Delhi District Court
State vs 1. Vineet @ Rinku on 23 December, 2019
CNR No.DLNW010018512016
FIR No. 2380/15 PS Mangol Puri
U/s 307/394/397/34 IPC & 174A IPC
IN THE COURT OF ADDITIONAL SESSION JUDGE 03
NORTHWEST : ROHINI : DELHI
Session Case No. 53112/16
Session Case No. 1077/19
CNR No.DLNW010018512016
FIR No. 2380/15
PS. Mangol Puri
Under Section 307/394/397/34 IPC
174A IPC
State Versus 1. Vineet @ Rinku
S/o Sh. Raja Ram
R/o M779, Mangol Puri
Delhi
2. Vijay @ Ganja
S/o Sh. Puran Das
R/o M849, Mangol Puri
Delhi
3. Ameen
S/o Sh. Wali Mohd.
K589, Mangol Puri
Delhi
Date of FIR : 09.12.2015
Date of Committal : 19.04.2016
Date of receipt in this Court : 04.10.2019
Date of Argument : 23.12.2019
Date of Judgment : 23.12.2019
Sh. Shiv KumarI, Ld. APP for State
Sh. Paramjeet Singh, Ld. Counsel for all accused
SC No. 1077/19
SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 1 of 26
CNR No.DLNW010018512016
FIR No. 2380/15 PS Mangol Puri
U/s 307/394/397/34 IPC & 174A IPC
Order/Judgment: Accused Vineet @ Rinku and Vijay @ Ganja
are found guilty of offence u/S 394 IPC and
are acquitted of the charges u/S 506/307 IPC.
Accused Ameen is acquitted of all the charge
except for the offence u/S 174A IPC in respect
of which he has pleaded guilty.
JUDGMENT
1. Criminal justice delivery system was set in motion when complainant (PW9) Neeraj Kumar S/o Sh. Amar Singh R/o A55, Vill. Begumpur Extension, Opp Maharaja Agarsen College, Sector 22, Rohini, Delhi aged about 32 years, dialed 100 number at 22:24:34 on 08.12.2015 and informed that "CALLER KO GUN DIKHA KR OR EK FIRE BI KRA OR RS 2,50,000 CHIN KR LE GAYE DL2554 SWIFT WHITE COLOR KI CAR ME THEY 3 LOG".
2. PCR forwarded this message to the PS Mangolpuri which information was recorded in the police station vide DD No. 48A at 10:27 PM and was assigned to (PW20) SI Jagpal Singh who along with Ct Sandeep (PW15) went to the spot where complainant (PW9) Neeraj met and got his statement recorded to the effect that he was engaged in the business of property dealing and finance. Four years ago he had given loan of Rs 40,000/ to Rinku but Rinku never returned his money and whenever he used to ask for return of the money Rinku used to defer on one or other pretext. On that day i.e. on 08.12.2015 at about 10:15 PM when he was standing in front of C181, DDA Mini Market, Mangol Puri Ameen, who is ruffian type person, SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 2 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC along with his two friends Rinku and Vijay @ Ganja whom he (complainant) knew beforehand, in their own Swift Car 2554 came near the shop and Vijay @ Ganja who was sitting by the side of driver, seat called him (complainant).
3. On being called complainant went up to the car and saw that Ameen was sitting in driver seat whereas Rinku was seating on the backseat and Ameen in a threatening voice asked complainant as to why he demands his money back from Rinku. Ameen further told him that he should forget his money otherwise he (complainant) would be disposed of. Rinku and Vijay @ Ganja echoed the same while Vijay @ Ganja indicated towards the pistol which he had in his dub. Complainant sensing danger/risk rushed towards the Mini Market. All three also ran after him and he saw that Ameen fired from behind but it did not hit any one. While running complainant fell down near shop No. C198. All three reached there and started beating him with legs and fist. Ameen put pistol on him and took out Rs 2,50,000/ from his pocket and thereafter all three fled from the spot on the car and he called Police by dialing at 100.
4. On the statement of the complainant (PW9) Neeraj, SI Jagpal prepared rukka and got present FIR registered and undertook the investigation of the present case. Complainant was got medically examined where his injury on the person of the complainant was reported to be "Simple Injury". At the instance of the complainant site plan of the place of incident was prepared but no empty cartridge or gun shot residue or lead was found at the place of incident despite SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 3 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC sever search. Complainant did not know the address of Rinku and Vijay @ Ganja but he knew the address of the Ameen so he took the police to house of Ameen at K589, Mangol Puri where mother of the accused Ameen met them and told that accused Ameen reside there but had not returned.
