by the police in the hospital. Relevant aspect of the re examinationinchief of the complainant is that he did not specifically point towards either of the accused persons as the ones who had assaulted him with baseball bat and 'danda'. Infact, he did not even name the juveniles as the ones who had hit him but only testified to the effect that 2 of the 4 assailants had assaulted him with baseball bats and 'danda' on the date of alleged incident. Thereafter, he was again cross examined during the course of which he deposed that he had given description of the accused persons to the police. He confirmed that on the date of arrest of accused persons, he was accompanied by his friend Deepak whose signatures were not obtained on the arrest memo.
7. PW 2 Dr. Brijesh Singh Chief Medical Officer, Sanjay Result: Convicted Page 13 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Gandhi Memorial hospital deposed in his chief examination regarding medical examination of the complainant on 20.11.2009 (date of incident). Dr. Brijesh deposed that on 20.11.2009 at about 9.10 PM, he examined patient Jitender Verma who was brought by Const. Kuldeep to the hospital with alleged history of physical assault. On local examination of the patient, the doctor found swelling with tenderness over left forearm and swelling with tenderness over his right leg. He was advised medication and xray examination of the said parts. The detailed report prepared by the doctor was exhibited as Ex.PW2/A. In crossexamination, witness deposed that the injury sustained by the complainant could have been caused by any blunt object. He was recalled by the ld. Prosecutor on the aspect of injuries during the course of which witness deposed that injuries sustained by the complainant could have been due to fall on a hard surface.
8. PW 3 Head Constable Naresh Kumar deposed regarding taking 'rukka' from SGM hospital for the registration of FIR at police station. Witness deposed that rukka was handed over to the duty officer. PW3 further deposed about him accompanying the Result: Convicted Page 14 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) IO/ASI Inderpal to the crime scene i.e. in front of cremation ground, Syed Nangloi rd. on 20.11.2009 at about 7.45 PM on receiving DD No.31A from where they came to know about the injured having been taken to Sanjay Gandhi Hospital. On reaching the said Hospital, they found PW1 Jitender admitted whose statement was recorded by the IO which was handed over to him (i.e. rukka) for registration of the case.
In crossexamination, witness deposed that it took 2025 minutes in preparing the rukka at the hospital, which was handed over to him at 10.15 PM and that one hour was taken by the duty officer in recording the FIR of the present case.
9. PW 4 Const. Kuldeep was a member of the PCR Van who had brought the complainant to the hospital. Witness deposed that complainant was first brought to police station at 8.15 pm and then sent alongwith him (i.e. with PW 4) to the hospital. PW4 further deposed about recording of the statement of the injured by ASI Inderpal (who was accompanied by HC Naresh).
In crossexamination, witness stated he took the MLC of the complainant and handed over the same to Investigating Officer Result: Convicted Page 15 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) (IO) at 9.15 pm who took about 20 - 25 mins. in writing the rukka.
10. PW 5 Baney Singh was the duty officer at police station Nihal Vihar on 20.11.2009. He deposed regarding handing over of rukka to him by HC Naresh at 10.40 pm and registration of FIR under Section 392/34 IPC on 20.11.2009. The witness has proved the computerized copy of FIR as Ex.PW5/A. The witness has also deposed that while working as duty officer on 20.11.2009, he received information at about 7.45 PM vide DD No.31A Ex.PW5/C from Lady Const. Sheetal regarding robbery committed by four persons near Syed Nangloi Cremation Ground and taking away of the motorcycle bearing registration No. DL 9SW 0439 by the culprits.
PW 5 was not cross examined.
11. PW 6 Dr. A Bhasin, head of the radiology department at SGM hospital deposed regarding the injuries sustained by the complainant after reviewing the xray plates of Complainant (Ex. X1 and X2). He found a fracture in the left forearm (Ulna) of the complainant. The detailed report prepared by the doctor in this regard Result: Convicted Page 16 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) is Ex.PW6/A. In crossexamination, he deposed that there could be multiple causes for the injuries sustained by the complainant, and that the fracture could be as a result of fall on earth.