5. On 9.12.2015 complainant vide his PCR call bearing DD No. 22A informed that assailants had also snatched his Samsung mobile phone containing SIM No. 9289953459 about which he could not mention in his statement. During investigation complainant had told that sum of Rs 2,50,000/ which was robbed of him was being taken by him to give to his friend Manoj. He had further told that out of Rs 2,50,000/ he had borrowed Rs 2 Lacs from his bhabhi Neetu Rani. During investigation statement of Manoj and Neetu Rani were recorded.
6. Later accused Vineet and Vijay @ Ganja were arrested, their disclosure statements were recorded wherein accused persons have admitted of their guilt and given account and reason of the incident in & for which they carried out the same. Robbed money and used weapon were stated to be with accused Ameen. On the direction of Session Court mobile location of the accused Vineet and Vijay @ Ganja were taken out and as per which mobile phone of accused Vineet @ Rinku was found to be switched off 08.12.2015 at 7.50 PM in Mangolpuri and was switched on 09.12.2015 at 08.43 AM in Mangolpuri area. Location of mobile phone of accused Vijay was also found in the same area at the time of incident. Accused Ameen could SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 4 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC not be arrested.
7. After investigation charge sheet was filed before ld concerned Magistrate who took cognizance of the offense and after compliance of provision under Section 207 CrPC present case was committed to Session Court.
8. Later on accused Ameen was arrested by Crime Branch and was produced before the concerned court where from accused Ameeen was arrested in the present case and investigation was further undertaken. After interrogation accused Ameen admitted of his guilt and his disclosure statement was recorded and he further disclosed that Swift car used was of his friend Kalu whose address he did not know. He had further disclosed that weapon used was thrown by him in a moving goods vehicle. He further disclosed that robbed Samsung mobile phone was thrown by him in a bush near ganda nala Mangolpuri. When accused Ameen was taking police party to get the mobile phone recovered complainant met them on way and he also accompanied the police party and accused complainant. Accused Ameen got the mobile phone of grey and black colored recovered which complainant identified as the one which was robbed of him on the day of incident by the accused persons. After completion of investigation supplementary charge sheet was filed and after compliance with provision of Section 207 CrPC same was assigned to the court where main charge sheet was pending trial.
9. Prima facie finding offenses having been made out, Ld. SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 5 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC Predecessor of this court was pleased to frame charge under Section 506/34, 307/34, 394/34 against accused Vineet @ Rinku and Vijay @ Ganja and same charges were framed against accused Ameen.
10. During the trial of the present case accused Ameen stopped appearing and such proceedings under Section 82 and 83 Cr PC was carried out against him and was subsequently declared Porclaimed offender vide order dt. 29.03.2016 and when he appeared subsequently a supplementary charge sheet was filed and accused Ameen was also charged with offense under Section 174A IPC butthis was done almost almost after final argument were addressed and it was relaised that charge under Section 174A IPC was inadvertantly not framed.
11. In order to bring home charges against accused persons prosecution examined as many as 22 witnesses.
11.1. PW1 HC Nareder Singh was the duty officer on 8.12.2015 from midnight to 8.00 AM of 9.12.2015. He sought to prove registration of FIR PW1/A in the present case through computer operator, upon receipt of rukka from Ct. Sandeep. He also sought to prove certificate under Section 65B Ex PW1/B of the Indian Evidence Act and his endorsement Ex PW1/C on rukka.
11.2. PW2 HC Veena was duty officer on 8.12.2015 in PS Mangolpuri from 8:00 AM to 4:00 PM. She sought to prove DD No. 22A Ex PW2/A vide which information made by caller/victim to PCR SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 6 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC was forwarded to the PS. She also proved the DD No. 48A Ex PW2/B by bringing original DD register.
11.3. PW3 Dr. Rohit Kumar was the CMO in Sanjay Gandhi Memorial Hospital on 8.12.2015. He sought to prove MLC Ex PW3/A of patient/complainant Neeraj Kumar. Patient was reported to have suffered simple injuries.
11.4. PW4 Sh. Manoj Kumar is the one to whom complainant/victim was allegedly proceeding to give sum of Rs 2,50,000/ which was allegedly robbed by accused persons. He sought to prove that he had requested complainant Neeraj to lend him Rs 2,50,000/ and Neeraj was to give said amount to him on 8.12.2015 and that Neeraj later informed him telephonicaly that a quarrel had taken place with Rinku and Vijay @ Ganja and he would not be able to give money to him.
11.5. PW5 Ct. Deepanshu was posted at CPCR on 08.120.2015.
He sought to prove that he received call of the incident from mobile No. 8882283378 to the effect that "caller ko gun dikha kr or ek fire bi kra or rs 250000 chin kr le gaye DL2554 swift white color ki car me they 3 log" which he filled in the PCR form Ex PW5/A and forwarded the same to concerned quarter for immediate action. He also sought to prove certificate under Section 65B Ex PW5/B of the I.E. Act.
11.6 PW6 SI Devender was posted at PCR Control Room and SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 7 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC sought to prove handing over printout of PCR form No.1 Ex PW5/A of CPCR/PHQ from the information stored in server of Delhi Police Control Room with respect to CPCRDD No. 08DEC151400270. He also sought to prove certificate under Section 65B Ex PW5/B of I.E. Act.
11.7. PW7 Sh Rajeev Ranjan is the Nodal Officer of Tata Tele Services. He sought to prove Consumer Application Form (CAF) Ex PW7/A of mobile connection No. 9288953459 along with ID proof. He also sought to proof Call Detail Record (CDR) ExpW7/B of the said mobile connection number. He had also brought CAF Ex PW7/C, CDR Ex PW7/D of mobile number 9210200286. He also sought to prove certificate Ex PW7/E under Section 65B of the Indian Evidence Act and Cell ID chart Ex PW7/F1 and Ex PW7/F2 of both above mobile phone numbers.
11.8. PW8 Sh. Shishir Malhotra is Nodal Officer Aircel Ltd. He sought to prove CAF Ex PW8/A, CDR Ex PW8/B and Cell ID Chart Ex PW8/C of mobile phone 8285506703 and certificate under Section 65B Ex PW8/D of I. E. Act.
11.9. PW9 Neeraj Kumar is the complainant, victim and star witness. He supported the prosecution version except on the point of identification of the accused persons. He was declared hostile and was cross examined by Ld. APP for the State. He admitted of his complaint Ex PW9/A bearing his signature at point A but deposed that it was signed by him without going through the contents thereof.
SC No. 1077/19SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 8 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC 11.10. PW10 Ms Neetu is the sisterinlaw of the complainant Neeraj from whom he had allegedly taken Rs 2 lac. She sought to prove the same.
11.11. PW11 Ct. Sandeep Sehrawat was posted as DD writer in PS Mangolpuri from 4:00 PM to midnight on 08.12.2015. He sought to prove the DD No. 55B Ex PW11/A whereby Ct. Manish, Ct. Raj Kumar, Ct. Raju, Ct. Manoj, Ct. Satbir, Ct. Kanhiya, Ct Surender and Ct. Virender had gone on patrolling duty in the area of P.S. Mangolpuri on 08.12.2015. He also sought to prove DD No. 48B Ex PW11/B dt. 09.12.2015.
11.12. PW12 ASI Mahesh sought to prove how accused Ameen was arrested by Crime Branch following a secret information, along with one Snadeep @ Rahul who was found with stolen motorcycle. He sought to prove the arrest memo Ex PW12/A, personal search memo Ex PW12/B and his disclosure Ex PW12/C. Maruti car of accused Ameen was seized vide seizure Memo Ex PW12/D. 11.13. PW13 Ct. Manish was on patrolling duty in the night of 08.12.2015. He had reached the spot and found SI Jagpal along with Ct. Sandeep and he joined investigation. Empty bullet and cartridges were searched but could not be found.
11.14. PW14 ASI Gurcharan was posted at PS Mangolpuri on 09.12.2015. He sought to prove that he contacted the caller on his mobile phone No. 8882283378, after receiving the information vide DD SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 9 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC No. 22A regarding robbery of mobile phone, upon which caller had informed him that FIR was already registered but robbery regarding the mobile number was not mentioned and his robbed mobile number was still on and from the robed mobile his brother was threatened by the robber.
11.15. PW15 Ct. Sandeep along with SI Jagpal had gone to the spot following the receipt of DD No.48A on 8.12.2015. He sought to prove the recording of the statement of the complainant Neeraj Kumar regarding the incident and activity that went on 8.12.2015.