12. PW 7 Head Constable Rakesh Kumar testified regarding safe custody of the case property. PW7 deposed that on 9.12.2009, Investigating Officer ASI Inderpal deposited with him the articles recovered from personal search of accused persons i.e. Shiva @ Gujjar @ Maharaj, Honey Sharma and Arun Singla (since Juvenile), the motorcycle bearing registration No. DL 9S W - 0439 and 'danda' recovered from the house of accused Shiva @ Gujjar, another motorcycle bearing registration No. DL 4S ND 5894 of accused Honey Sharma, a broken helmet of black colour which was got recovered by Hukam Singh (Juvenile) and a broken baseball bat which was got recovered from Arun Singla (Juvenile). The witness made necessary entries (Ex.PW7/A1 to Ex.PW7/A7) in register No.19 at serial Nos.460 to 466.
The witness further stated that the motorcycle bearing registration No. DL 9S W0439 was handed over to its owner namely, Result: Convicted Page 17 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Jitender on superdari whereas the other motorcycle bearing registration No. DL 4S ND5894 was handed over on superdari to its owner Anil Kumar (father of accused Honey Sharma).
In crossexamination, witness denied the suggestion of case property having been tampered with so long as the same remained in his possession.
13. PW 8 Anil Kumar, father of accused Honey Sharma was first examinedinchief on 24.8.2011. He deposed that the whereabouts of his son were not known for the past 2 years. He confirmed that on the date of incident as also on the date of arrest, his son Honey was driving the motorcycle bearing no. DL 4S ND5894. The witness was however recalled for examination on 22.8.2012 during the course of which he changed his version and deposed that on the alleged date of arrest his son, his motorcycle bearing no. xxxx 5894 was parked at his house and his son was sleeping. He volunteered that his son was picked up from his house when he was sleeping, alongwith the motorcycle. The copies of documents pertaining to the ownership of the abovenumbered motorcycle have been proved by the witness as Ex.PW8/A1 to A3.
Result: Convicted Page 18 of 43State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016)
14. PW 9 Head Const. Vijender Singh was a witness to the arrest of the accused persons on 20.11.2009. He is a material witness to substantiate and corroborate the prosecution case since he was a witness to the arrest of the accused persons as also a witness to the recovery/seizure proceedings. PW9 deposed about arrest of accused persons and juveniles on 9.12.2009 at about 2.30 PM by the police team consisting of Investigating Officer ASI Inderpal, Const. Suresh and Const. Ranvir Singh from near the cremation ground, opposite DDA Park when they were found coming on a motorcycle bearing registration No.DL 4S ND5894 from the direction of Chander Vihar. The accused persons and juveniles were also identified by PW1/complainant Jitender. The Witness stated that personal search of accused Shiva @ Gujjar and that of accused Honey Sharma was conducted whereafter their disclosure statements (Ex.PW9/C and Ex.PW9/D) were recorded. One broken helmet (Ex. P4) was got recovered by Juvenile Hukam Singh which was seized (vide memo Ex.PW9/E) whereas other Juvenile Arun Singla got recovered a broken piece of baseball bat (Ex.P5) from the bushes in front of Shamshan Ghat which was also seized (vide memo Result: Convicted Page 19 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Ex.PW9/F). Complainant's motorcycle bearing registration No. DL 9S W0439 as well as the 'danda' used in the crime, both of which recovered from the house of accused Shiva, were taken into possession vide memo Ex.PW9/G whereas the motorcycle bearing registration No. DL 4S ND5894 (Ex.P2) of accused Honey Sharma was also seized (vide memo Ex.PW9/H). Witness identified the motorcycles, danda, broken baseball bat and the broken helmet.