11.16. PW16 Ct. Birju Yadav was posted as DD writer in PS Mangolpuri on 19.04.2016. He sought to prove the DD No. 14B Ex PW16/A vide which arrest of accused Amin by Crime Branch was intimated to the PS Mangol Puri.
11.17. PW17 Ct. Sunil Sharma was posted at PS Mangol Puri on 03.01.2016. He sought to prove investigation carried out on 03.01.2016 on which day accused Vineet @ Rinku and Vijay @ Ganja were arrested vide arrest memo Ex PW9/d and Ex PW9/C, their personal search vide Ex PW9/D1 and Ex PW9/C1 and their disclosure statement Ex PW17/A and Ex PW17/B and pointing out memo Ex PW17/C and PW17/D prepared at their instance.
11.18. PW18 HC Nityadev was the MHC(R) of PS Mangol Puri. He sought to prove the previous involvement of the accused Ameen by bringing record Ex PW18/A. SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 10 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC 11.19. PW19 HC Sachin Yadav was the DD writer on 08.12.2015 in PS MangolPuri. He sought to prove DD No. 48A Ex PW2/B. 11.20. PW20 SI Jagpal Singh is the investigating Officer.
He sought to prove his investigation.
11.21. PW21 Ct. Sunil sought to prove his joining of investigation on 21.04.2016 and further sought to prove arrest of accused Ameen and his pointing out memo prepared at the pointing out of the accused Ameen.
11.22. PW22 HC Prem Singh sought to prove the articles recovered on personal search of the accused Vineet @ Rinku and Vijay @ Ganja and their deposit in maalkhana vide entry No. 3220 Ex PW22/A . He also sought to prove deposit of one pullinda containing one mobile phone , in maalkhana vide entry No. 3574 on 22.04.2016.
12. After closing of prosecution evidence, all incriminating substance appearing in evidence against the accused persons were put to them and their respective statement under Section 313 CrPC was recorded. Accused persons did not wish to lead evidence in defense.
13. Ld. APP for the state and Ld. Counsel for defense were heard at length.
SC No. 1077/19SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 11 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC
14. Ld. APP for the State has submitted that prosecution has successfully proved its case beyond reasonable doubts. He submitted that complainant PW9 Neeraj had given detail account of the incident which took place when accused persons met him. Defense has not disputed the happening of the incidents with complainant. He has further submitted that although the star witness i.e. complainant Neeraj Kumar PW 9 turned hostile on the point of identification, but despite being hostile he had deposed in support of prosecution version to an large extent. He contends that PW9 had supported the prosecution version to the extent that incident of robbery, threatening and attempt to murder on his life had taken place. He also supported the prosecution to the extent that assailants were three in number. He further supported the prosecution version to the extent that he was taking a sum of Rs. 2,50,000/ for delivering to Manoj PW4.
15. He further submitted that although witness did not identify the assailants but it is a matter of record that he got the FIR recorded in which he had named all the three accused persons. He further submitted that complainant had admitted that he made the complaint and had also admitted his signature on the complaint. He has further argued that the accused persons were arrested only on the identification of the complainant and therefore the persons named in the FIR were arrested pursuant to the identification by the complainant. The arrest memo of the accused persons are duly signed and witnessed by the complainant which goes to show that the accused persons facing trial were the persons who were arrested at the instance of the complainant following his complaint Ex.PW9/A on SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 12 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC the basis of which present FIR Ex.PW1/B was registered. He has further submitted that other police witnesses have categorically deposed that the accused persons were arrested at the instance of the complainant and defense was unable to elicit anything from them to support their stand. He has further submitted that complainant clearly appears to have been threatened by the accused persons and only because of fear, he has not deposed on the point of identification. He has submitted that court has to take into account the facts and circumstances of the case and thus in facts and circumstances, prosecution has been successful in proving its case beyond reasonable doubts.
16. On the contrary, Sh. Paramjeet Singh Ld. Counsel for the defense has argued that complainant categorically deposed in his cross examination that he had not stated the names of the accused in his complaint. He has further submitted that complainant has categorically not identified the accused persons in the court and once witness or the victim has shown inability to identify the accused persons, the accused persons cannot be convicted at all. He has further submitted that neither any recovery has been effected from the accused persons nor has recovery of any vehicle/weapon been shown. He has further submitted that admittedly empty cartridges or fired bullets have not been traced at the spot nor any public witness have been examined who might have heard of any such incident, if at all it had taken place. It is further argued that it cannot be believed that in a market place not a single person would be available at least to confirm that any such incident had taken place. He further SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 13 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC submitted that in any case prosecution has failed to prove that it were accused persons who have enacted the incident under trial. He has further relied upon judgment in Khekh Ram Vs. State of H.P. in Crl. Appeal no. 1110 of 2016 dated 10.11.2017 passed by Hon'ble Supreme Court of India to contend that if two views of an incident are possible one which inculpate and the other which exculpate the accused persons then the version which favors the accused has got to be adopted. He has further submitted that even if contention of Ld. APP for the State is accepted even then since the incident calls for drawing of two views, therefore, the view which is favorable to the accused is got to be adopted. Accordingly, he has sought acquittal of the accused persons from the case.
Analysis
17. Before starting with the appreciation of testimonies of witnesses, it would be worthwhile to note that testimonies of many of the witness have not been disputed by the defense by not subjecting the witnesses to cross examination. The witnesses who have not been cross examined at all are PW2, PW5, PW6, PW7, PW8, PW11, PW14, PW16, PW18, PW19 and PW22.
18. As noted above PW2 HC Veena sought to prove DD no. 48 A dated 08.12.2015 and DD no. 22A dated 09.12.2015. PW5 Ct. Deepanshu and PW6 SI Devender sought to prove the PCR form in which call made to the 100 number by the complainant was recorded.
19. PW7 Rajeev Rajan and PW8 Sh. Shishir Malhotra are the SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 14 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC nodal officers of telecom services provider and it was proved that mobile number 9288953459 stood in the name of Neeraj, mobile no. 9210200286 stood in the name of Vijay Kumar and mobile number 8285506703 stood in the name of Rakesh Kumar, allegedly being used by the accused Vineet @ Rinku.
19. PW11 Ct. Sandeep sought to prove DD no. 44B and 55B, both dated 09.12.2015. PW14 ASI Gurcharan sought to prove that he met the complainant who had informed that he could not mention about the robbery of his mobile phone in his previous complaint.
20. PW16 Ct. Birju sought to prove DD no. 14B vide which information regarding the arrest of accused Ameen was forwarded by PS Mangol Puri by Crime Branch. PW18 HC Nityadev sought to prove record of previous involvement of the accused Ameen. PW19 HC Sachin Yadav sought to prove DD No 48A vide which incident of robbery was communicated from PCR to police station and PW22 sought to prove Register no. 19 in which after recovery of mobile phone robbed of complainant, it was deposited in the maalkhana vide entry made at S No. 3574.
21. Thus, from the unquestioned testimonies of above named witnesses prosecution has successfully proved that PW9 Neeraj gave a call to PCR on 8.12.2015 whereby informing that he had been beaten and robbed of Rs 2,50,000/ by three assailants with failed attempt on his life by firing and that assailants had run away in a Swift Car bearing registration No. DL....2544. It further stands proved that said SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 15 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC information to PCR was communicated to Police Station Mangolpuri and was recorded in the Daily Diary vide DD No. 48A Ex PW2/B on 8.12.2015. It further stands proved that upon such information, PW20 SI Jaspal Singh along with PW15 Ct. Sandeep went to the spot where complainant PW9 Neeraj Kumar met them and got his statement Ex PW9/A recorded wherein complainant narrated the incident of beating, attempt on his life and robbery that had taken place with him and wherein he also mentioned the name of the assailants. It also stands proved that following the statement Ex PW9/A of the complainant, present FIR Ex PW1/A was registered. It also stands proved that later on complainant told police that in the incident of robbery about which he had made complainant he forgot to mention that his mobile phone was also robbed. It further stands proved that accused Ameen was involved in many other case as per list Ex PW18/A. It has also been proved that mobiles No. 9288953459 stood in the name of Neeraj, 9210200286 stood in the name of Vijay Kumar and 8285506703 stood in the name of Rajesh R/o M779, Mangolpuri, Delhi which also the resident of accused Vineet @ Rinku.
22. Complainant PW9 Neeraj is star witness as he is both complainant and victim as well. He in his testimony has largely supported the case of the prosecution except on the point of identification of the accused persons. Interestingly, even defense did not dispute happening of beating, firing and robbery with the complainant by putting contrary suggestion to him. In this circumstance question which falls for consideration in the present case is - whether in the absence of identification of the accused in the SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 16 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC Court by the victim and there being no other eye witness, accused persons can still be convicted if other circumstances of the case otherwise proves that victim/complainant for reason best known to him deliberately did not identify the accused persons?