In crossexamination, Witness deposed that the accused persons were apprehended at 2.30 pm; that the accused persons turned back when they saw the police barricade but were caught after a chase; that complainant came to the arresting spot on his own; that the complainant was returning from the hospital when he happened to reach the police barricade at the time of arrest of the accused; that statement of the complainant was recorded at the barricade; that complainant did not accompany the police officials for recovering the articles pursuant to the disclosure statements of accused persons; and that, however, certain articles were recovered from near the place of arrest (i.e. DDA park), in the presence of the complainant. PW 9 denied the stock suggestions regarding the arrest of the accused not having been made at the police barricade, of this witness not joining Result: Convicted Page 20 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) the investigation, and of not accompanying the investigating officer in recovery/seizure proceedings.
PW 9 was recalled for chief examination on 4.10.2018. There were certain clarifications in his reexamination conducted on 4.10.2018 which are as follows -
i) Motorcycle was being driven by accused Honey behind whom juvenile Arun was sitting, followed by juvenile Hukum and finally Shiva @ Gujjar
ii) that accused Shiva @ Gujjar disclosed that he could get recovered the robbed motorcycle from his house where he ran a dairy also i.e. at Budh Bazaar, Mohan Garden, Uttam Nagar pursuant to which this witness no. PW 9, investigating officer, Ct. Ranbir and Ct. Suresh went to the house of accused Shiva @ Gujjar. From there, motorcycle of the complainant and a wooden stick was recovered from the freezer room of the dairy.
Witness identified the accused persons in the court as also the case property.
In crossexamination on behalf accused Honey, PW 9 deposed that his statement was recorded on 9.12.2009 at 8 or 9 pm; that he left police station for anti snatching duty at 1.20 pm; and that Result: Convicted Page 21 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) interrogation of the accused started at 2.30 pm and continued till 4 pm (this also corroborates the earlier testimony of this witness that accused were arrested on 9.12.2009 at 2.30 pm).
In crossexamination on behalf of accused Shiva @ Gujjar, PW 9 deposed that they reached the house of Shiva @ Gujjar at about 5 pm or 5.15 pm; that wife of accused Shiva was present at the house but her statement was not recorded; that no photos were taken of the room from where recovery was effected; that they returned from dairy at 5.45 pm; and that the distance of the dairy from the spot of apprehension of the accused was 56 kms.
PW 9 denied suggestion regarding planting of case property on accused Shiva.
15. PW 10 Const. Ranvir Singh was also a witness to the arrest of accused. His chief testimony was similar to the testimony of PW 9. The material difference however was that PW 10 deposed that ASI Inderpal called up the complainant to come at the arrest spot. There was corroboration to the testimony of PW 9 with regard to recovery of articles pursuant to the disclosure statement of accused persons and juveniles.
Result: Convicted Page 22 of 43State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) In cross examination, witness deposed that his statement on 9.12.2009 was recorded at 5 pm on the arrest spot; that engine numbers of the seized motorcycles was mentioned on the seizure memos; and that proceedings at the arrest spot continued for 3 4 hours. PW 9 was not sure of the time when they went to the house of accused Shiva but said that it might have been at 5.30 pm. This witness stayed outside the house of accused.
16. PW 11 Dr. Manoj Dhingra deposed regarding the MLC of the complainant. Dr. Manoj stated that as Medical Officer Incharge on 14.12.2009, he had opined regarding the nature of injuries on the person of Jitender as 'grievous', after going through the contents of MLC of the patient. He made his endorsement Ex.PW11/A on the MLC to the said effect. The witness also stated that he identified the handwriting and signatures of Dr. Vikram Singh who had examined the complainant on 20.11.2009. Doctor Vikram had since left the services of S G M Hospital. As per the examination of the patient Jitender by Dr. Vikram Singh, the patient was complaining of pain and swelling over left forearm and right leg. On local examination, tenderness and swelling was found on left forearm Result: Convicted Page 23 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) and right leg. The patient was advised POP slap over left forearm and medication by the doctor. The detailed report prepared by the said doctor is Ex.PW11/B. In crossexamination, Witness stated that patient was not before him when he opined regarding the nature of injury sustained. He volunteered to state that the opinion was given on the basis of the xray plates.
17. PW 12 ASI Inderpal was the investigating officer (IO) of the FIR no. 282/2009. In his chief examination, witness deposed that on 20.11.2009, he received DD no. 31A and reached in front of cremation ground at Syed Nangloi rd. where he was informed that the injured had been shifted to hospital. Soon after, he received information that the injured had been brought to the police station but when he reached the police station, he was further informed that the injured had been taken to the hospital. IO went to the hospital and obtained the MLC of the complainant, and thereafter recorded the 'rukka' at about 10.15 pm. He further deposed that he reached the occurrence spot at 10 pm and HC Naresh reached the spot at 11.30 pm alongwith copy of the FIR. IO recorded further supplementary Result: Convicted Page 24 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) statement of complainant at 11.40 pm. The witness also corroborated the entire factual sequence stated by PW9 and PW10 (arrest and recovery witnesses) regarding arrest of the accused persons and recovery of the exhibits as well as the two motorcycles from the possession of the accused persons. PW 12 in his crossexamination, admitted the suggestion that Complainant reached the arrest spot at 3.30 pm on his own when he was returning home. Witness also deposed that about 4 hours were spent in conducting proceedings at the spot; that he reached the house of accused Shiva at 4.30 pm; that he was not aware whether family members of Shiva were present or not at the house; and admitted that the motorcycle and danda were recovered from the deep freezer room in the house of the accused.
PW 12 denied stock suggestions that accused were not arrested in the manner projected, that investigation was not conducted properly and that the recovery of seized articles was planted on the accused persons.
18. All the incriminating circumstances were put to the accused persons in their statements U/s 313 Cr.P.C wherein they expressed their ignorance about the reason for registration of the Result: Convicted Page 25 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) present case and denied the allegations against them stating that they have been falsely implicated in the present case. Accused Shiva @ Gujjar stated that he was lifted by the police from his house on the pretext of making some inquiry and was later on implicated in this case. He alleged false planting of the motorcycle Ex.P3 and danda Ex.P6 upon him by the Investigating Officer. Accused Honey Sharma admitted that the motorcycle bearing registration No.DL 4S ND5894 belonged to his father.
Accused Shiva @ Gujjar initially opted to lead evidence in his defense but later on made a separate statement before the court to the effect that he did not wish to lead any evidence in his defense. The other accused Honey Sharma opted not to lead any defense evidence.
19. Arguments on behalf of the State were addressed by ld. Addl. Public Prosecutor whereas counsel for accused Shiva@Gujjar countered the same. Counsel for accused Honey Sharma did not address arguments despite availing 3 opportunities.
Ld. Prosecutor submitted that complainant Jitender Verma who was robbed by the accused persons (alongwith juveniles Result: Convicted Page 26 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Hukum and Arun) has supported the prosecution version to the hilt. He was examinedinchief on 3 occasions i.e. initially when accused Shiva alone was sent up to face trial; thereafter when accused Honey Sharma was chargesheeted; and then 3rd time when chief examination of prosecution witnesses were again recorded under directions of the ld. predecessor. On each of the 3 occasions, PW 1 was consistent in his testimony to the effect that at around 7. 15 pm on 20.11.2009, on Syed Nangloi road, accused persons (alongwith juveniles) came on a motorcycle, stopped his motorcycle whereafter he was hit with danda and baseball bat resulting in him falling on the ground. The persons who hit him then took away his motorcycle leaving him with injuries on the left forearm and right knee. In his statement to the police on the date of incident, he specifically stated that he could identify the assailants. On 9.12.2009, the accused persons were apprehended during a police barricade check up. The complainant, who happened to be passing by on his way back home, identified the accused persons as also the juveniles who had assaulted and robbed him. In his cross examination, complainant/ PW 1 convincingly answered that he was able to see the faces of assailants since the road on which incident took place had street light as also the gate of cremation ground, in Result: Convicted Page 27 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) front of which the incident happened, had big lights installed on it.