23. As noted above complainant otherwise has supported the case of the prosecution to the extent that instant FIR was registered at his instance and investigation was carried out when he made complaint to the police to the effect that he was standing near a shop where three persons namely Vineet, Vijay and Ameen (in testimony however he denied to have mentioned any name of the accused in his statement Ex PW9/A) came in a Swift car bearing Registration No. DL
-2554 and had threatened him against asking for return of his loan amount from accused Vineet and when he tried to run away from the spot he was chased by all the three and one of them had fired at him and when he fell down he was beaten by all the three and a sum of Rs. 2,50,000/ and one mobile phone was robbed of him by them.
24. As the FIR was by name accused Vineet and Vijay were searched for and subsequently pursuant to secret information they were arrested on the identification of the complainant. Their arrest memo Ex. PW9/C and Ex. PW9/D respectively are duly witnessed by the complainant /victim PW9 and these memos bear signature of PW9 Neeraj and he admits of the same. Their respective personal search memos Ex.PW9/D1 and Ex.PW9/G also bears signature of the complainant PW9 and he also admits of the same in his testimony.
SC No. 1077/19SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 17 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC
25. That the accused Vineet and Vijay were arrested at the instance and identification of the complainant PW9 Neeraj is also corroborated by PW17 Ct. Sunil Sharma and PW20 SI Jaspal Singh. PW17 Ct. Sunil Sharma in his testimony deposed that he had joined investigation with the IO along with Ct. Amit and complainant Neeraj Kumar met them at Sr. Secondary School, KBlock Mangolpuri and thereafter all of them had gone to SBlock, Chowk Mangolpuri where secret informer met them and where accused Vineet @ Rinku and Vijay @ Ganja was supposed to come from the side of Nangloi. He further deposed that when they came informer pointed out and they were over powered and complainant Neeraj identified both of them. IO also deposed on the same line on the aspect that accused Vineet @ Rinku and Vijay @ Ganja were arrested in aforesaid manner on the identification by the complainant PW9 Neeraj.
26. In the cross examination of PW17 Ct. Sunil Sharma not a single suggestion was given that accused Vineet and Vijay were not arrested on the identification of the complainant PW9 Neeraj. Similarly, in the cross examination of IO PW20 no suggestion was given that complainant was not present at the time of the arrest of the accused Vineet @ Rinku. No suggestion was given that complainant had not joined in the investigation. No suggestion was given to PW20 Japal Singh that in the statement of the complainant no name of the accused persons were mentioned by the complainant. No suggestion was given that the name of the accused persons were inserted by the IO on his own or at the instance of someone else other than the complainant. No evidence has been led by the defense to suggest any SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 18 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC particular reason for falsely implicating the accused persons by the IO in the present case.
27. No ground has been put forth by the defense as to how name of the accused persons came to be mentioned in the statement of the complainant Ex.PW9/A. PW9 Neeraj has deposed about the robbery with him that too by three persons and of the recording of his statement by the police. He also testified that he never used to sign documents without going through the contents of the same. Complainant PW9 Neeraj had voluntarily deposed that he did not know accused persons but at the very same time he admitted that accused Vineet @ Rinku is present in the court and had borrowed from him Rs 40,000/. He also admitted that at the time of robbery his mobile bearing no. 9288953459 was also robbed. He also admitted that he forgot to mention in his complaint Ex. PW9/A about the robbery of his mobile phone also. He also admitted that robbers had come in a Swift car. He also admitted that during the robbery he had sustained simple injuries given by the robbers. He had also admitted that he had informed about the registration number of the Swift car as 2554. He also admitted that he was carrying Rs. 2,50,000/ on the day of incident for giving the same to his friend PW4 Manoj who had asked for said money for his need. He also admitted that his friend Manoj received telephonic call from his snatched mobile phone No. 9233953459 from accused Ameen on 09.12.2015 and accused Ameen threatened PW4 Manoj in this context. He also admitted that he made a call at 100 number on 09.12.2015 regarding the threat extended by accused Ameen. He also identified the snatched mobile SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 19 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC phone Ex.P1 which was allegedly recovered from the accused Ameen. As noted above in cross examination defense did not dispute the incident of robbery as stated by complainant PW9 Neeraj nor has it disputed that complainant was carrying Rs.2.5 lacs at the time of incident.