Ld. Counsel for the accused Shiva argued that the arrest of the accused persons was not effected in the manner as has been projected by the prosecution. Infact, the accused persons were arrested from their homes and then got identified by the complainant in the police station. Further, the recovery of weapons used in the offence as also the seized motorcycle of the complainant, was planted on the accused Shiva and juvenile Hukum and Arun. This argument of the defense was based on the plea of accused in their statements recorded under section 313 Cr.P.C. Another plea was raised specifically on behalf of accused Shiva that he was falsely implicated by the Investigating Officer because the accused had refused to supply milk to him.
21. Rival submissions have been carefully considered and evidence has been examined.
22. The pleas raised by the ld. defense counsel will be taken up and dealt with individually. First defense plea is regarding accused persons actually having been arrested/picked up from their respective Result: Convicted Page 28 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) houses. The plea is without merit for the reason that if the police had actually known the whereabouts of the accused persons, they would not have waited till 9.12.2009 to round them up. The first defense plea would have been a bit realistic if the prosecution had claimed that accused persons were arrested after a secret tip off from an informer. However, arrest of accused persons was a chance occurrence, when the accused persons turned back after seeing the police barricade. In this regard, a supplementary argument raised behalf of the accused was that it is not possible for 4 persons to be travelling on a motorcycle. However, it has to be kept in mind that on the date of alleged incident also, the 4 assailants were travelling on a single motorcycle.
23. The arrest witnesses i.e. Const. Vijender and Const. Ranvir consistently deposed regarding the arrest of accused persons during a routine police checking. However, in regard to the testimony of PW 10, a singular aspect deserves a highlight. Though the prosecution version is that on 9.12.2009, complainant just happened to be passing by the site of police barricade when the accused persons were apprehended, Const. Ranvir deposed that Investigating Officer Result: Convicted Page 29 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) had called up the complainant.
24. In so far as testimony of Const. Ranvir is concerned, regarding Investigating Officer calling up the complainant after accused persons were apprehended, same is at best a minor aberration and does not affect the prosecution version which stands corroborated by the testimony of complainant himself as also the official witnesses who were part of the arresting team. Three witnesses (complainant himself, PW 9 and PW 12 Investigating Officer) have consistently deposed that Complainant reached the arrest spot while returning from the hospital. It further needs a highlight that the road on which the police barricade was put up on 9.12.2009 was the route taken by the complainant even on 20.11.2009 for going to his office. PW 12 Investigating Officer, in his cross examination, admitted the suggestion that complainant reached the arrest spot on his own at 3.30 pm. This suggestion is important because it conveys that the defense admitted the prosecution version regarding complainant reaching the arrest spot by chance and then identifying the accused. However, even assuming the worst against the prosecution that the complainant did not reach the place of arrest by chance but was called by the Result: Convicted Page 30 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Investigating Officer to the place of arrest, even then it stands proved that accused persons and juveniles were apprehended at the police barricade which was set up on Syed Nangloi rd. on 9.12.2009.
25. The medical evidence is also in sync with the ocular evidence of the complainant - injured. The testimony of PW 2 Dr. Brijesh Singh confirms the prosecution case that injuries could have been sustained by the complainant with any blunt object. The weapons of offence were a baseball bat and a wooden stick, and there is corroboration in regard to these blunt weapons in the police statement and court testimony of complainant coupled with the facts that these weapons were identified by the complainant as also by the recovery witnesses. PW 6 Dr. Bhasin who was a Radiologist deposed that there could be multiple reasons for the injuries caused including due to fall on earth. Even assuming that the fracture resulted from fall of the complainant, the prosecution version is that he was hit with wooden stick and baseball bat as a result of which he fell down from the motorcycle. Thus either ways, medical evidence corroborates the prosecution case.
Result: Convicted Page 31 of 43State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016)
26. A very important aspect of the prosecution evidence is the testimony of father of accused Honey Sharma i.e. Anil Sharma who deposed that on the date of alleged crime as also on the date of arrest, motorcycle bearing no. 5894 (used in the alleged crime) was being driven by accused Honey. Though in his 2nd cross examination which was conducted almost a year later, PW 8 deposed that his son was picked up from the house when he was sleeping, alongwith the motorcycle bearing no. 5894 which was parked in his house, yet he did not retract from his earlier chief examination statement that on the date of alleged incident and date of arrest, his son was driving the above said motorcycle. It is thus clear that in his reexamination, PW 8 made a feeble attempt to save his son but the same has not appealed to the Court.
27. There is also necessary corroboration with regard to time of arrest of the accused persons i.e. at 2.30 pm on 9.12.2009 in front of cremation ground on Syed Nangloi road. PW9 who was a part of the arresting team was cross examined twice. On both occasions, he was consistent with regard to time and place of arrest of accused persons. Further, testimony of PW 9 is consistent with the deposition Result: Convicted Page 32 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) of PW 10 Ranvir Singh (also a witness to the arrest) and PW 12 Investigating Officer regarding the time and place of arrest. There is also consistency amongst these 3 witnesses with regard to the manner of arrest i.e. the accused persons and juveniles were coming on a motorcycle when they tried to take U turn on seeing the police barricade whereafter they were caught after a brief chase. Ld. Defense Counsel has argued that it was not possible for policemen to have caught the accused persons since they were on a motorbike whereas the policemen were on foot. In this regard, it needs to be highlighted that the manner in which accused persons were apprehended was not such an extraordinary occurrence which has to be disbelieved on the face of it. Reports of policemen catching criminals/offenders with bare hands, sometimes even at the risk of their lives are published everyday. Infact, in a city like Delhi, traffic policemen catching traffic violators, especially motorbike drivers when they try to either turn back or evade the barricades, are a common occurrence and same happens in public view. There were 4 occupants on the motorbike which means that if they tried to stop short of the police barricade and then turn back, the speed and balance of the motorbike would have been such that it would not have Result: Convicted Page 33 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) been easy for them to have sped away immediately on turning back. Given the fact situation in the present case, it was quite probable for the police team to have caught the accused persons.
28. With regard to the recovery of articles from the nearby DDA park on the disclosure statements of juveniles, and motorcycle of the complainant & 'danda' from the house of accused Shiva, PW 9 and PW 10 were the seizure witnesses alongwith the Investigating officer. Their respective testimonies were consistent and corroborative of each other in regard to recovery of broken baseball bat (on the disclosure of juvenile Arun); recovery of broken helmet (on the disclosure of juvenile Hukum); and recovery of 'danda' and motorcycle of the complainant on the disclosure of accused Shiva. There is also corroboration between the testimonies of PW9 and PW 10 (both seizure witnesses) regarding the time at which the recovery witnesses reached the house of Shiva alongwith Investigating Officer i.e. 5.15 5.30 pm on 9.12.2009 (day of arrest).
Infact even with regard to the time taken for writing rukka, there is corroboration between the testimony of PW 3 and PW 4 both of whom deposed that ASI Inderpal took about 20 - 25 mins to prepare Result: Convicted Page 34 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) rukka.
29. Accused persons did not lead any defense evidence despite initially opting to do so. During the course of final submissions, ld. defense counsel could not offer any explanation regarding seizure of complainant's motorcycle from the house of accused Shiva. The only argument put forth was that if the motorcycle had actually been robbed, there was no reason for the accused to have kept it in his house for almost a month; instead he would have disposed it off at the earliest. This argument is countered by the fact that the motorcycle itself was in damaged condition i.e. head light and speedometer was found broken when it was recovered. This meant that accused did not take out the motorcycle for disposing off because he could not have disposed off the same in damaged condition as any effort to do so would have aroused suspicion on account of its damaged condition. If he had taken it for repair, there would have been a possibility of police getting to know about it since the police was already on the lookout for the accused persons and the motorcycle.