28. Thus, from the testimony of PW9 Neeraj it stands proved that incident of beating and robbery took place with him on 8.12.2015 at about 10:15 PM and said beating and robbery was committed by three persons. It also proved that he had got his statement recorded wherein he had mentioned names of the accused persons Vineet @ Rinku, Vijay @ Ganja and Ameen. PW15 Ct Sandeep and PW20 SI Jaspal Singh corroborates the recoding of the statement Ex PW9/A of the complainant. No suggestion was given to PW20 Jaspal that complainant had not told name of the assailants or that he on his own or at the instance of other had inserted the name. PW9 Neeraj categorically admitted that he had signed the arrest memo Ex PW9/C and Ex PW9/D and personal search memo Ex PW9/C1 and Ex PW9/D1 of accused Vineet @ Rinku and Vijay @ Ganja after going through the contents of the same. He however denied the suggestion that accused Vineet @ Rinku and Vijay @ Ganja were arrested at his instance.
29. Perusal of the record shows that when complainant had come for his testimony on 29.08.2016, after his part chief examination he expressed his inability to depose further stating that he was not feeling well and was not in a position to testify on that day and SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 20 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC requested for adjournment. Ld. Predecessor of this court observed that witness was feeling little bit upset and made inquiry from him as to whether he has been threatened by anyone or not. It was further observed that though he had not said anything in that regard against any accused yet keeping in mind his persistent request for adjournment his further examination was deferred.
30. Next time i.e. on 01.03.2017 after seeing all the three accused persons present in the court he deposed that he had seen them in Mangolpuri area but he could not say whether they had robbed him during the aforesaid incident or not. He further deposed that it was night time and therefore, he could not see their face.
31. From his testimony it is clear that on the point of identification he did not tell the truth to the court. It may be so either because he was threatened by the accused persons or has been won over by the accused persons. Since possibility of threatening as well as possibility of win over is in balance therefore, this court is not directing any action against PW9 Neeraj for turning hostile only on the point of identification as that might enhance his problem if he was threatened to depose against the accused persons.
32. Be that as it may, it is well settled that testimony of even hostile witness can be taken into account to the extent it supports the case of prosecution. Further it is settled that evidence of a witness who has been declared hostile can be relied upon if there are some other material on the basis of which said evidence can be corroborated.
SC No. 1077/19SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 21 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC
33. In the present case it stands proved from the testimony of PW20 SI Jagpal Singh that complainant had named accused persons in his statement Ex PW9/A. No plausible explanation or reason has come to the fore as to why police man particularly IO will insert name of the accused persons in the statement of complainant. Complainant admitted that he always used to sign document after going through the contents thereof. All this go to show that complainant had named accused persons in his complainant. Further from the testimony of PW17 Ct Sunil and PW20 SI Jagpal coupled with admission of complainant about his signature on arrest memo Ex PW9/C and Ex PW9/D of accused Vineet @ Rinku and Vijay @ Ganja, it stands proved that accused Vineet and Vijay were arrested at the instance and identification of the accused persons. Further, accused Rinku and Vijay met the complainant on 8.12.2015 in the manner/way stated by the complainant is also corroborated by PW4 Manoj who in his testimony deposed that complainant had told him that he had quarrel with accused Rinku and Vijay. Hence, this court hereby hold that prosecution has successfully proved beyond reasonable doubt that accused Vineet @ Rinku and Vijay @ Ganja were involved in the incident of robbery and beating of the complainant on 8.12.2015 as complained by him and noted above and are thus guilty of offense under Section 394 read with Section 34 of IPC.
34. So far as accused Ameen is concerned, in view of above discussion it also stands proved that he was also named by the complainants in his statement Ex PW9/A. However, he was arrested SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 22 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC by Crime Branch and thereafter he was arrested in the present case vide arrest memo Ex PW20/3 when he was produced in the court following his arrest under Section 41(d) of Cr PC by Crime Branch on 19.04.2016. Thereafter two days police remand of the accused Ameen was allowed by the Ld MM vide its order dt 21.04.2016.
34. It is the case of the prosecution that accused Ameen got recovered robbed mobile phone of complainant from near Ganda Nala Mangolpuri. It is the case of the prosecution that aforesaid recovery was effected in the presence of the complainant and said mobile phone was seized vide seizure memo Ex PW9/G which bears the signature of the complainant. Complainant admits of his signature on seizure memo Ex PW9/G and also identified the mobile phone but denied to have witnessed its recovery from Ganda Nala Mangolpuri in his presence. The seizure memo also shows Ct Birju bearing belt No. 2372 as witness to the said recovery of mobile phone. Said constable is also author of DD No.14B Ex PW16/A. Said Ct. Birju was examined in the court as PW16 but he only proved recording of DD No.14B dt 19.04.2016 and did not depose anything about the recovery of mobile phone of make Samsung at the instance of the accused Ameen on 22.04.2016 and about same being identified by the complainant as belonging to him.