Result: Convicted Page 35 of 43State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016)
30. It is also important to deal with the additional plea that accused Shiva was falsely implicated by the IO since accused Shiva refused to supply milk to him. The plea is so frivolous that it does not even require a detailed discussion. It is patent that in the face of convincing and corroborative prosecution evidence, ld. Counsel for the accused Shiva came up with a plea which was just a formality.
31. Ld. Counsel for the accused persons, during the course of final submissions, also highlighted the following infirmities in the investigation -
i) During the recovery of motorcycle from the house of accused Shiva, no members from the general public or neighbourhood were associated.
ii) No photographs were taken of the place of recovery in accused Shiva's house cum dairy (i.e. freezer room)
iii) No statement of the family members of accused Shiva were taken down during seizure proceedings.
iv) The seizure/recovery witnesses could not even depose about the presence of family members of accused Shiva in the house Result: Convicted Page 36 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016)
32. In so far as nonjoining of independent witnesses for recovery proceedings are concerned, it is settled law that the same is not fatal to the investigative process. It is common knowledge that members of general public try to stay away from proceedings involving criminal investigation for fear of being cited as a court witness which is often viewed as a hugely inconvenient exercise by the citizens. Recording of statements of family members of the accused Shiva would have served no purpose since they would have never deposed in court regarding the recovery of motorcycle of the complainant from the dairy of accused Shiva. Absence of photographs at the time of recovery from the house of accused Shiva is not such a factor which can disprove the recovery itself though admittedly, had the photographs been taken, same would have lent more credence to the prosecution version.
33. Ld. Defense counsel also highlighted the following contradictions in the testimonies of prosecution witnesses
1. Statement of complainant was recorded in police station, as per PW 1 in his initial chief examination whereas Investigat ing Officer deposed that he recorded the statement of com Result: Convicted Page 37 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) plainant/ PW 1 in the hospital.
2. On the day of arrest, complainant was accompanied with his friend Deepak but his signatures don't appear on the ar rest memos or seizure memos.
3. HC Naresh who took the rukka to the police station deposed that he handed over the rukka to duty officer at 10.15 pm whereas duty officer PW 5 deposed that rukka was handed over at 10.40 pm.
4. PW 9 mentioned that they reached the house of accused Shiva at around 5.15 PM whereas PW 12 deposed that they reached the house of accused Shiva at 4.30 pm.
34. Regarding contradiction in relation to the place of recording of statement of the complainant, it appears for the reason that complainant was first taken to the police station before being shifted to the hospital for examination. It is obvious that in the police station he must have been generally questioned regarding the occurrence which probably led him to depose that his statement was recorded in the police station. Otherwise HC Naresh, Ct. Kuldeep and Result: Convicted Page 38 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) Investigating Officer, all three deposed regarding recording of statement of complainant in the hospital and preparation of rukka after that. Further, in his reexamination in 2017, PW 1 clarified that his statement was recorded in the hospital.
35. Regarding absence of signatures of Deepak on the arrest or seizure memos, same can hardly be said to be a material aspect which can put a doubt on the veracity of prosecution case. Deepak was not an eye witness or connected with the alleged crime in any manner. He just happened to be with the complainant when accused were arrested and identified by the complainant. There was no reason for the police team to obtain his signatures.
36. In so far as the 3rd contradiction regarding handing over of rukka is concerned, this appears to be a misunderstanding on the part of duty officer while answering the query in crossexamination since 10.40 pm is the time of registration of FIR.