35. As noted above incident of robbery has not been disputed by the defense. It has also not been disputed by defense that robbers took away the mobile phone of the complainant as reported by him subsequent to making of his statement Ex PW9/A. It has also been SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 23 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC admitted by the complainant that next day of the incident PW4 Manoj had received a phone call from accused Ameen from the same mobile phone number which was robbed by the accused persons but PW4 Manoj has denied of receiving of any phone call from accused Ameen.
36. Prosecution has relied upon Call Detail Record Ex PW7/B to show that from snatched mobile number 9289953459 a call was made to PW4 Manoj 9266864446 on 9.12.2015 at 05:59:30 but nothing has been placed on record to suggest that mobile number 9266864446 belonged to PW4 Manoj nor Manoj was made to admit that said number was his. Further perusal of CDR Ex PW7/B shows that mobile phone No. 9289953459 was active throughout till 21:18:51 of 22.12.2015 when new IMEI number is shown which means that said number became active in different mobile set. In any case it shows that mobile phone of the complainant remained switched on throughout which is very unnatural that one would keep the snatched phone active.
37. Though PW20 IO Jaspal Singh categorically deposed that accused Ameen during police remand took the police party near Ganda Nala Mangolpuri and got the mobile phone which was kept in a polythene recovered from bush but in view of categorical denial by the complainant about the involvment of the accused persosn and in view of complete silence by PW16 Ct Birju about the said alleged recovery, the recovery of snatched mobile phone of complainant at the instance of the accused Ameen is doubtful.
38. Thus, although accused Ameen is also named in the SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 24 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC statement Ex PW9/A of the complainant but neither he was identified in the court by the complainant nor it was proved on record that he was arrested at the instance of complainant nor prosecution successfully proved that snatched mobile phone of the complainant was recovered at the instance of the accused Ameen nor was it proved that on the next day of the incident accused Ameen had called PW4 Manoj and threatened him, therefore, involvement of the accused in the present incident is very doubtful. Thus prosecution failed to prove that accused Ameen was involved in the present robbery and beating.
39. So far as attempt on life of the complainant by firing is concerned, suffice it to say that except for the testimony of complainant that a firing took place, nothing like empty cartridges, lead or any other sign of firing has been recovered from the spot. Hence, all the three accused persons are acquitted of the offense under Section 307 IPC.
40. So far as offense under Section 506 IPC is concerned as complainant in his testimony in the court did not depose about threatening by any of the accused persons, therefore, all the accused are acquitted of the offence u/S 506 IPC.
41. As noted above accused Ameen was declared Proclaimed offender and charge under Section 174A IPC was framed on 24.10.2019 almost after completion of final argument to which he had pleaded not guilty and had claimed trial. But today i.e. on 23.12.2019, accused Ameen got his statement recorded to the effect that he accept his guilt for offence u/S 174A IPC and requested that trial may be SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 25 of 26 CNR No.DLNW010018512016 FIR No. 2380/15 PS Mangol Puri U/s 307/394/397/34 IPC & 174A IPC dispensed with and he may be leniently punished, preferably with fine. His separate statement to this effect was recorded. Accordingly, further trial qua offense under Section 174A was dispensed with and final argument were concluded.
42. Thus, in view of the afore said reasoning and discussion accused Vineet @ Rinku and Vijay @ Ganja are hereby convicted of offense u/S 394 IPC and are acquitted of the offense u/S 506/307 IPC. Accused Ameen is acquitted of all the charges except offense u/S 174A IPC in respect of which he has pleaded guilty and is accordingly hereby convicted of offense under Section 174A IPC.
Digitally signedHARISH by HARISH KUMAR KUMAR Date: 2019.12.24 12:13:07 +1300 Announced in open court (HARISH KUMAR) on 23.12.2019 ADDL. SESSIONS JUDGE - 03, (Judgment contains 26 pages) NORTH WEST, ROHINI COURTS NEW DELHI SC No. 1077/19 SC No. 53112/2016 State vs. Vineet @ Rinku etc. Page No. 26 of 26