37. Finally, the contradiction regarding time of reaching the house of accused Shiva has to be overlooked keeping in view that the Result: Convicted Page 39 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) witnesses were deposing after a long gap. Had there been contradiction with regard to the place of recovery or if the depositions regarding gap in time had been substantial, it might have affected the prosecution version but in view of the difference of 30 - 45 minutes in the respective testimonies of PW 9 and PW 12, same can be safely ignored.
38. To sum up, the complainant identified both the accused persons in the court as the ones who had assaulted him alongwith 2 juveniles on 20.11.2009 when he was going to his office on his motorcycle and had robbed him (of his motorcycle). He further identified the motorcycle on which the accused persons had come and waylaid him as also the weapons of offence with which he was given beatings i.e. baseball bat and wooden stick. The motorcycle being driven by accused Honey Sharma was in the ownership of his father Anil Sharma who deposed that the said motorcycle was being used by his son Honey on 20.11.2009 (date of robbery). The official witnesses have corroborated even minor aspects of the investigation such as time taken to prepare rukka. Ld. Counsel for the accused persons have not been able to highlight any factor which would convince the court to Result: Convicted Page 40 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) disbelieve the prosecution version or offered any argument which could convince the Court that Investigating Officer has falsely implicated the accused persons. Further, identification of the accused persons by the Complainant, coupled with absence of any allegation/assertion of previous enmity between the Complainant and accused persons confirms the veracity of the Complainant's testimony.
30. In view of the above discussion based on appreciation of evidence on record and rival submissions of the ld. counsel, it stands proved beyond all reasonable doubt that on 20.11.2009, the accused persons alongwith juveniles Hukum and Arun, waylaid the complainant on a motorcycle and assaulted the complainant with a baseball bat and a wooden stick resulting in complainant falling on the ground and sustaining a grievous injury i.e. fracture of left ulna in the forearm. Thereafter, the juveniles alongwith the accused persons took away the motorcycle of the complainant and ran away. Both, accused Shiva @ Gujjar and Honey Sharma, have been charged under section 392 read with section 34 IPC, and section 394 read with section 34 IPC and also read with section 397 IPC. Additionally, accused Shiva Result: Convicted Page 41 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) @ Gujjar has been charged under section 411 IPC. Evidence on record has proved beyond reasonable doubt that both the accused persons (alongwith 2 juveniles) voluntarily caused hurt to the complainant while committing theft of his motorcycle and thus committed robbery. Consequently, Charge u/s 392 as also section 394 stands proved. However, the complainant in his chief examination recorded in 2017, did not specifically allege against any of the accused persons that either of them specifically caused the injury on his left forearm resulting in grievous hurt i.e. fracture. In the understanding of the Court, offence u/s 397 is offender specific. In the absence of proof of grievous hurt having been caused specifically by either of the accused persons, Charge under section 397 could not be proved. Complainant's motorcycle, which was the subject matter of robbery, was recovered from the house cum dairy of accused Shiva @ Gujjar who had retained the motorcycle knowing it to be stolen. The recovery of motorcycle has been duly proved by the PW's in their testimony. Consequently, Charge u/s 411 of the IPC stands proved against accused Shiva @ Gujjar.
40. In view of the foregoing discussion, this Court holds Result: Convicted Page 42 of 43 State Vs. Shiva @ Gujjar etc. FIR 282/2009 (57659/2016) that the Charge against both the accused persons namely Shiva @ Gujjar and Honey Sharma u/s 392 and 394 IPC (read with section 34 IPC) has been duly proved and they are thus, held guilty and convicted of the same. However, both the accused are acquitted of Charge under section 397 IPC.
Prosecution has also proved the Charge for the offence punishable u/s 411 IPC against accused Shiva @ Gujjar and thus, he is also held guilty and convicted of the same.
Be heard on the point of Sentence.
ANNOUNCED IN THE OPEN ( AJAY GULATI )
COURT ON: 06.06.2019 ASJ05 (West), THC, Delhi.
Result: Convicted Page 43 of 43